Phew, as Delhi resounds to the drumbeats of electoral victory and the silence of defeat, one question continues to hang: What is justice and fair-play? Impartial punishment? What do we mean when we talk of justice and punishment? Is our criminal justice system done to death? Is there politics over punishment?
Take the open and shut 16 December 2012 Nirbhaya gang-rape case which ‘shocked the conscience of the nation’. Today, it has been over seven long years and the wait for justice read hanging continues. To put it charitably, it has become a joke as the BJP and AAP accuse each other of playing politics.
Four rapists were initially supposed to be hanged on 22 January, rescheduled for 1 February as one or the other had not exhausted all legal options to ensure they are not sent to the gallows or in the worst, defer their execution. Bringing things to such that none is wiser when the convicts will be executed as the High Court has deferred the hanging till further orders.
And thereby hangs a tale. Of a legal system which is slow, laggard and cumbersome is open knowledge, but that a iron tight case can drag on for years is scandalous and brings into sharp focus our criminal justice system or lack of it.
Think. The four convicts were awarded death penalty by a trial court in September 2013 which was upheld a year later by the Delhi High Court. The case moved to Supreme Court, which accepted it as a “rarest of rare” crime and sentenced all four to death in May 2017. But the convicts, for reasons best known to them, failed to file curative or mercy pleas within two weeks.
Thereafter, review petitions were filed in the Supreme Court by three accused which were dismissed in July 2018. The fourth filed his review plea in December 2019, which too was dismissed. On 7 January the Delhi Sessions Court slated hanging for 22 January. Two convicts filed curative petitions seeking to commute the death sentence to life imprisonment which also were dismissed by the Supreme Court on 13 January.
The third then filed a mercy plea on 16 January which was rejected by President Kovind. He then filed a petition in court, demanding a stay of hanging, following which the court postponed execution to 1 February.
Dissatisfied he challenged the rejection of his mercy plea on 28 January, saying the President “did not apply his mind”. A three-judge bench of the Supreme Court dismissed his plea on 29 January. Then his co-rapist knocked on Presidential doors for mercy and another filed a curative plea before the Supreme Court.
With the hanging deferred indefinitely the Centre requested the Court for individual hanging which was rejected even as it gave the convicts seven days to exhaust all their legal remedies.
Undeniable, we can blame it on our laws. According to the Delhi Jail Manual, Rule 14(2), multiple convicts in the same crime cannot be hanged before each one of them has exhausted all legal options, including filing a mercy petition before the President.
The primary reason the convicts are not exercising their legal options together is because it buys them time to delay or stay their execution. They get a 14 day respite after all recourses fail before being hanged to make “peace with God” and accept fate.
Not only Nirbhaya, but delays seem inbuilt in our legal system. Remember Dhananjoy Chatterjee was hanged in 2004 after a lapse of six years, Pakistani terrorist Kasab’s execution came after eight years, Parliament attacker Afzal Guru after 12 years and Yakub Memom after 21 years.
One could argue that the fault-line between the pronouncement of death sentence and its actual execution testifies to the increasing discomfort within the system. Every year, courts award dozens of death sentences. Yet only few hang.
According to a study by Delhi’s National Law University between 2000-2014 courts sentenced 1,810 people to death but over half of these were commuted to life imprisonment by courts and a quarter convicts were acquitted. Of the quarter cases left only the high-profile ones seem to actually meet the hangman.
Supporters of death penalty assert what if it is a family member? Death penalty gives closure to the family, executing someone permanently stops the worst criminals and translates into a safer environment. It acts as a deterrent for others from committing crimes that could get them killed. See, if one is imprisoned for life he could escape or be released for good behavior and again murder.
Those against death penalty say it goes against the basic right to life and has failed to be a deterrent. There are no statistics to prove hanging convicts stops others from committing similar crimes. Daily, thousands are raped but why are only Nirbhaya killers being hanged? The law sometimes makes mistakes, what if someone is killed who is actually innocent? Recall, in 2009 the Supreme Court admitted it had wrongly sentenced 15 people to death over 15 years.
Not a few aver decisions on death penalty are based more on politics than on law. Whereby, hanging is used as a political tool for a Government to showcase its strength and decisiveness. See how Afzal Guru and Kasab languished in jail for many years under the UPA Government but were post-haste put to death by Modi’s Sarkar showing it was dabang!
Besides, why is there no clamour for death of the Kathua rapists who not only gang-raped a minor girl but murdered her? Whatever happened to the Supreme Court’s dictum that death penalty should be given in the “rarest of the rare” cases. Wasn’t that a rarest of rare case?
Moreover, there have been occasions where the Supreme Court has admitted its inability to evolve a uniform standard for determining the “rarest of rare cases” in which death penalty can be imposed. Explicitly, the incongruity of weighing aggravating and mitigating circumstances to determine whether a convict fell in the rarest of rare cases.
Pertinently, while 102 countries have abolished death penalty India and 62 other nations including US, China, Japan have it. Said a social scientist, “Hanging is part of popular collective consciousness in India which demands an-eye-for-an-eye-tooth-for-tooth. If there’s crime, there has to be punishment. See how the Telangana rapists killings were celebrated. Life has to goes on.”
Look at the dichotomy, rape and murder cases are rising alongside the number of death sentences awarded by courts. Yet, despite knowing they could be awarded death penalty rapists seem to be killing their victims more frequently. Perhaps, paradoxically, the fear of death penalty goads rapists to murder in the hope they will go scot free as there is no witness to file a complaint or give testimony in court.
Kudos to Andhra Chief Minister Jagan Reddy who passed the AP Criminal Law (Amendment) Act 2019 to award death sentences to convicts in rape cases within 21 days. Alas, most other States have yet to set-up fast-track courts for sexual offences. On the fallacious plea they don’t have money.
However, if the purpose of criminal laws is not merely to punish the wrongdoer but also ensure punishment serves as a deterrent for future crimes, then our judicial system is a huge failure. It punishes at snail’s pace, neither satisfying the victim’s quest for justice nor serves as a restraint for potential violators.
Certainly, the Nirbhaya rapists will eventually face the noose and will satisfy our bloodlust, but it will not make justice any faster. Time now for our Government to issue clear guidelines, implement laws to fast track cases which award death penalty instead of ‘hanging’ on for years in courts. Time to overturn the adage ‘justice delayed is justice denied.’