NIRBHAYA VERDICT: JUSTICE DELAYED OR JUST A CLOSURE?
Rape and other sexual offences are highly prevailing in the society. Offences like Rape affects the person Mental and Physical state and makes difficult for a person to live in the society. Indian Courts have a backlog of more than 100000 pending cases. Each day close to 90 rapes are reported in India. It is eight years since fatal gang rape of Nirbhaya on December 16, 2012, in New Delhi, the capital of India. But still the justice for Nirbhaya has still not been derived. Each and every time the execution of death sentence of all the four convicts gets postponed despite of having mountain of evidence against the convicts which led to mockery of Indian Judiciary since the execution of the same has not been done yet inspite of committing such a heinous crime. Moreover, the laws of the criminal law were only changed after 1 year of such heinous crime which expanded the definition rape and incorporated new offences including acid attack, sexual harassment, voyeurism and stalking”. There are no stringent and harsh laws for crime like rape like it is there in other countries such as Saudi Arabia etc. this research paper focus on how the justice for Nirbhaya is delayed and denied and just became the normal closure of the story and how the society, Indian Judicial System and Law are also culprits of Nirbhaya along with those six convicts.
Key Words: Rape, Death Penalty, Rarest of Rare Case, Fair Justice, Rights of Accused, Justice Delayed and Denied.
NIRBHAYA VERDICT: JUSTICE DELAYED OR JUST A CLOSURE?
Historical recognition of delays in the justice system often recognizes the perspective of the accused or the disputer and suggests that for a person seeking justice, the time taken to resolve their issues is critical to the experience of justice. Essentially, these statements are consistent with more recent research that has shown that the time taken to deal with a dispute is a key factor in determining whether or not people consider the judicial system to be just and fair. William E Gladstone, a former British statesman, famously said ‘justice delayed is justice denied.’ The victims, a 23-year-old woman, Jyoti Singh, and her male friend, returned home on the night of 16 December 2012 after watching the movie Life of Pi in Saket, South Delhi. After the show was over, about 8:30 p.m., they took the car and reached the Munirka bus stand, where they boarded the white colored charter bus [DL-1P-C-0149], which was bound to Dwarka / Palam Road, as a boy in the bus called for the commuters to that destination. According to the informant’s version, a friend of the prosecution, the bus had yellow and green lines and the word “Yadav” was written on it. After both of them had entered the bus, they noticed that there were six people in the bus, four in the driver’s cabin, and two in the driver’s cabin. The deceased and the informant sat on the left side of the two-seater wall, paying the price of twenty ropes as ordered. Before they could have had the feeling of a safe journey, a feeling of lonely suffocation and a sense of danger barged in, because the accused did not allow anyone else to board and the bus moved and the lights inside the bus were put off. With the lights coming on, the silence and the terror of the sudden night reigned. There were only six others in the bus, including the driver. One of the men, identified as a juvenile, called for passengers to inform them that the bus was going to their destination. Her friend became suspicious when the bus departed from its normal route and the doors were locked. When he objected, the group of six men on board, including the driver, taunted the couple, asking what they were doing alone at such a late hour. There was a scuffle between her friend and the group of men during the argument. He was beaten, gagged, and struck unconsciously with an iron rod. The men then pulled Jyoti to the back of the bus, beating her with a rod and raping her while the bus driver kept driving.
The medical report later stated that she had suffered serious injuries to her abdomen, intestines, and genitals as a result of the attack, and that the damage suggested that a blunt object (suspected to be an iron rod) could have been used for penetration. That rod was later described by the police as a rusty, L-shaped instrument of the type used as a wheel jack handle. After the beatings and the abuse began, the perpetrators threw both victims out of the bus. Wide-spread demonstrations rage on 17 December, 2012, calling for stern action against the accused. Police have identified the accused-bus driver Ram Singh, his brother Mukesh, Vinay Sharma and Pawan Gupta. The victim’s friend testified on 20 December, 2012, and the juvenile delinquent nabbed at the Anand Vihar bus terminal in Delhi on 21 December, 2012. Victim’s friend identified Mukesh as one of the guilty parties. Police raided Haryana and Bihar to nab the sixth accused, Akshay Thakur. Thakur was arrested in the Bihar district of Aurangabad and was taken to Delhi. Victim was recorded statements at the SDM declaration in the hospital. Protesters defied prohibitive orders, and marched into the streets. Delhi Police Constable Subhash Tomar, in charge of monitoring protests, rushed to the hospital with serious injuries. The health of the girl was very serious, and she also had a cardiac arrest. She had flown to Singapore’s Mount Elizabeth Hospital, and all her expenses had been taken care by the government.
