Students observe 'Black Day' at Jantar Mantar as they call for justice for the Delhi gang rape victim in New Delhi.(Sonu Mehta/HT File Photo)
Students observe 'Black Day' at Jantar Mantar as they call for justice for the Delhi gang rape victim in New Delhi.(Sonu Mehta/HT File Photo)

Death for Dec 16 rapists is the State clearing its conscience | Opinion

Retribution is private revenge in which courts and the State have no role to play.
By Indira Jaising
UPDATED ON MAY 07, 2017 09:27 AM IST

On hearing of the death penalty for the four convicts in the December 16, 2012, gang rape case, my spontaneous unsolicited advice to the Supreme Court would be: “The goal of all law is to sustain life not support its destruction” and “it is not too late, reviews and curative petitions will be filed”.

Death penalty is murder, even if it is imposed by judges. Murder is morally abhorrent, regardless of the means by which it is carried out, regardless of the brutality accompanying it. Rapes are also morally abhorrent, regardless of whether it is accompanied with mutilation of the organs and death or not.

Every rape is brutal, every murder is brutal. So what is rarest of the rare?

And to whom is justice owed? To the victim who is dead? No.

So it is to the family? If so, what about those victims who don’t have families?

Clapping in court at the pronouncement of the judgment gives the impression we have reached the lowest level of brutality. The logic of this rejoicing will lead us to demand public participation in and witnessing of the execution as has been done in the US. We will regress to the 16th Century where public viewing of execution at the gallows was considered entertainment.

Apart form being morally abhorrent, the death penalty is arbitrary in its imposition and it is unconstitutional.

Bilkis Bano, a 19-year-old Muslim woman, was gang raped by a mob of 20 persons during the Gujarat riots in March, 2002, and 14 members of her family were killed.

On May 4, the Bombay high court, in a landmark decision, upheld the trial court decision to convict 12 accused for rape and murder, and other offences, and sentencing them to life imprisonment.

On December 16, 2012, the 23-year-old paramedic was gang raped by five in Delhi. On May 5, the Supreme Court upheld the conviction of the eligible four accused and confirmed their death sentence.

If one has to rate these crimes on a scale of abhorrence, brutality and “rarest of the rare”, which one should one choose? This shows the absolute absurdity of the so called “rarest of the rare “ test for the death penalty?

Bilkis Bano herself has welcomed the high court verdict with this statement: ‘“My rights, as a human being, as a citizen, woman, and mother were violated in the most brutal manner, but I have trusted in the democratic institutions of our country. Now, my family and I feel we can begin to lead our lives again, free of fear.”

She further added: “For this verdict does not mean the end of hatred but it does mean that somewhere, somehow justice can prevail. This has been a long, seemingly never ending struggle for me, but when you are on the side of truth, you will be heard, and justice will be yours in the end.”

This is a definition of justice with which I identify.

One of the main arguments in favour of retention of death penalty is that it deters future crimes but there is no conclusive proof backing this argument.

Retribution as a goal of sentencing policy, is not a constitutional goal.

The Supreme Court in Shatrughan Chauhan and Anr. v. Union of India (UOI) and Ors.[1] Observed: “Retribution has no constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same.”

Retribution is private revenge in which the courts and the State have no role to play.

Apart from the violence of the death penalty, the battle in court December 16 gang rape case was an unequal one, the resources of the State on one side and privately hired lawyers of no great standing on the other.

The Supreme Court did appoint an amicus, but amicus in no substitute for a trial court lawyer at the trial stage.

I recall that when Afzal Guru sacked his lawyer at the trial court, the court appointed the very same person as amicus; so much for the respect we show to the fundamental right to life.

The widespread feminist mobilisation around criminal law reforms after the December 16 rape was not just for her alone, it was for each and every one of us who feel threatened walking the streets of Delhi

Our fears have not and will not disappear with the death penalty for her rapists. Indeed the death penalty will draw the curtain down on the debate for safety on the streets on Delhi: We have done our job, we will be told by the State. It is not justice to us that has been done but justice to the State which can now cleanse its conscience and need do nothing more.

(The author is a Supreme Court lawyer.)

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