As Hyderabad rape, murder case triggers calls for harsher penalties, how political posturing prevents death penalty for rapist-killers

This report was originally published on 1 August 2019. It is being republished in light of the rape and murder of a Hyderabad veterinarian, which in turn has led to calls by Rajya Sabha MPs for stricter punishments, including the death penalty, for rapists.

Read the concluding part of this exclusive column here.

***

An afternoon sometime in the monsoon months of 2015; Mumbai alternating between being muggy and rain-whipped. An SMS arrives from Delhi, it is Supreme Court advocate Shubhangi Tulli, “One of the rapists is no more. New affidavit needed for SC on PIL.”

The PIL [public interest litigation] was filed by this writer and admitted by the Supreme Court of India [SC] on the morning of 18 November, 2013. More than seven months of concerted preparatory work had preceded the admission of this PIL by the SC. Sifting through documents to detect those cases which involved crimes upon children by adults. Research on the four identified cases – four children in different states [three girls, one boy] murdered by five rapists. Additional research on each of their five convictions to double-check that all cases had been awarded the death penalty by all three tiers of courts [Sessions, High, Supreme] – and yet, all of them were still very much alive, living on tax-payers' money in jails, till 2013; the SC had awarded their death sentences in 1999, 2003, 2005, 2008.

Trying to locate the parents of the raped-murdered children to share the intent of filing a PIL – not necessary legally but needed ethically; for any father, such grief never fades, for mothers such wounds are forever fresh.

Advocate Tulli hunting down all the back case-papers of these children – four innocents reduced to records by five rapists. They also dragged the parents of these children through three courts with hearings, delays, appeals, delays as files filled up with reams of paper longer than the lives of these children had ever been.

 As Hyderabad rape, murder case triggers calls for harsher penalties, how political posturing prevents death penalty for rapist-killers

Representational image. Reuters

Several meetings with SC senior advocate Shekhar Naphade in Mumbai and Delhi to discuss not only the whether-to and how-to but the Constitution of India itself. [An interesting chapter to Indian legal history was added when Mr Naphade positioned the Constitutionally-enabled “next friend” to file the PIL for Aruna Shanbaug and passive euthanasia with which the SC legalised passive euthanasia in 2011. While upholding this verdict in 2018, the SC also permitted advanced directives/living wills.]

And then, with Mr Naphade confirming the Constitutional-clearance, this writer mentally preparing for a hard, road-not-taken-yet ahead. Questioning specific powers of the President of India is a citizen’s right; but trying to get justice for broken children…. the system seems to have decided that that’s a privilege.

The rapist who died after this PIL was admitted was from Jharkhand. He had also chopped off the nine-year-old boy’s head. The boy-child’s beheading earned him the death penalty in all three courts. His earlier file notations alluded to another trial underway in which he had been accused of human-sacrificing his own brother.

And yet, he received a Presidential pardon.

A Governor’s pardon, a President of India clemency – these are guided by the aid and advice of the state government for the Governor, and by the Centre for the President. It is well-nigh impossible to delink the decisions taken.

***

An afternoon, monsoon-soaked in Pune, July 2019. The television is on, several politicians are on all channels. Some are changing a state government, some changing their skins to be on the right side of the fence. Some are changing laws – there goes an important administrative aspect of the RTI Act. RIP, RTI?

It was because of the RTI [Right to Information Act], that this writer’s 2013 PIL could reach the SC. It wouldn’t be much of a reach to also say that it was because of this RTI that the SC could discover how randomly its ruminated judgements are tossed elsewhere. This particular RTI had been filed by the Delhi-based Subhash Agrawal; he asked how many people had been pardoned by President of India Pratibha Devisingh Patil, how many granted clemency from the death penalty. With the afternoon’s change in RTI, will such detailed information ever be possible again?
Change channel. The news anchor says POCSO [Protection of Children from Sexual Offences Act] is “going to be made gender-inclusive”. She appears thrilled, ignorance inducing a joyous state; POCSO is meant to protect both, boys and girl children under 18, since the year of its inception [2012] with the law clearly not differentiating between children. Another channel, the anchor declaring it as “breaking news” — government is planning on giving child-pornography an encompassing definition. Good step, government. Those found guilty will be tried under POCSO which will be suitably amended. Good going, government.