The charge sheet was filed with the Saket Fast Track Court outlining the positions of the five suspects arrested. The sixth person apprehended in the case was tried by the Juvenile Justice Board separately, as he claimed to be a minor. Bone’s test confirmed that he was under 18 years of age, and a separate police report was sent to the board. The bill was presented in digital format by special prosecutor Rajeev Mohan. The police claimed that they had a mountain of evidence against the perpetrator, including the girl’s dying statement and the testimony of her male friend who was with her on a fateful night. DNA samples, hair fibers, blood samples of the accused, the positive outcome of the two accused’s Test Identification Parade (TIP) as well as the CCTV footage of the bus used in the crime form part of the evidence. On 5 January,2013 the court ordered for in camera proceedings. One of the accused, Ram Singh committed suicide inside the Tihar jail. On 10 September, 2013, Court convicted Mukesh, Vinay, Akshay, Pawan of 13 offences and awarded death penalty. The Court held the accused guilty under Section 375but also Section 302, 120B, 365, 366, 376(2)(g), 377, 201, 395, 397, 412 of Indian Penal Code, 1860.
Juvenile Justice Board convicted the juvenile under Murder and Rape and awarded three-year term at probation home on 31 August, 2013. The court held that this case was of “rarest to rare” case. In Bachan Singh v. State of Madras, the court held that the sentence of death ought to be given only in the ‘rarest of rare cases’ and it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. Life imprisonment is the norm and death sentenceis an exception. The court must follow certain principles and must apply the tests which are loadstar and the aggravating and attenuating circumstances which must be taken into account while applying the doctrine of “rarest of rare” crime. In the opinion of the court, the imposition of any other punishment that is life imprisonment would be inadequate and would not serve the purpose of justice. Method and method, such as the degree of cruelty and inhumanity, etc., in which a crime has been committed and the circumstances leading to such a heinous crime.
In the case of Mohd. Mannan v. State of Bihar, the court said that “when the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arose intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. The eight years taken by the judicial system to rule on such a heinous crime led to the conviction of the accused, since the state of the accused had slowly become very frail in Tihar jail, as it was reported that the accused had been tortured and abused. They were held in unlawful detention and imprisoned unlawfully. The physical condition in prison is worse than the terror of the death penalty, which contributed to paranoia, mental illness and schizophrenia. Even the guilty party failed to recognize his own mother and the advice that contributed to the plea of forgiveness. It was alleged that the accused remained held in solitary confinement even while his appeal was still pending before the President of India, and that such unlawful detention was unjust and in violation of Sunil Batra v. Delhi Administration and Others. In fact, it was noted that the perpetrator was mentally ill and also had epilepsy, therefore the death sentence cannot be executed and should be sentenced to life imprisonment in compliance with the UN General Assembly resolutions. United Nations General Assembly in its Sixty-second session, adopted a Resolution on 18.12.2007, which speaks about moratorium on the use of the death penalty. The following decisions are relevant:
“1. Expresses its deep concern about the continued application of the death penalty;
2. Calls upon all States that still maintain the death penalty:
(a) To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May, 1984; The following passage from the Commentary on the Laws of England by William Blackstone is relevant for our consideration:
“…In criminal cases therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced;
and if, after judgment, he becomes of nonane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.”
The directions of the United Nations International Conventions, of which India is a party, clearly show that insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by the Court in deciding whether in the facts and circumstances of the case death sentence could be commuted to life imprisonment. To put it clear, “insanity” is a relevant supervening factor for consideration by the Court. However, the mercy petition got rejected and also the writ petition for exercise of judicial review of the order of the President of India rejecting the petitioner’s mercy petition was liable to be dismissed. Moreover, the court dismissed the stay execution of the death sentence which was scheduled on 3rd march, 2020 made on the following four specific grounds:
· A second mercy petition which was filed on behalf of Akshay on 29 February is pending.
· A curative petition, filed on 28 February, by Pawan is pending consideration before the apex court (soon after the order was reserved, notification that the plea was rejected came out of the SC).
· A SLP regarding separate hanging of convicts was also pending before SC, which to hear the same on 5 March.
· An application before the election commission of India is pending regarding Vinay Sharma’s mercy rejection during model code of conduct being in force.
It was noted that under the Rule 836 of Delhi Prison Rule 2018 unequivocally mandates that when an appeal or application is pending before SC, a death sentence cannot be executed. Further, under 858 rules, the death warrant cannot be executed against remaining convicts. Therefore, the execution which was scheduled on 3rd march, 2020 is now been further delayed due to the intervention of the Additional Session Court on March 2, 2020 postponed the order to execute the death sentence for the third time. The first death warrant against the four convicts was issued on Jan 7, then on Jan 17 and last on Feb 17 that the accused will be hanged on March 3. However, the said execution is again postponed and the Court has now pushed the execution of the death warranting until the disposal of the mercy plea since the Court appreciated the irreversible nature of death penalty and importance of constitutional legal remedy of mercy plea.
Acting upon the date of execution of Nirbhaya convicts (which was set for March 3, 2020), not only the Tihar Jail Administration but also the doctors of Western District Police, Traffic Police, Western District Revenue Department and Deendayal Upadhyay (DDU) Hospital were fully prepared.
However, preparations were stopped as soon as it was learned that the hanging of the culprits had been postponed. The way to hang the four convicts is clear. Now only Pawan has the option of challenging the Supreme Court against the mercy petition rejected by the President, the other three have also lost their option. Patiala House Court has issued a notice to the four convicts of the Nirbhaya case and a new petition was filed by Nirbhaya’s parents in Delhi’s Patiala House Court on Wednesday (4th March, 2020) to issue the death warrant. The plea was filed after the mercy petition of convict Pawan Kumar Gupta was dismissed by President Ram Nath Kovind.
