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Why The Supreme Court Felt Death Penalty Was Justified For The Delhi Gangrape Convicts

'If this isn't rarest of rare, what is?'

05/05/2017 7:31 PM IST | Updated 05/05/2017 7:41 PM IST
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This combination of images created on September 24, 2013, shows convicted Indian prisoners (L/R): Akshay Thakur, Vinay Sharma, Mukesh Singh, Pawan Gupta as they arrive for an appearance at The High Court in New Delhi on September 24, 2013.

Roughly five years after a 23-year-old girl was gangraped and tortured on a moving bus in Delhi -- which ultimately led to her death -- the Supreme Court of India has upheld a Delhi High Court judgment sentencing four people convicted for the crime to death. It has been extensively argued that the death penalty has no place in liberal, progressive societies because a murder is a murder and cannot be dressed up as 'justice'. In the concluding part of a detailed, exhaustive 429-page verdict, the Supreme Court tackled the moral dilemma of awarding a death sentence -- increasingly considered redundant in many progressive countries. Demolishing a majority of the defence counsels' arguments, the concluding section of the verdict penned by Banumathi explains why the court decided to go ahead and uphold the Delhi HC judgment.

Demolishing a majority of the defence counsels' arguments, the concluding section of the verdict penned by Banumathi explains why the court decided to go ahead and uphold the Delhi HC judgment.

At the outset they declare that the three-judge bench headed by Dipak Misra had considered the scope of rehabilitation of the convicts. The judgment says: "To be very precise, the nature and the manner of the act committed by the accused, and the effect it casted on the society and on the victim's family, are to be weighed against the mitigating circumstances stated by the accused and the scope of their reform, so as to reach a definite reasoned conclusion as to what would be appropriate punishment in the present case- 'death sentence', life sentence commutable to 14 years' or 'life imprisonment for the rest of the life'. "

Seeking to weigh what the court calls 'aggravating' circumstances against 'mitigating' ones, the court first recaps the night's incident's in graphic details and recounts how not only did the men take turns to rape her, they subjected her to anal penetration, bit her all over the body, punched and hit her and then inserted an iron rod which perforated the wall between the vagina and the rectum, tore the colon and also dragged the intestines out. Fearing she had died, they then threw the duo out and tried to run them over with the bus. The victim's friend managed to drag himself and her away, which is how she survived then. Also, the court noticed that the convicts had set out in a bus to find victims with the clear intent of brutalising her.

The judgment then goes on to observe that not only does the act reveal their brutality, the convicts seem unfamiliar with "not only to the norms of the society, but also to the norms of humanity".

Commenting on what they call the 'diabolic' nature of the crime, the court says: "The brazenness and coldness with which the acts were committed in the evening hours by picking up the deceased and the victim from a public space, reflects the threat to which the society would be posed to, in case the accused are not appropriately punished. More so, it reflects that there is no scope of reform."

The judgment then goes on to observe that not only does the act reveal their brutality, the convicts seem unfamiliar with "not only to the norms of the society, but also to the norms of humanity".

Then the judgment says that on considering the 'mitigating' factors like their coming from a rural area, poor parents, lack of criminal records, the judges couldn't find convincing evidence of scope of reformation. Then explain that if a crime is as 'heinous' as this one, having no prior criminal record, post-crime repentance or good behavior isn't enough to reduce the quantum of punishment.

"Factors like young age of the accused and poor background cannot be said to be mitigating circumstances. Likewise, post-crime remorse and post-crime good conduct of the accused, the statement of the accused as to their background and family 426 circumstances, age, absence of criminal antecedents and their good conduct in prison, in my view, cannot be taken as mitigating circumstances to take the case out of the category of "rarest of rare cases". The circumstances stated by the accused in their affidavits are too slender to be treated as mitigating circumstances," the judgment says.

Declaring that the idea of awarding any other punishment to the perpetrators was 'unquestionably foreclosed', the court says that the convicts manifested 'human lust in demonic form'.

The court also observes that when a crime is as shocking as this gangrape case, the society was right in expecting commensurate punishment and showing the perpetrators sympathy would amount to destroying people's faith in India's criminal justice system.

Declaring that the idea of awarding any other punishment to the perpetrators was 'unquestionably foreclosed', the court says that the convicts manifested 'human lust in demonic form'. "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, 427 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," judge R Banumathi writes.

Wondering if we can actually claim to live in a civilized society if women can't feel the 'same sense of liberty' as men do in a society, the judgment says that people look forward to the state to take effective remedial action.

"... despite the progress made by women in education and in various fields and changes brought in ideas of women's rights, respect for women is on the decline and crimes against women are on the increase. Offences against women are not a women's issue alone but, human rights issue. Increased rate of crime against women is an area of concern for the law-makers and it points out an emergent need to study in depth the root of the problem and remedy the same through a strict law and order regime. There are a number of legislations and numerous penal provisions to punish the offenders of violence against women. However, it becomes important to ensure that gender justice does not remain only on paper," the judgment says, encapsulating the concerns of several women in India.

Banumathi, who has authored the concluding part of the judgment -- the rest of which has been written by Dipak Misra and Ashok Bhushan -- hopes that the death penalty will pave the way for increased safety for women. "Public at large, in particular men, are to be sensitized on gender justice. The battle for gender justice can be won only with strict implementation of legislative provisions, sensitization of public, taking other pro-active steps at all levels for combating violence against women and ensuring widespread attitudinal changes and comprehensive change in the existing mind set."

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