A three judge bench of the Supreme Court on May 5 delivered the decision in the Nirbhaya case, confirming the death sentence awarded to the four accused by the fast-track court and subsequently upheld by the Delhi High Court for the gang-rape and murder of a 23 year old para-medical student in Delhi on December 16, 2012. The verdict records two judgments, one by Justice Dipak Misra and Justice Ashok Bhushan and the concurring judgment of Justice R Banumathi, currently the only woman judge amongst the 28 sitting judges of the Apex Court.

“It sounds like a story from a different world where humanity has been treated with irreverence. When we cautiously, consciously and anxiously weigh the aggravating circumstances and the mitigating factors, we are compelled to arrive at the singular conclusion that the aggravating circumstances outweigh the mitigating circumstances now brought on record.”

– Justice Dipak Misra

Background to the Case

The verdict is the outcome of a four year long quest for justice by the parents of Jyoti Singh Pandey who was brutally gang raped inside a bus, suffering severe injuries which resulted in her death 13 days after the incident in a hospital in Singapore. The victim was returning home with a friend post a movie when they boarded the bus on which the fateful incident occurred, before the naked and wounded bodies of the victim and her friend were left on the roads only to be found by a police patrol van in the early hours of morning.

Of the six accused apprehended by the police, Ram Singh, the primary accused committed suicide by hanging himself inside a prison cell in Tihar Jail in March, 2013. Another, a juvenile at the time of the incident, was committed to a Reform Home by the Juvenile Justice Board for three years in August 2013 and was released in November last year. The other four, Mukesh, Pawan, Vinay and Akshay were sentenced to death by Additional Sessions Judge Yogesh Khanna of the Saket Court in Delhi on September 13, 2013 and the sentence was confirmed by a Division Bench of Justice Reva Khetarpal and Justice Pratibha Rani of the Delhi High Court on March 13, 2014. The four accused had then appealed to the Supreme Court and the execution was stayed by the Court in March 2014. The hearing for the case began two years later in July 2016 before the Bench that delivered the decision on May 5.

Earlier this year, in January 2017, the Supreme Court sought for affidavits from all four accused stating mitigating circumstances which allow for the setting aside of the death penalty, which as per judicial precedents only to be awarded in the ‘rarest of rare cases’. This was also done keeping in mind Senior Advocates Raju Ramchandran’s and Sanjay R. Hegde (Amicus Curiaes) arguments for setting aside the order of sentence and unreliability of evidence, respectively. Deciding to re-hear the case on the sentencing aspect, the Bench reserved its decision on March 27 this year and pronounced the same on Friday, May 5, upholding the sentence of death for all of the accused after relying on the dying declaration of the deceased victim.

“The gruesome offences were committed with highest viciousness. Human lust was allowed to take such a demonic form. The accused may not be hardened criminals; but the cruel manner in which the gang-rape was committed in the moving bus; iron rods were inserted in the private parts of the victim; and the coldness with which both the victims were thrown naked in cold wintery night of December, shocks the collective conscience of the society. The present case clearly comes within the category of ‘rarest of rare case’ where the question of any other punishment is ‘unquestionably foreclosed’. If at all there is a case warranting award of death sentence, it is the present case. If the dreadfulness displayed by the accused in committing the gang-rape, unnatural sex, insertion of iron rod in the private parts of the victim does not fall in the ‘rarest of rare category’, then one may wonder what else would fall in that category.”

-Justice R. Banumathi in her concurring judgment

The Debate Around Death penalty

Capital Punishment, although not abolished in law in India, has been restricted in practice in India, adopting retentionist approach. The punishment is to awarded as an exception and not the norm but the same has also come under the scanner as being violative of the Right to Life, a fundamental right guaranteed under Article 21 of the Constitution.

As per the Death Penalty India Report formulated by the Centre for Death Penalty, National Law University Delhi, 59 sections across 18 Central Legislations prescribe the death penalty as a punishment for the offences listed thereunder. The law pertaining to the death penalty in India is governed primarily by judicial precedents, the standard having been set by the Supreme Court in Bachan Singh Vs. State of Punjab, a 4:1 majority decision which while debating the constitutional validity of the death penalty, marked in a shift the Indian Jurisprudence, for it lays down the principle of ‘Rarest of Rare’ cases for the award of a death sentence where the courts were to record reasons for awarding the same while adhering to the standard of ‘Rarest of Rare’ circumstances.

