Dec 16 gang rape: Strong emotions cannot cloud application of the law

Protests against the release of the juvenile show how most favour a retributive form of justice.

The gang rape of a woman by six men on December 16, 2012, has become an emotive issue with most people, and there are ample reasons for it. So when one of the convicts, who was a juvenile when accused in the case, was released from a correctional home and sent to an after-care home on Sunday, there were protests by the victim’s family and others. The Delhi Commission for Women appealed against the ‘release’ in the Supreme Court.

Nirbhaya’s parents detained by the Delhi Police after they protested along with student activists against the release of juvenile convict of the 16 December Gang-rape at India Gate.(HT Photo)

The case also resonated in Parliament: TMC’s Derek O’Brien demanded the expeditious passage of the amendments of the Juvenile Justice Act to allow children between 16-18 years to be tried as adults in cases of heinous crime. While what happened on that night is unacceptable and the authorities must take the rap for failing to ensure a safe city for women, the high-pitched demand for retributive rather than reformative justice is also equally inappropriate.

The boy, now 20, has been released in accordance with the existing law and as the apex court correctly said, they have to go by the law as it stands today. Even if the law were to change today, it would not apply in a retrospective manner in this case.

While the gang rape was horrendous, the way the boy was branded as the “most brutal” among the six convicts was also wrong, and only shows the dark side of a herd mentality of the media and the people on such issues. For the record, there is no mention of “most brutal behaviour” in the FIR, the police chargesheet, signed testimonials of the victim and her friend and the records of the Juvenile Justice Board (JJB).

In fact, the JJB has said that the juvenile has been ‘brutalised’ by the way he has been depicted in the minds of the people. It is not only the juvenile who has been hounded; even his family has not been spared.

The media has reached his village in Uttar Pradesh, interviewed even those remotely connected with the case, and has ensured that there is no way the boy will manage to get a second shot at life.

All this has been done knowing well that the law gives such offenders a second chance.

By baying for the boy’s blood, the focus remains steadfastly on the crime and the convict, and the government is being let off the hook. Instead, the focus should be more on exploring how and why such young men are increasingly getting involved in such crimes and what are the ways to stop this.

Unless and until the State and other agencies figure that out and take remedial measures, the criminal justice system will continue to fail those like the Delhi braveheart.