Additional Sessions Judge D Rana may issue notice to the convicts on an application filed on behalf of the prosecution. There is a possibility that a death warrant may be issued today (5th March, 2020) at 2 o’clock.
But the question is why it took 8 years to give the punishment to such criminals? “People losing faith in the judicial system due to the delays. The convicts are testing the patience of the country. It was a crime that shook the country. It was a devilish and inhumane crime,” then why the government has not made any stringent laws for rape or for such heinous crimes. Why the laws are misused and led to the mockery of Indian Judicial System.
The blame should not be only imposed on judicial system but also should be imposed on the laws made. The laws of the criminal law were only changed after 1 year of such heinous crime which expanded the definition rape and incorporated new offences including acid attack, sexual harassment, voyeurism and stalking”. Also, there has been no change in the rape culture and related brutality, even though fast track court has established but still Indian Courts have a backlog of more than 100000 pending cases. Each day close to 90 rapes are reported in India. The conviction rate in rape cases is 32%. Our neighbouring country People’s Republic of China popularly known as China gives a death punishment by firing bullet once the rapist is convicted. Other countries such as Afghanistan, UAE, Iran, North Korea, Egypt and Saudi Arabia also give punishment of death to rapist. There should be no mercy for rapist. You rape and you die and that is fair justice.
But the blame should not be totally imposed on legal system or judicial system but also on the Indian society. In our society, we never allow our girls to come out from the house after 6:30 or 7:30 or 8:30 in the evening with any unknown person.” Also, the learned lawyer himself said that “A female is just like a flower. It gives a good-looking, very softness pleasant performance. But on the other hand, a man is just like a thorn. Strong, tough enough.
“That flower always needs protection. If you put that flower in a gutter, it is spoilt. If you put that flower in a temple, it will be worshipped.”
Also, the belief such as ‘Men will be man’, ‘She was drunk’, ‘Women say “No” when they mean “Yes”’.
Rape culture is pervasive. It’s embedded in the way we think, speak, and move in the world. While the contexts may differ, rape culture is always rooted in patriarchal beliefs, power, and control. And therefore, in order to change this society should create the culture of enthusiastic consent, redefine masculinities with feminist principles, and stop victim blaming.
Moreover, Over the last few decades, there has been controversy over the occasional extension of the pendency of litigation in the courts and councils of the country. The pendency in the courts has been that, given the growing population and, respectively, the synchronous rise in the knowledge of citizens of legitimate rights. It is common practice for the pendency of cases in the states, the councils and, in turn, the High Courts to raise the pendency of cases in the Supreme Court. In such cases, it is proposed that the extraordinary leave petitions alluded to in Article 136 should be limited to relevant laws. In fact, it is argued that the Supreme Court should only rely on issues of legal interest pursuant to Article 136. Further, stringent laws should be made for the cases like sexual harassment, and for rape death penalty should be given to accused as soon as their conviction is proved, no matter whatever the degree. when the above changes are made compulsory rather than a list, it will certainly reduce the delay in the resolution of cases and thus instil in the minds of litigants and people that the judiciary is indeed a temple of justice at the right pace and that achieving justice will not become a pipe dream. Till then there will always be Justice delayed is justice denied.
 Rape.  Punishment for Murder.  Punishment of criminal conspiracy  Kidnapping or abducting with intent secretly and wrongfully to confine person.  Kidnapping, abducting or inducing woman to compel her marriage, etc.  commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.  Unnatural offences.  Causing disappearance of evidence of offence, or giving false information to screen offender.  Punishment for dacoity.  Robbery, or dacoity, with attempt to cause death or grievous hurt.  Dishonestly receiving property stolen in the commission of a dacoity.  AIR 1980 SC 898: (1980) 2 SCC 684.  Machhi Singh v. State of Punjab, AIR 1983 SC 957: 1983(3) SCC 470.  Ramnaresh and ors. v. State of Chattisgarh, AIR 2012 SC 1357; Brajendra Singh v. State of Madhya Pradesh AIR 2012 SC 1552.  (2011) 5 SCC 317.  1980 SCR (2) 557.  Shatrughan Chauhan and Another v. Union of India and Others Union Treaties, (2014) 3 SCC 1.  Nilashish Chaudhary, Nirbhaya Case Delhi Court Refuses To Stay Execution of Death Sentence, 2ndMarch, 2020 https://www.livelaw.in.  March 02, 2020; [Nirbhaya] Despite Stiff resistence Death Row Convicts cannot Meet Creator Without Opportunity To Exhaust All Legal Remedies Delhi High Court, https://www.barandbench.com.  Nitish Raj, Death Penalty For Rapist in this Eight Countries, https://thepolicytimes.com.  Lian Ganz, Rapist Lawyer Says, https://www.legallyindia.com/the-bench-and-the-bar.  You Can Stand Against Rape Culture, https://www.unwomen.org.  Special leave to appeal by the Supreme Court.
Author Details: Harneet Singh and Kresha manoj Shah (Presidency University, Bangalore)