2012 Delhi gangrape verdict: Death penalty for the convicts doesn't punish a society steeped in patriarchy

The Supreme Court, on Saturday, upheld the conviction of four persons who were charged with raping and murdering a 23-year-old physiotherapy intern in New Delhi, thereby bringing an end to the legal battle that followed the 2012 Delhi gangrape case.

To many including the victim's family, the sentence brings a sense of justice and closure, though it remains to be seen how much longer it will take to be executed. The sentence was in line with the wishes of the victim's family and the decision was applauded in the court room with some lawyers even calling for them to be castrated prior to them being executed.

They now have the option of filing a review petition and if they fail a curative petition and if they fail again they can file a mercy petition. If that is rejected, they can have the rejection of their mercy petition reviewed and after exhausting other last minute procedural remedies, if everything from herein onwards goes against them, they will be led to the gallows where a public servant will put a black bag over their heads and hang them by their necks till a government doctor pronounces them dead. Once he does that, the collective conscience of the society gets avenged, a strong deterrent message is sent and justice is done. Or at least that's the simplified version of the rationale behind which India constitutionally retains the death penalty, but manages to cage it within very tight legal bounds. Making it a very rare instance where a death sentence is awarded and an even rarer instance where it is actually carried out.

Supreme Court. Reuters

The Supreme Court of India. Reuters

The Constitution of India allows for the death sentence, but the application of the sentence is subject to the doctrine of the "rarest of rare cases", where it is only applied highly selectively. The rarest of the rare doctrine was evolved by the Supreme Court to apply the death penalty in a manner consistent with the fundamental rights when it was challenged in the Bachan Singh Case in the year 1980.

Over the years, the court has come to clarify what it means by the rarest of rare cases and has evolved a criteria by which it determines which offences fall within the rarest of rare category. To do this in murder cases, the sentencing court is supposed to take into account factors such as the profile of the victim, the manner of the commission of the crime, the magnitude, the motive and other aggravating factors and then if it finds that the question of the death sentence is foreclosed, it awards it. India has no formal policy on how or when a death sentence is to be awarded so Indian courts abide by this doctrine.


But this rarest of rare doctrine, while in theory designed to be even in application, can result in some uneven consequences. A 2016 report by the National Law University Delhi, Death Penalty Project found that 75 percent of the prisoners on India's death row came from "economically vulnerable" backgrounds. The Report though stressed that there was no causal relationship or direct bias against the poor there could be indirect discrimination that could happen to them.

In terms of resources, in this case, the convicts had access to two designated senior advocates, appointed as amicus curaie ("friend of the court") to assist the court with the matter. Even in the trial stage, the court had to appoint an amicus curaie for a while to assist it when one of the accused's lawyers missed a few hearings. It actually even became an issue on appeal in the HC that this amicus was appointed. But it wasn't like that in the early stages after the incident in 2012, the Saket Bar Association passed a resolution prohibiting any of it's members from acting for the accused.

That trial court brief wasn't one that most lawyers wanted to take at that point of time. In fact, even though the right to counsel or effective legal assistance is something that is recognised as part of the fundamental right to a fair trial, there weren't that many legal aid or NGOs that were willing to come out in public and step up and assist them at the trial stage. While the human rights movement has managed to find a way of defending terrorists, mass murderers and genocidal maniacs look dignified with the modern business class flying, Armani-wearing human rights lawyer, it is yet to find a similar alternative for a local bus driver or labour accused of gangrape and murder with a death sentence on the table. Which means these accused had to rely on pro-bono assistance or government legal aid. In the end, they did get two good lawyers who acted for them, right from the trial court all the way to the Supreme Court. Towards the end of the judgement, the Supreme Court thanks them for their assistance.

But this case and in particular one of the key issues on appeal before the Supreme Court, can shed some light on why different socio-economic factors could change and outcome.

One of the main issues on appeal before the Supreme Court was whether the trial court had complied with Section 235(2) of the Code of Criminal Procedure 1973 before passing the sentence. Section 235(2) provides that after conviction, the court is duty-bound to hear the accused on the question of sentence and then pass sentence upon him. The issue raised was that this requirement had not been complied with by the trial court as only the accused's lawyers were heard and they were not heard individually (as in each accused separately) on the question of sentencing, so the judgement of the high court was challenged for failing to remand the matter back to the trial court for sentencing. But the Supreme Court didn't decide that issue, instead in an order dated 3 February, 2017, the court allowed the accused to present evidence in support of mitigating their death sentence.

But the thing here is this, the first time they got an individual hearing on the question of sentence was at the Supreme Court and even then they didn't get to be personally heard, they only got to file affidavits that were drawn up after two courts below had convicted them of a death sentence. The death penalty is not the rule, it is the exception. So if the compliance with Section 235(2) on the question of sentence was at the final appellate stage, they were in a position where they had to argue against the death sentence rather then just make a case for a lenient sentence, as would have any other convict in a case where there is compliance. This may sound hyper-technical, but it matters. A trial court hearing for complying with Section 235(2), would allow for a lot more material to be placed on record and would also allow for the person who witnessed the trial to also be the one to pass the sentence. One doubts if persons of means accused of offences would end up in situations where they don't get full hearings on the question of sentence after a conviction. Given most rich criminals have their lawyers on call from the minute the crime is committed let alone having to wait till the chargesheets are filed.


