On the 16th night of December 2012 a horrific incident claimed the life of a 23 year old Nirbhaya. There were 6 hideous men jointly responsible for having committed this brutal crime. 13 days after this the victim breathed her last at a hospital in Singapore after her medical reports testified to the dastardly treatment she had been subjected to. After more than 7 years, February 1, 2020 has been officially declared to be the day for the hanging of 4 out of the 6 criminals involved and yet there exist chances of even more delay before the convicts meet their fate in the gallows. A lot has happened in this large span of 7 years and lengthy as it is, this delay has invited an expected criticism from the society that has long awaited this decision.
To cut a long story short, within 72 hours of the crime bring reported, all 6 men had been arrested and were kept in police custody. One, Ram Singh, was found dead within a few days in the custody itself. Another happened to evade with a 3 year term including 8 months in remand under the Juvenile Justice Act. The remaining 4 were tried at a fast track court which, after 7 months, sentenced all 4 to a death penalty. An appeal to this verdict was heard at the Delhi High Court, which took 4 months to uphold the trial court’s decision. A further appeal was heard at the Supreme Court which took 3 years to find the criminals guilty and uphold the High Court’s verdict. A review petition was filed which took another year to get disposed. A curative petition was filed and eventually rejected, all of which took another 3 months. A death sentence by the apex court was finally spelled on 7th January 2020 to which a mercy plea was filed to the President. The President dissented on the mercy petition and a second death sentence on 17th January 2020.
One cannot possibly imagine the plight of the victim’s family and the unending mental harassment of re-living the ghastly memories every time this case attracted media attention.
The last few months have invited immense criticism as to the delay in the service of justice by the Indian Judiciary. The final pronouncement has been majorly met with two kinds of narratives, one of expressed satisfaction and another inciting the much justified question of Whether an inexplicable delay in the service of justice even qualifies as justice being served.
A crime of the nature of Rape, for obvious reasons, shakes the very conscience of society. Any normal person cannot help but look down upon the crime and pray for the worst to happen to the criminal. It is natural that our emotional insights overpower our ability to think practically. We tend to imagine ourselves to be in place of the victim’s family and all that we can think of is Death for the convicts. In fact, we happen to want it so profoundly that the delay, in spite of the inevitability, comes across to us as irritating, unnecessary, and sometimes even intentional. It is this helplessness that leads us into questioning the sanctity of the Judiciary proceedings. A little more optimistic and broad minded approach might lead us into realizing that Justice has in fact been served right.
The pertinent question actually is what exactly leads to this delay.
As is clear from the timeline, a series of appeals were filed by the convicts. Practically every decision made by every Court came to be challenged at the next level of the judicial hierarchy. Starting from the first trial court to the curative petition hearing, the convicts were allowed not less than 5 reviews, this count excludes the mercy petition to the President. This aspect of the Constitutional right to judicial remedy magnifies to a hateful extent when a death sentence is involved. As unnecessary as these provisions may come across to be, there is a reason for their existence.
A lot of the provisions of the Indian Penal Code come from a sense of experience that our law makers faced during the independence struggle. A standard example is that of the Sedition law. It is these very laws that the British had used to curb the nationalist spirit in the country. Naturally, they wanted to avoid any trace of such insensitive laws in the independent India. While completely doing away with it couldn’t have been a solution, they adopted the many possible layers of screening and legitimizing every aspect of the case before a convict could be hanged.
In a defining democracy like ours, capital punishment, like that of death, is sought to be the last resort, as has been said, “In the rarest of the rare cases”. Above this, the many principles of jurisprudence also are inherently tilted to favor the alleged criminals. One of the founding legal principles is to the effect that it is fine if one criminal walks free but no innocent person should face punishment. It is therefore only fair that multiple legal options be given to all convicts, especially those pronounced to a death sentence.
Yet another procedural aspect that played a major role in causing delay of the final verdict is what is legally known to be Joint Criminal Enterprise. An extended rule of this concept appears in the prison rules in India which suggest that when more than one persons are on trial for a crime, they shall be sentenced or acquitted altogether. It is this requirement that was efficiently taken advantage of by some well informed and witty Advocates representing the offenders. Every appeal/review that was filed by the convicts was filed in stages and not together but separately, each one leading to stalling of the legal process. The situation has reached to an extent that it was outright clear that the fallacy of red-tapism and procedure was being misused only to cause delay.
