A Comment on Nirbhaya – The Case That Shook the Country

20th March 2020, four men accused of gangrape of Nirbhaya were finally executed by hanging after more than 7 years. “Justice has finally been done”, said Asha Devi, Nirbhaya’s mother. The death sentence awarded gained support both nationally and internationally as the events of the barbaric and heinous crime committed on the night of 16 December 2012 began to unfold. What was so horrific about the incident that it led people to come out on the streets to protest for justice and instill hatred in everyone’s mind against the six accused?

The night of the incident

On 16 December 2012, at around 08:30 p.m., Nirbhaya (real name, Jyoti Singh), a 23-year-old student, along with her 28-year-old male friend, boarded a bus from Munirka bus stand for Dwarka after watching a movie at Select City Mall, Saket. There were six people on the bus already including the driver and the conductor. When these six switched off the lights of the bus, pulled the curtains and took to a different route, an argument took place between the male victim and the six accused. They carried him to the cabin in front of the bus and beat him up with an iron rod making him unconscious. After that, Nirbhaya was taken to the rear end of the bus and was brutally gang-raped by each one of them. They went to the extent of inserting an iron rod inside her which led to her intestines coming out of her vagina and rectum.

When their animal lust was satisfied, they robbed both of them of their clothes and all their belongings and threw them out of the moving bus on the street, naked, in the cold night. They also made an attempt to run the bus over them but the victims managed to move aside and the accused left them there thinking they were dead. A highway patrol vehicle spotted them, called the police and the victims were taken to Safdarjung Hospital for treatment where their statements were taken. Everything possible was done to save her life but she died on 29 December 2012 as a result of multiple organ failure in Singapore where she was taken for treatment.

The trial and sentence

After taking all the evidence into consideration which included the three dying declarations of Nirbhaya, statements of the male victim, DNA samples, dental samples, recovery of the robbed items, the bus, the bloody iron rods and testimonies of the witnesses, the trial court sentenced the five adults accused to death and the sixth accused, a juvenile, was sentenced to three years in a reform facility by the Juvenile Justice Board which is the maximum punishment that can be awarded to a juvenile in India.

The death sentence was sent to the Delhi High Court for confirmation and was confirmed in March 2014. Since then, multiple appeals and curative petitions had been filed by the accused one by one and each one of them was rejected by the Apex Court. Mercy pleas were also rejected by the President and the accused Mukesh Singh, Vinay Sharma, Akshay Thakur and Pawan Singh were finally hanged. One of the accused, Ram Singh had allegedly committed suicide in Tihar Jail in March 2015 but his family members believe that he was murdered.

Surely, justice was done but justice was also delayed. Why did it take this long to punish these animals in human bodies? The procedure states that when two or more people have been given the same sentence for the same offence, and an appeal by one of them is pending in any court, the rest cannot be made to undergo the sentence. The ratio behind this is that if as a result of the appeal filed by anyone of the convicted, the sentence is commuted, it will be unfair to the others if they are already undergoing punishment.

Similarly, in the present case, when appeals were filed by anyone of the convicted to commute the death sentence to life imprisonment, the death sentence of the rest stayed. Again, when a mercy plea had been filed to the President, the rest could not be hanged thereby delaying punishment to this extent. This reflects a loophole in the system which lets people on the wrong side of justice to misuse the remedies provided and abuse the judicial system.

In order to fix this, a change in the procedure is needed which states that if an appeal is preferred by one of the convicts, it should be considered as an appeal by all of them and the decision of the appeal should also be binding on all of them. The ratio behind this would be that when the offence is the same, the sentence awarded is the same, the result of separate appeals would also be the same and hence, no good is achieved by allowing separate appeals. This change would ensure speedy justice to victims like Nirbhaya; even though she did not survive, her parents, activists and protesters fought a seven-year-long battle which if the procedure would have been different, wouldn’t have been this long. 

Death Sentence – right or wrong?

In Bachan Singh[1], the Supreme Court laid down the rule of “rarest of rare case” when awarding a death sentence. The court said that “If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.” It was also held that the court needs to take into account the aggravating and mitigating factors and should maintain a balance between the two. The decision can not be taken considering only one set of factors and completely ignoring the other.

In the present case, the mitigating factors were stated as the strata to which the accused belong, aged parents, marital status, young children, conduct during custody, the reformative path chosen and the possibility of transformation and rehabilitation. The aggravating factors refer to the gruesome acts committed by the accused and do not need repetition. The court while affirming the death sentence stated, “When cautiously, consciously, and anxiously the aggravating circumstances and the mitigating factors are weighed, the Court is compelled to arrive at the singular conclusion that the aggravating circumstances outweigh the mitigating circumstances now brought on record. Therefore, the High Court has correctly confirmed the death penalty and there is no reason to differ with the same.”

