A miscarriage of justice

The Supreme Court erred badly in dismissing the review petitions of the convicts in the 2012 Nirbhaya rape and murder case against the death sentence awarded to them. A bench of Chief Justice Dipak Misra and Justices R Bhanumathi and Ashok Bhushan said last week that there is no new ground to review the old verdict. The court missed an opportunity to dispense genuine justice to the convicts and to show the society the need to rise above a law based on a crude and primitive idea of crime and punishment. The case relates to the gang rape and murder of a paramedical student in a Delhi bus on December 15, 2012 by six persons including the driver of the bus. Among the accused, one person, Ram Singh, committed suicide in jail (he was 32 when the crime took place) and another, a juvenile at the time of the crime, spent three-year term at a juvenile home. The four others — Mukesh (28 at the time of crime), Vinay Sharma (19 then), Pawan Gupta (18) and Akshay Kumar (27) — were sentenced to death. The court has now rejected the review petitions of three of them.

The case led to the rewriting of the country’s laws on rape and sexual violence on the basis of the recommendations made by a commission headed by former chief justice of India Justice JS Verma, which was appointed by the then UPA government of Manmohan Singh. The panel proposed seven years’ jail term for rape and a longer sentence up to life term for gang rape and sexual violence causing death. It rejected death penalty. The amendments were made as an emotional response to the public outcry over the incident and not in a calm environment of reflection.

The judges affirmed the harshest prescription in the penal code and made some questionable observations. Justice Bhushan said the award of death penalty is right and legal because it is there in the penal code. But the existence of death penalty in the book does not mean that it has to be awarded. The issue is not one of legality but of moral and civilisational right and wrong and of utility. The dominant view among jurists and criminologists is that death penalty does not deter crimes, including crimes against women. This is evident from the crime records of countries where death penalty exists. The court unfortunately takes differences of opinion over death penalty as a reason for its retention. This is wrong. It says that a large segment of people believe in the worth and necessity of capital punishment and so it should stay. This is a flawed argument. Courts should not be guided by popular sentiments or majority views. The court also said that the abolition of death penalty by many other countries is no reason for its abolition in India. This is also wrong. More and more countries are dropping death sentence from the statute book or keeping it in abeyance, prompted by a more enlightened and humane idea of justice. It is in fact a strong and valid reason for India also to do away with death penalty.

In the Nirbhaya case, the punishment for rape was seven years’ jail when the crime was committed. It was wrong and illogical to award death penalty to the accused on the basis of the amended law. In judging this case, or any case, the social setting and milieu of crimes and those accused of them should not be ignored.
The accused grew up in the violent world and circumstances of Delhi where crime was and still is common. The minor grew up in acute poverty. So society also is a partner in the crime. The convicts were teenagers or were in their twenties when they committed the crime, and have a whole life to reform and change, if given a chance.

Reform, and not retribution, should be the guiding idea and basis of criminal justice. Death sentence has no place in it. A man who killed 77 people in 2011 in Norway, Anders Breiwik, was awarded a jail term of 22 years, not the death sentence, by the courts there. The state should not kill, as it represents the will of the people, who are kind, generous and forgiving. People who commit crimes should be given the opportunity to reform and not be condemned to death. Justice should be aligned to the great teachings of religions which prescribe forgiveness and mercy even to the worst criminals. The Bible abhors violence with its commandment ‘’ thou shalt not kill’’, and the Ramayana’s origin is in the disapproval of the killing of a bird by a hunter. Injunction against killing is a cardinal tenet of Buddhism and Jainism. Gandhiji was uncompromisingly committed to the creed of non-violence and Ambedkar believed in absolute non-violence prescribed as a principle by the Buddha. Modern psychology and sociology also put the value of reform and transformation above the pain of the most extreme punishment.

The Supreme Court did not look beyond the book of retribution and failed to adopt a saner, more civilised and humane approach to crime in this case. The court, as the purveyor of justice, should have upheld the highest human values and the right to dignity and life, which no-one has the power to extinguish. It has lowered its own dignity by condemning people to death. The award of death sentence has not prevented crimes from taking place in India or anywhere. What deters criminals is not the severity of punishment but swift and effective administration of laws. The system of justice has to internalise and implement this idea rather than work on laws based on revenge and retribution. No law has the salience and power to take away the right to life of a person, and this should be recognised by India’s justice system.