Another incorrigible margin of delay was, and to be fair is always caused because of the administration associated with the term, allotment, availability and transfer of Judges within the Judiciary. Besides, when a case reaches the apex court, considering the backlog of pending cases and the increasing load on it in the last couple of months with the passage of multiple controversial legislations by the Government, delay is certain. While it is not a justified cause of the problem, it is a cross that our country’s Judiciary has to bear.
To add to these issues, International Human Rights agencies like Amnesty International and the United Nations, keep checks on approaches taken by various countries towards capital punishments. India, much unlike the popular opinion prevailing among its own citizens, has abstained from a popular approach being taken by various countries of completely abolishing death sentence as a punishment. Indian stalwarts of law and policy have continuously stressed on the redundancy of death sentence and the need for it to be stopped. Nevertheless, no such step has been taken yet. Amidst such international and internal pressure, a study conducted by NLU, Delhi suggests that by the end of 2017 not less than 370 convicts had been awarded death sentence among which 4 have been executed. Parliament bombing attack convict Afzal Guru being among them and it is essential to point out the criticism faced by the Government due to his hanging.
Finally, the involvement of politics, the power dynamics between rival parties, the game of shifting blame and the practice of pimping out votes using sensitive cases like this adds to the factors causing delay. The time between 2012 to 2017 witnessed two General Elections and one Delhi Government Election and it is needless to point out all the political figures who became a part of the entire Nirbhaya episode in pursuit of their campaigning strategies. Besides, as is known, in India a death sentence is finally assented to by the President. Statistics show how the political inclinations and prejudices of the one holding the Presidential position affect their assent to death sentences.
Having identified some of these factors causing delay in the execution of a death sentence in India, it is now essential to point out how exactly has Justice been served.
On acknowledging all the controversies involved with a death sentence, it is relatively easy to appreciate the final pronouncement made by the apex court by upholding the death sentence after having followed and complied with all the procedural requirements. It needs to be brought up at this point that the offenders had been represented by certain very renowned and accomplished Advocates of their field. Starting from the fast-track court to the apex court, each and every possible shortcoming of the facts of the case and those of the law had been explored in attempt to delay the procedure, if not getting to reduce the sentence. The fast-track court in fact saw the Defense Lawyers stoop to an extent that they blamed the victim and her male friend present along with her at the time of the incident for what had happened. The two victims were blamed of choosing to travel in public transport so late at night and the male victim was blamed for failing to protect his female company from the offenders. Latest reports on the case say that the Defense had prayed for mercy and reduction of death sentence to life imprisonment on the grounds that the convicts had allegedly been sexually assaulted in the prison custody. The apex Court found the said ground for mercy and reduction of sentence unworthy. Keeping all this in mind, if anything, the Nirbhaya case is testament to the faith that the Judiciary deserves.
Another relatively small yet a considerable step taken in the light of the case when it was reported is that under the immense public pressure, the Government set up 5 fast-track courts in Delhi all of which were dedicated solely to hearing Rape cases and the one purpose of quick disposal of such cases.
A major reform that was effected as a primary reaction to the Nirbhaya Case is the 2013 Ordinance and Criminal Law Amendment Act. Before the said Act was passed, the Indian Penal Code provided for a minimum 7 year imprisonment sentence along with fine for a convicted rapist. The said 2013 legislation, which also came to be known as the Nirbhaya Act, provides for a punishment of a death sentence for the crime of rape when it leads to murder of the victim or when it renders the victim in a permanently vegetative state. The same punishment was provided for serial rapists i.e. rapists convicted for rape for more than one time. Earlier, a death sentence for rape was provided for only under the POCSO (Protection of Children from Sexual Offences) Act. The same Act also brought certain other revolutionary reforms in light of protection of women by aggravating punishments for crimes like stalking, voyeurism, molestation among the others. Besides being a promising legislation itself, this Act paved way for what is the most organized approach of dealing with the discussed aspect of procedural requirements causing delay, amendment of the relevant laws. Another progressive step taken by the Government on the same lines is the recommendation made to the apex court to introduce a time limit to the filing of review, curative and mercy petitions by the convicts. This was done in light of the obvious attempts being made the Defense in this case to misuse procedure and manipulate the decision.