There is no doubt that while awarding the death sentence, the courts have followed precedents and procedures, and hence, legally, the death sentence is correct. However, the debate is, when capital punishment does not have any deterrent effect, why sentence it? Critics point out that capital punishments have not been effective in decreasing the number of offenders and hence should be done away with.

A BBC documentary, titled India’s Daughter, which was banned in India, showed an interview with Mukesh Singh, one of the accused. In it, he states that a girl is far more responsible for rape than a boy and Nirbhaya should not have been out on the streets at that hour. This clearly shows that the accused do not have any remorse even after a period of more than 2 years (the documentary was aired on 8th March 2015 in the UK) and when there is no remorse, there is no hope of rehabilitation. If such criminals are not sentenced to death and are allowed to roam freely on the streets once again, who knows who will fall prey to their animalistic intentions. Not only this, but other such people will also gain even more courage to commit such gruesome acts with the mindset that they will get away with it.

Therefore, the author believes that when the crime was of this magnitude and the whole nation was outraged by it, the death penalty was the only justice even if there is little or no deterrent effect.

The case of the accused juvenile

Out of the six accused, one was a juvenile at the time of the incident and hence was tried separately by the Juvenile Justice Board. The protesters argued that when he was competent enough to play an equal part in the heinous crime, he should have been tried as an adult with the rest of the accused. He remained in a correctional home for a period of three years and was released in December 2015. Officials of the rehabilitation centre stated that he has expressed remorse and has also learned cooking and tailoring. A child rights activist, Bharti Ali, stated that “You can’t tell him that he can’t lead another life, that he can only be a criminal. As a society, we must do everything to rehabilitate him and give him another chance.” As his identity has not been revealed and the records have been destroyed for legal reasons, he now lives a normal life among us and whether or not he should have been tried as an adult will always remain a debatable topic.

The Criminal Law (Amendment) Act, 2013[2]

The Central government appointed a committee on 22 December 2012 with J.S. Verma, a former chief justice of India as the head and various eminent jurists, to submit a report within 30 days with suggestions to amend criminal law so that sexual assault offences can be dealt with more sternly. The report was submitted within 29 days after considering nearly 80,000 suggestions. The root cause behind crimes against women was stated as a failure on the part of the government and police. The amendment brought about several changes in the Indian Penal Code, Code of Criminal Procedure and Evidence Act.

One of the major changes in the expansion in the definition of rape thereby including penetration by penis in the vagina, urethra, anus or mouth and using any other object for penetration into the vagina, urethra or anus. It has also been stated that lack of physical resistance does not amount to consent and therefore the scope of consent has been widened. A new section stating that if the woman goes into a permanent vegetative state or dies as a result of the sexual assault, the death sentence can be given. The scope of sexual harassment has widened and voyeurism, stalking and acid attacks have been classified as offences.

No doubt the amendment has taken a long leap in dealing with crimes against women, it has still met with criticism on the grounds that it is gender-biased and that the committee has failed to take into consideration important suggestions. However, the author feels that the amendment is very helpful as it has taken into consideration acts that were not considered as offences but were demeaning to women.

Has the scenario since then changed?

2012 gang-rape case has raised awareness and concern among people regarding crimes against women, it has led to the introduction of new anti-rape laws, but at the same time, crimes against women have been ever increasing. Figures from the National Crime Record Bureau show 33,977 rape cases registered by the police in 2018 which amounts to an average of 93 per day. And this is the number of cases that have been registered, many more cases go unreported due to the stigma attached to sexual offences.

Equally horrific cases have taken place including the Unnao rape cases, Hyderabad rape case, Kathua rape case; so, the question is, when will women in India be safe or will they ever be safe?

The problem lies in the manifest patriarchal mindset that needs to change for the good. Gender sensitization should be carried out from the very beginning in schools and even households so that men can understand that both the genders need to be equally respected. Punishments need to be stricter; people need to fear the law but all this is secondary and the primary change that needs to take place is the change in the thinking that women are not properties in the hands of men.

[1] (1980) 2 SCC 684.

[2] Amendment No. 13 of 2013, came into force on 03.02.2013.

Indu Kumari from GGS Indraprastha University, New Delhi

“I don’t let my mind create limitations for me.”

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