New Delhi: A fast-track court on Friday awarded death sentence to four men convicted of the 16 December Delhi gang-rape whose victim died two weeks later. The decision comes in the midst of escalating crimes against women.
The offence committed by Mukesh Singh, 26, Akshay Thakur, 28, Pawan Gupta, 19, and Vinay Sharma, 20, falls under the rarest of rare category, warranting capital punishment, additional sessions judge Yogesh Khanna said.
“In these times when crimes against women are on the rise, courts cannot turn a blind eye to this gruesome act,” the judge said. “There cannot be any tolerance.”
The men raped a 23-year-old physiotherapy student in a moving bus in Delhi on 16 December and left her brutalized. She died in a hospital in Singapore, where she was taken for treatment, on 29 December. The gang-rape triggered nationwide outrage and calls for tougher punishment for crimes against women.
“A perusal of the judgement shows that two factors played a very crucial role in the punishment—one was the premediation of the offence and the second is the degree of brutality with which the offence was committed,” said advocate Nikhil Mehra.
Two others were accused in the case. One of them, main accused Ram Singh, allegedly committed suicide, and the other, a juvenile, has been sent to a reform home for three years.
The case and the sentence awarded to the accused highlighted a deep divide on the issue of capital punishment.
Khadijah Faruqui, a women’s rights activist and consultant for the 181 Helpline for Women in Delhi, said she welcomed “the sensitivity, swiftness and precision that the investigative agency and the judiciary have displayed in the case... The punishment has been awarded as per the penal provisions,” but added: “I personally believe that execution is not a response. State cannot take away what it cannot give.”
The 181 Helpline for Women was set up on 31 December following the Delhi gang-rape.
Welcoming the court’s decision, Sushma Swaraj, a leader of the main opposition Bharatiya Janata Party, said on microblogging website Twitter, “This will serve as a deterrent for such offences.”
Former police officer and now anti-corruption activist Kiran Bedi in her Twitter post said, “Relieved to see beast sent to hell! If this happens in each case, message will be one! U commit such crime u go to hell!”
While many others have expressed similar opinions, those opposed to the death penalty vehemently disagree.
“Crime and punishment can’t be left to the mob in a democracy. Therefore, law is the mediating device,” said Siddhartha (he goes by only one name), an advocate who is currently representing 17 death row convicts whose mercy petitions have been rejected by the President.
While the new law, Criminal Law (Amendment) Act, 2013 enhanced punishment for rape, it did not introduce the death penalty for rape, despite the public outcry. As per the new law, capital punishment has been restricted to cases where either the victim dies or is left in “persistent vegetative state”. In such cases also, a minimum punishment of 20 years’ imprisonment has been laid down. The judge can, however, exercise her or his discretion to award the death penalty. The previous penal statute awarded death only in cases where murder had been committed.
The Verma committee, set up as a precursor to the eventual amendment, had also refrained from recommending death penalty for rape cases. The panel was headed by former Chief Justice J.S. Verma, who has since died.
Mehra, who assisted the committee, explained the considerations that were weighed for rejecting the death penalty. “If death penalty were to be made a punishment for rape, the rates of acquittal would be much higher (as) judges would be hesitant to convict due to the onerous burden of imposing the death penalty and there would be fewer convictions.”
Discussing the precedents and legal position on the issue of death penalty in cases of rape and murder, Mrinal Satish, associate professor at the National Law University, Delhi said, “The Supreme Court itself has held that the entire pool of cases where death penalty was awarded for rape and murder as well as those cases where life imprisonment was given, must be whetted. Then it must be seen where the particular case falls in such a scenario and then punishment should be awarded. After studying precedents, we find that cases worse than this did not result in death penalty.”
The subjectivity and uncertainty in awarding death penalty has long been criticized by experts. The Indian penal statute does not lay down standards for what would amount to “rarest of the rare” cases that merit capital punishment. Legal experts say that even the precedents of the apex court do not give a clear, conclusive picture.
“When we peruse precedents, we see the arbitrariness in judgements and excessive reliance on ambiguous and subjective terms like “collective consciousness” of the society”, points out Satish.
Discussing recent pronouncements of the Supreme Court, Siddhartha said the court has held that in the presence of any mitigating factor such as no criminal history, young age, weak social background, death penalty cannot be awarded. “Death penalty could only be awarded if there were no mitigating circumstances favouring the accused, as per a 2013 decision of the Supreme Court. These mitigating factors were also present in this case,” he said.
Death penalty is also unlikely to act as a deterrent, considered the main purpose of punishment, say experts.
“The real deterrence lies in having an efficient justice admin system where the investigation is efficient and speedy, the accused is convicted, there is clarity on the sentence and the same is upheld till the final stage,” said Mehra.