Finally, the biggest and most noticeable change that the Nirbhaya Case brought is that of the stark change in the narrative and public sentiment associated with rape. December 2012 saw the entire country stand as one single entity in support of Nirbhaya. The barbarity of the crime once again brought to light what women in our country were facing and the immediate need of getting something done to put an end to their miseries. Women started voicing their opinions; they were again ready to fight for and demand what they have always deserved and were kept deprived of. The Government and the Judiciary got a taste of what the Indian citizens are capable of if they stand as one. All of this can be verified from the statement made by the two fighters in this entire episode, Asha Devi and Badrinath Singh, parents of Nirbhaya, who thanked the people, the media and the Judiciary for having, in their own words, “served Justice to our daughter”. Their exemplary strength is evident from the fact that they insisted on their daughter to be addressed by her original name in news and on social media. They have also started an organization by the name “Nirbhaya Jyoti Trust” dedicated to helping rape victims in their social and financial needs.
A popular and cynical narrative tends to point out how rapes are still an everyday affair in India, and unfortunately it is true. Our country certainly holds a disappointing international reputation in terms of women and children safety. However, an optimistic point of view is that any substantial change takes time and a progressive start always helps. Nirbhaya Case is a revolution in terms of how our society and law is going to view the crime of rape and the rapists. It is very unfortunate that this change had to come at the cost of the life and dignity of Jyoti Singh and her parents, however, it is this change in perspective that stands a better chance to serve justice to the victim than anything else.
There is no alternate viewpoint to the fact that Rape is an inhuman crime and at the outset, it is true that the only way the criminals can be meted with justice is by their hanging. Such men do not deserve to live, let alone deserving sympathy and mercy. However, it is our Law that binds us and the Constitution that governs us and anything contrary to either is only setting a very bad precedent for future misuse by demeaning them. An organized approach like amending the relevant laws is the only way to solve this issue which is what honorable Home Minister Mr. Amit Shah has identified and intends to do.
A very famous slogan goes by the words ‘Justice delayed is Justice denied’ and is absolutely true, especially when sensitive matters are involved. However, due to a variety of reasons, the modern day service of justice is unfortunately not as straightforward and paced as it should be. In conclusion comes up one question,
In face of compromising laws, is Justice delayed actually Justice denied?. https://www.outlookindia.com/website/story/india-news-nirbhaya-case-supreme-court-verdict-on-convicts-review-plea-at-1-pm/344323 – visited at 3:20 p.m. on January 28, 2020  https://www.deccanherald.com/national/explained-what-is-curative-petition-793140.html – visited at 12:30 p.m. on January 29, 2020  https://www.casemine.com/judgement/in/5609abe8e4b014971140d994 – visited at 4:00 p.m. on January 28, 2020  https://www.cambridge.org/core/books/modes-of-liability-in-international-criminal-law/joint-criminal-enterprise/73F920CC5420FEC0D9F427B1025912D8 – visited at 3:40 p.m. on January 28, 2020  https://qz.com/india/374310/india-is-slowly-killing-its-death-row-prisoners-without-actually-hanging-them/ – visited at 3:45 p.m. on January 28, 2020  https://www.business-standard.com/article/current-affairs/371-indians-are-on-death-row-only-4-have-been-executed-in-13-years-118052800123_1.html – visited at 4:20 p.m. on January 28, 2020  https://www.indiatoday.in/elections/lok-sabha-2019/story/nirbhaya-politics-lok-sabha-elections-2019-women-security-police-1510369-2019-04-25 – visited at 1:30 p.m. on January 29, 2020  http://vikaspedia.in/education/policies-and-schemes/protection-of-children-from-sexual-offences-act -visited at 1:50 p.m. on January 29,2020  https://www.indiatvnews.com/news/india/nirbhaya-case-convicts-last-wish-delhi-gangrape-accused-hanging-tihar-jail-582214 – visited at 2:00 p.m. on January 29, 2020 http://www.nirbhayajyotitrust.org/ – visited at 2:05 p.m. on January 29, 2020
This Article has been authored by Rishab Vora. He is a student of law from Goverment Law College, Mumbai.