Now get ready for déjà vu, government. POCSO 2012 had found itself in the eye of a surreal storm with assorted “experts” feeling obliged to abandon children between the ages of 16 to 18 to the sexual whims of those perverted adults who prefer them very young. The concerted campaign unleased – stoked allegedly by those with commercial interests in soft porn through mass media and the internet which could target teenage boys — sucked in even members of the very committee set up to protect child rights as it did some uber-progressive parents and, of course, several politicians who basked in the publicity. It took then Opposition leaders Sushma Swaraj and Arun Jaitley to have a meeting with then UPA chairperson Sonia Gandhi to tamp it all down. With an expanded child porn definition and a further strengthened POCSO, a neo-liberal campaign could well re-start to drop the age of minor to 16 years from the current 18. What’s the bet that the politicians will skirt major-minor related issues of voting rights, marriage minimums, drinking and driving age-limits?

Turn to the channels where the anchors do not shout, RS and LS [Rajya Sabha TV, Lok Sabha TV]. Member of Parliament Derek Obrien is speaking on his boyhood experience of feeling sexually violated on a public bus. Commendable, even if he is speaking about it for the second time with almost the same words and in the same Parliament. He is wished well; hopefully he has looked at how best to help other children in buses in his own constituency; hopefully, he will take the lead in setting up child-friendly courts for POCSO in Bengal.

Now speaks Smriti Zubin Irani, Union Minister for Women and Child Development. She is wished very well for hopefully managing what right now seems like a herculean task but is do-able in five years – ensuring that all states set up an adequate number, as well as adequate, POCSO courts. Or at least those states where her own party is in power; by this month’s count, they rule not only at the Centre but over more than 75 percent of India’s population. Add to which some percentages provided to Parliament by Minister Irani, “Thirty-nine percent of India, 47 crore Indians are younger than 18 years old.” And for perspective, some conservative Indian ratios cutting across class and religious lines: one in every three girl-children and one in every four boy-children are likely to be sexually abused; more than 50 percent, or half, these crimes will be perpetrated by those in position of the child and teenager’s trust.

Children drowning in a flood of evil, with so much not even reaching a police station; likely that this includes most upper and upper-middle class child sexual abuse and those of boys. And then, too many of these children sinking with devastating short and long-term effects [for details – and for self-help solutions — please refer to the indexed chapters in 'Bitter Chocolate: Child Sexual Abuse in India'] including sexual-identity confusion, crime and sexual assault upon others.

Ergo, timely intervention and a sense of receiving some justice through adult validation and support can make all that difference not only to the abused child but to society at large, and therefore a country.

What halts child sexual abuse? First and foremost, prevention – for an entire childhood uninterrupted, prevention is the best form of cure [overseen by the child’s parents, close family, school-college, society-at-large]. Second, a strong law. Third, a “live” law, which means a law that is rigorously in use thorough police and prosecution. Third ties in, deftly, with first: the visible presence of police and the threat of immediate and swift prosecution also leads to some amount of prevention as an abuser cannot strike too often and so obviously.

[This would be true of most laws to have a salutary effect: no law on its own frightens non-law-abiders; self-checks do, policing-prosecution does, be it for drunk-driving or bank-fraud. Which should somewhat also address the oft asked-answered, “What use is the death penalty? It doesn’t stop murders.” For those who hold that death penalties should be abolished as it has in certain countries – if it’s only about numbers, then more than half of the world’s population continues to have the death penalty statute.]

