Nirbhaya Verdict: Sparing Delhi Police Doesn’t Set a Good Example

By letting the Delhi Police off the hook, the Supreme Court has stopped short of bringing in reforms.

By letting the Delhi Police off the hook for a weak initial probe, the Supreme Court has stopped short of ushering in reforms. (Photo: Susnata Paul/ The Quint)

The Supreme Court’s judgment in the Nirbhaya gangrape that shook the nation is an abdication of judicial responsibility. The apex court may have confirmed the conviction and death sentences awarded to the four surviving convicts, but has done so in a manner that is unlikely to inspire confidence in the court’s ability to deliver impartial and independent justice.

Also Watch: Nirbhaya Verdict a Victory, But Long Way to Go Before We Rejoice

Clean Chit to the Delhi Police

In the days following the incident, the Delhi Police found themselves at the receiving end of public ire. While Delhi has one of the best police-civilian ratios in the country, a large fraction of Delhi Police personnel are on “VIP duty” most of the time, and aren’t even directly accountable to the elected representatives of Delhi. Their callousness, insensitivity and outright hostility to sexual assault victims were talking points in the immediate aftermath of the December 2012 gangrape incident.

A reading of the factual background of the case leaves some key questions unanswered:

1. How was a bus allowed to ply without permits and regulation at that hour of the night?
2. How did an off-duty private bus manage to traverse the width of Delhi over a couple of hours without a single policeman noticing or stopping it?
3. How long did the police take to respond to the calls for help from the victims when they were thrown out of the bus?
4. How did the police eventually find the owner and location of the bus in a day?

These questions do not necessarily have a bearing on the guilt of the accused. At most, they may have played a minor role in mitigation.

Police Lapses

The Nirbhaya case sparked a nationwide discussion about the issue of women’s safety in public spaces, and the misogynist attitudes prevalent among our police forces. The initial reporting in the case highlighted a number of failures on the part of the Delhi Police in ensuring safety, or even basic law and order, in this case.

The police weren’t outwitted by genius criminals; they weren’t acting on the orders of influential personalities, and neither were they taken by surprise - but the failures of the police do not feature in the judgment.

Instead, all the courts handling this case were effusive in their praise for the police. They failed to ask the key questions, and accepted, at face value, the police’s somewhat bizarre claim that they traced the location of the bus based on “secret information”. They didn’t probe the police or the prosecution on the failures and lapses which led to this horrific crime.

Especially so when J Bhanumathi’s concurring opinion pontificates on the measures required to improve safety for women in public spaces, and the need to overcome misogyny and patriarchy.

Well intentioned as it is, this is not the court’s job. Indeed, it is hard to take the court’s homilies seriously, considering it neglected to hold the police accountable for its failings in this case.

Also Read: Hang the Rapists: Nirbhaya Verdict as Kant, Camus Would’ve Seen It

Collective Conscience or Will of the Mob?

While the court has gone into every single aspect as regards the conviction and found sufficient basis to uphold the High Court judgment, its failure to do the same on the issue of the death penalty is galling.

Both, the main judgment by Justice Dipak Misra and the concurring opinion by Justice Bhanumathi, ritualistically quote all the relevant judgments which have laid down the law on how the court should decide whether to award death penalty. But they completely fail to even engage with the law, let alone apply it properly.

The death penalty being awarded only in the “rarest of rare” cases, there is a duty on the courts to properly apply their minds on whether the case constitutes the “rarest of the rare”. The law, as it stands, requires the court to draw up something like a balance sheet to examine the “aggravating” and “mitigating” factors which will go into deciding whether the convicts deserve the death penalty.

Instead of properly examining the factors, the court takes shelter behind mindless rhetoric and bombast. It invokes that meaningless phrase, “collective conscience”, to avoid taking the tough call on whether the convicts genuinely deserve the death penalty. No credence is given to the age, socio-economic background, the possibility of reform, or any of the factors which have been held by courts as mitigating factors.

Candles lit to pay homage to Nirbhaya in New Delhi on 5 May 2017. (Photo: IANS)

What one gets instead is the sense that the court has been swayed by public opinion on this matter, instead of independently applying the judicial mind.

Also Read: Nirbhaya Verdict Is an Exception, but Misogyny Is Still the Rule

Shifting goalposts will not serve the cause of women safety in the long-term. (Photo: Reuters)

Back to Square One

The failure of the court to hold the Delhi police to account suggests that it has utterly misunderstood the role of the criminal justice system in ensuring the safety of women in public spaces (J Bhanumathi’s concurring opinion notwithstanding).

The death penalty awarded here suggests a court that still clings to the discredited “deterrence theory” of punishment; or worse, the barbaric “retribution theory” of crime and punishment. Neither of these address the systemic and larger societal failings that encourage and normalise sexual assault of women in India.

The court has avoided asking the hard questions. Have the police rectified the many failings in the Nirbhaya case? If a rape is indicative of medieval and barbarous thinking, doesn’t awarding punishment in a similar manner only reinforce that thinking? Has the judiciary made any progress in ensuring that a not-so-high-profile rape case moves through the system as quickly as this case did?

Such abdication of judicial responsibility by the Supreme Court, in a case concerning the death penalty, may satiate the bloodthirst of a few. It doesn’t really help the institution or society or women in the long-term or short-run.

Also Read: Bilkis Bano vs Nirbhaya: All That’s Wrong With Capital Punishment

(Alok Prasanna Kumar is an advocate based in Bengaluru and can be reached @alokpi. Views expressed here are purely personal. The Quint neither endorses nor is responsible for the same.)