Justice Bhagwati in his dissenting judgment in Bachan Singh, however was of the opinion that death penalty was violative of Articles 14 and 21 of the Constitution and also undesirable otherwise. The court in its majority opinion also lays down certain mitigating circumstances that are to be taken into account by courts while awarding the punishment of death, these being:

  1. That the offence was committed under the influence of extreme mental or emotional disturbance.
  2. The age of the accused. If the accused is young or old, he shall not be sentenced to death.
  3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
  4. The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
  5. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
  6. That the accused acted under the duress or domination of another person,
  7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

An attempt was made to illustrate by way of broad examples what would constitute a case where the death penalty could be awarded in the case of Macchi Singh & Ors. Vs. State of Punjab. The list though not exhaustive, broadly underlined the circumstances for imposition of the death penalty. Culling out the principles in Bachan Singh it was held that the community may withdraw the protection by sanctioning the death penalty when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

  1. Manner of commission of murder
  2. When the murder is committed for a motive which evinces total depravity and meanness.
  3. Anti-social or socially abhorrent nature of the crime, for instance killing member of a Scheduled Caste or Schedules Tribe as an act of social prejudice/wrath, or those of dowry deaths.
  4. Magnitude of crime, for instance when the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
  5. Personality of victim of murder. When the victim of murder is (a) an innocent child (b) a helpless woman or a person rendered helpless by old age or infirmity (c)a victim vis-a-vis whom the murderer is in a position of domination or trust (d) victim is apublic figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

The concept of what constitutes a rarest of rare case however, has not been defined either by the judiciary or the legislature, thus leaving ample room for discretion.

The gang-rape and murder of Jyoti Singh Pandey on December 16, 2012 however marked a significant turning point in the field of law governing death penalty in India. The incident sparked a nation-wide outcry and protests over the safety of women, particularly in the National Capital Region, and the increased instances of sexual violence.

Also read: It’s Been 4 Years – What Has The Nirbhaya Fund Done So Far?

There was an increased demand for amendments to laws governing crimes against women and making the same more stringent in terms of punishment. The incident shocked the conscience of the nation and also led to the setting up of the Justice J.S. Verma Committee to review the law governing sexual offences and the consequent passing of the Criminal Law Amendment Act,2013. By virtue of the amendment, Section 376E was introduced to the Indian Penal Code, prescribing capital punishment for a non-homicidal offence. Section 376E allows for the position of the death penalty for repeat offenders in cases of rape not leading to murder.

The decision to hang all four accused has been lauded by many including those present in the Courtroom at the time of pronouncement of the judgment, as is being viewed as a triumph of justice. The parents of the deceased in particular had full faith in the Apex Court and have felt a sense of relief stating that though delayed, justice nonetheless has been delivered by the Supreme Court. The parents of the victim had demanded the severest form of punishment for all the accused right from the start and the nation seemed to follow suit.

The Supreme Court, in its decision, has delivered on the hopes of the public at large, but has subsequently also raised questions by others. Senior Advocate Raju Ramachandran appearing as Amicus Curae in the case was the opinion that the court had failed to follow judicial precedents and ignored the mitigating factors set forth in Bachan Singh which called for setting aside the sentence of death.

Ramachandran had argued against the awarding of a common sentence at the time of trial and stated that no separate reasons having been ascribed for the imposition of death penalty on each of the accused, the sentence should be set aside as the Code of Criminal Procedure mandates that an accused be given an opportunity to be heard individually on the question of sentencing.

Ramachandran had also laid emphasis on the gaps in the narrative as far as the identity of the accused inflicting the injuries with the iron rod was concerned, for it was the act that determined the brutality of the crime and the absence of attribution of individual roles in such a case would not be in conformity with due process. The other aspect argued by Ramchandran at the time of hearing pertains to the charge for criminal conspiracy, there being no evidence of the offence being pre-planned and premeditated. The Court, however, has upheld the charge.

“The values of Mahatma Gandhi have been blown to pieces. Mahatma Gandhi had spoken about non-violence. Human rights have been blown to pieces.”

-A.P. Singh, Defence Lawyer

Further, the decision has also come into question, particularly in the context of varied judicial standards in awarding the death penalty. The Nirbhaya verdict comes only a day after the decision of the Bombay High Court in the case of Bilkis Bano, who too was a victim of gang-rape in the post Godhra riots in 2002, saw her family and child murdered, but in whose case the Court refused to award the death sentence to the perpetrators of the crime, overturning the appeal by the CBI for capital punishment and awarding the three main accused a sentence of life imprisonment. The two decisions delivered a day apart reflect a shifting stand as far as imposition of the death sentence for sexual offences is concerned.

What Lies Ahead

The Supreme Court having upheld the death sentence, the accused may now seek remedy by filing a Review Petition before the Apex Court. If the same is also rejected, the last resort will be by way of a Curative Petition, a concept evolved by the Supreme Court in the case of Rupa Ashok Hurra Vs. Ashok Hurra & Anr., and last resorted to in the case of Yakub Memon.

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