Minister Irani announces in Parliament that POCSO is to be amended to include death penalty for aggravated sexual assault. But POCSO has always been free to be read by any judge alongside the IPC [Indian Penal Code] which stipulates the death penalty for heinous crimes against all, be they adults or children of any gender. Furthermore, post-Nirbhaya and the tightening of the anti-rape laws, then home minister Sushil Kumar Shinde – although being anti-death penalty himself – added the death penalty proviso in IPC 376 for gang-rape and for those who leave the victim in a persistent vegetative state [like Aruna Shanbaug].

Not that much has changed – if anything, it appears to have emboldened rapists to prey on women in packs — after Nirbhaya/Jyoti Singh. Recall the politicians in Parliament, playing to the galleries, hamming it for the cameras across party lines immediately after? Meanwhile, rapists rape, rapists get bail, rapists in jail reportedly manage parole and disappear, rapists who murder escape the noose. This week, on 29 July, Bombay High Court commuted the death sentence of two convicts for the 2007 kidnapping, rape and killing of a BPO employee in Pune as the “delay” in their execution was “inordinate” and “unreasonable”. They will now enjoy life-imprisonment [but not unto death and time spent so far is being included] courtesy Indian tax-payers. Not counting the time and cost it took, also courtesy tax-payer, to try and do right by this married woman who, on the last evening of her notice-period at this BPO, was picked up by the driver and his friend in the office cab to be dropped home. Her body was found the next morning, around 35 kilometres outside Pune.

The two convicts had been sentenced to death by all three levels of courts on March 2012, September 2012, May 2015. [Irony? The same High Court upholds a death sentence in 2012 and in 2019 commutes it, this too after the SC has upheld it. Travesty?]. The mercy petition of the two rapist-killers to the Governor had been rejected in April 2016 and by the President in June 2017. The jails at state and centre are looked after by ministries headed by elected representatives. Why the delay by these politicians – especially since everything had been followed correctly — of more than even six months to ensure the carrying out of a death penalty?

Unless, of course, politicians themselves are squeamish about the death penalty. In which case, why pretend to the public?

Perpetrators. Politicians. Same difference?

***

An unusually pleasant September morning in Delhi, 2017. PIL listed in SC. Court 3, item 35. Yes!

Nope.

Doesn’t reach docket 35 before Court closed for the day.

Can only hope no more of the rapists die till case gets heard.

This rapist, Satish, was trusted. He was allowed to drop the little girl on his cycle. She was six when she didn’t come back from school. They found her the next morning, flung in a sugarcane field, strangulation marks on her neck, blood on her private parts. Dying, while being raped.

Her father is the one who finds the missing rapist thereafter. By the time he can alert the police, Satish has vanished. The little girl’s father is relentless in his search, he finds him again in a far-away village but the police don’t have anything beyond cycles themselves to get till the rapist-murderer to start their investigation. The father hires a car, pays a driver, fills the petrol, takes the police to his little girl’s rapist-murderer. He physically follows his daughter’s case, from his town in Uttar Pradesh to its High Court and then for justice, to the Supreme Court in Delhi. Read between the dates to be in this father’s shoes.

Six-year-old school-child raped-murdered: 16 August, 2001.
Trial Court awards death sentence: 29 October, 2002.
Supreme Court awards death sentence on 8 February, 2005.
MHA [Ministry of Home Affairs] receives mercy petition from State Government: 2007.
File submitted to President: 14 July, 2008.
File called for review by MHA received: 1 July, 2011
File resubmitted to President: 15 July, 2011
President commutes death sentence: 8 May, 2012.

How much thought goes into it when a decision-maker is about to either wipe away a little girl’s rape-murder or at least validate her father’s dogged determination?

Well, it’s the perpetrators which seem to get the political sympathy. On 2 June, 2012, the death-sentence of another rapist-murderer was also commuted to life by a Presidential pardon. He had been dead since 18 October, 2007.

***

National Award-winner Pinki Virani is the author of five bestselling books including 'Politics of the Womb: The Perils of IVF, Surrogacy & Modified Babies'.

Read the concluding part of this exclusive column here.

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Updated Date: Dec 04, 2019 19:59:52 IST