The second issue, though is the mitigating factors, that were presented to the court and how the court considered the same. These mitigating factors were that they hailed from poor backgrounds, all of them had dependants and they gave evidence of their capacity to reform. The state countered this argument by saying that the crime had nothing to do with poverty and that the report of the superintendent of the jail showed that their behaviour was not good. He further said that the mitigating factors should be considered in relation to the crime and not just the age and family background of the accused. The court reasons that the aggravating factors concerning the crime, such as how the crime was committed, the attacks on the victim, the attempt to destroy evidence, were so heinous that they outweighed the mitigating factors, therefore, making it the rarest of rare. The court called it a crime that could create a "tsunami" of shock in the minds of the collective. However, the problem with picking an aggravating circumstance over a mitigating one like the accused being a breadwinner or having dependants, is that there have been many cases where the sentence has been life instead of death on very similar facts.

But while analysing the mitigating circumstances, it is very easy for us educated elites to quickly say that the fact that a person is a poor person and sole-breadwinner of a family is not enough to mitigate a sentence of death. Given there is a high chance that no person who actually had to ever live a hand-to-mouth existence or rely on a sole breadwinner would probably ever make it as a lawyer in one of India's high court's or let alone become a judge. The judicial system is one system in India where there is an element of socio-economic status that is in-built because of the educational requirements that have to be met to hold office. This means only people who have access to a post-graduate education, finance so they can build a practice will most probably be able to make it as a judge. To them it may be a question of weighing how horrible an act is versus the mitigating factor that a person is poor. But in the eyes of the law, the people who rely on that tiny amounts that are as prisoners wages do not exist and when these men are hanged those wages will stop and what will happen to those families is a question the rarest of the rare doctrine does not address.

Which is where the principle argument against the death sentence comes into play, that there is an element of human fallibility that is involved in the process of awarding this sentence and because of the irreversible nature of it, it would make sense not to award it. The second argument flows, from India's unique justification for keeping the death penalty on the books, i.e the fact that the death penalty is awarded for crimes that shock the collective conscience. One that should be equally shocked by poverty as it is by rape but one that is often selective in what it is shocked by.

The reason the state prosecutes a person for a major or infamous crime is because a crime is treated not just as an act against an individual but an act against society as a whole. However, when it comes to the question of sentencing someone to death, the sentence is one of individual revenge instead of a solution like reformation (life imprisonment) that will help the society as a whole. There are two guilty parties at play in the 2012 incident, those men involved and a society as a whole that was responsible for such an incident. The sentence of death only goes to serve as revenge against the people involved in the act of committing a crime but doesn't provide any solution for the other people who are equally culpable in allowing for such crimes to happen — The Indian Society.

For example, while it may not have been justification to go an commit such a crime, it was a collective societal failure that the juvenile who was driving the bus did not have proper facilities for his care. Such as a good and efficient school to go to, a good after school programme and a healthy environment where he wouldn't fall in with the wrong crowd. Society had a responsibility to ensure that would happen, but because of a societal failure, you had a juvenile driving a bus in the middle of the night. It's a societal failure that there were not any government buses plying that evening or there wasn't better policing to ensure that crime was prevented. Though the law treats men and women as equal, women have trouble exercising their freedoms for fear of safety. The fact that society has been unable to create conditions for their free exercise is a societal failure and makes us equally culpable for such crimes. Lastly, the way we view women in India went a long way to making those people commit that crime. Hanging those men is no where going to punish us for being a society that is steeped in patriarchy and one that does not treat women as people let alone equals.

Those four men are not an aberration but are the rule in every society that does not treat women as equals. Any one of those men could lawfully force himself upon his wife and should his wife run away from that situation, the law actually has means to deliver that woman back to him so he can continue to force himself upon her. So what will be achieved by hanging those men? Well for starters, we will get a semblance that something rotten has left our midst. But has the rot really left when we are the rot ourselves? Those four men will hang because it serves a very narrow purpose, of making the middle class feel slightly safer against the poorer classes. The sentence does nothing towards the cause of women, making the country safer or even delivering a semblance of justice to anyone in society or the victim. It's a show that the law puts on so that the state can shy away from confronting the real issues, such as the economic and and other externalities that give rise to crime and India's deep-rooted problem with patriarchy

Therefore, this author respectfully disagrees with the court on the question of sentence. Death is not an appropriate sentence when it is a crime against women as society is equally culpable for such a crime and here we as a society are not being punished as well. Furthermore, the aim of every good judicial system is not just to have a fair trial but to have one that looks fair in the eyes of the public. After seeing the fact that for a trial of this magnitude the accused were not able to secure good representation early on and even after securing that representation the Bar Council tired to take sou-motto action against their lawyers for a documentary and topped by the fact that they were only able to argue effectively on sentence at the final stage. The trial while it may be fair on all legal and procedural counts doesn't look fair when observed from the outside. A rich man who committed a crime against women would have got a better trial and would have had better lawyers. Examples of Manu Sharma (Jessica Lal) and Sushil Sharma (Tandoor murder) come to mind.

So while there may be a grand celebration that these men will now hang, let us not make the mistake of thinking this celebration has anything to do with justice. When the hangman puts the black mask on their faces and pulls that lever, not one woman will be made safer, not one crime avenged and the law of the rarest of rare will not become more fair or equal in it's application.


Published Date: May 06, 2017 04:55 pm | Updated Date: May 06, 2017 05:05 pm



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