The decisions of the Bombay High Court in the Bilkis Bano case and the Supreme Court in the Nirbhaya case should be a moment of truth. Both cases have followed vastly different trajectories, but ultimately, these cases had the opportunity to constitute a vindication of our justice system, to demonstrate that those who break the law will not escape the consequences.
To an extent, they have done this. Both cases will be remembered for years to come – for overcoming official interference and communal considerations (in the Bilkis Bano case) and for showing us that the judiciary is capable of disposing of a matter efficiently within a reasonable time period (the Nirbhaya case).
The brutal rape and murder of Nirbhaya also led to the Justice Verma Committee’s recommendations, which in turn led to stricter laws on crimes against women and the creation of fast track courts to deal with these awful crimes.
Unfortunately, these two judgments, delivered within a day of each other, are also representative of one of the biggest flaws in our criminal justice system: capital punishment.
Do We Want Capital Punishment?
Capital punishment was at issue in both cases. In the Bilkis Bano, the Bombay High Court did not accept the CBI’s appeal to enhance the sentence of three of the accused from life imprisonment to death. In the Nirbhaya case, the Supreme Court upheld the death sentence for the four surviving accused (excluding the ‘juvenile’).
The reactions to these decisions of the courts have been illuminating. Responses by the public on social media have, on the whole, been firmly in favour of the death sentence and Justice Misra’s judgment has been mined for the choicest of quotes by the media to express a similar view.
Some, like Lok Sabha MP Asaduddin Owaisi, have demanded the death sentence for the convicts in the Bilkis Bano case, angry that there appear to be different standards in the way punishment is meted out.
It is this point that demonstrates the failings in the capital punishment system in India. Though the facts of both cases are substantially different, there are parallels between them.
Both involve murders in cold blood. (In the Bilkis Bano case, the court was dealing not only with the gang rape but also the murder of 14 of Bilkis’ relatives by the gang rape case convicts.)
Both involve brutal sexual violence against women. Despite this, not only were the punishments for each case different, the manner in which the courts approached the matter of sentencing in the cases varied significantly.
One might think that this is only natural and doesn’t merit attention. However, on further analysis, these decisions demonstrate in a nutshell the fundamental arbitrariness of the awarding of the death sentence in this country.
The Arbitrary Hangman
At the outset, it should be noted that the death penalty cannot be imposed for the crime of rape or gang rape (which has its own sub-section in the IPC section on rape). The possibility of capital punishment in these cases arose because the sexual violence was accompanied by murder.
The foundations of India’s contemporary death penalty jurisprudence lie in two judgments of the Supreme Court in the 1980s. Bachan Singh vs State of Punjab (1980) 2 SCC 684 affirmed that life imprisonment was to be the norm for the offence of murder, not the death sentence.
It also introduced to our jurisprudence the position that the death penalty should be imposed in the rarest of rare cases and upon a careful balancing of aggravating and mitigating circumstances. Machhi Singh vs State of Punjab (1983) 3 SCC 470 delved further into what constituted “rarest of rare”, stating that:
But the community will not do so in every case. It may do so ‘in the rarest of rare cases’ when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty.
As binding judgments of the Supreme Court, any court which is considering capital punishment must engage with these two judgments. Bachan Singh makes an admirable, if eventually flawed, attempt to ensure that a careful balancing act is made when assessing whether a case merits the death penalty. Machhi Singh is also well-intentioned, but the expansion of the idea of collective conscience playing a role in deciding to impose the death penalty makes it deeply problematic.
Because at the end of the day, no matter what guidelines are followed, no matter what consideration is made, the decision to impose the death penalty is inherently subjective. Judges have consistently taken different views as to whether cases with similar facts would constitute rarest of rare cases.
And when the facts are different, it is even more of a ‘lottery’ – as Amnesty International’s landmark report (the ‘Lethal Lottery’ report) in 2008 found. From 2000 to 2008, for instance, the Supreme Court’s imposition or confirmation of a death sentence was practically dependent on whether Justice Pasayat was hearing the matter or not.
To then add the vagaries of the concept of collective conscience to these decisions just enhances the existing arbitrariness.
Refusal of the Death Penalty in the Bilkis Bano case
Just take the Bilkis case. The case involved the murder of 14 people, in cold blood, for no cause other than that they were Muslims. One of these was a three-year-old child, killed by smashing her head against a stone. It is not difficult to view this as being not only a rare case, but also one of extreme brutality.
The accused could not even lay claim to any mitigating circumstances in relation to their character at the time, such as mental distress. They killed the men in the group immediately, then took their time to rape three women, then killed them as well (Bilkis had fallen unconscious during the rape, and her captors thought her dead).
And yet, neither the trial court nor the High Court saw this as deserving of the death penalty. The High Court decided not to grant the CBI request to enhance the sentence of three of the accused because they felt the sentence of life imprisonment was not inadequate for them.
This was done on the basis of the following reasons. First, the Court noted that the incident took place in the context of the riots, with mobs out for revenge against Muslims. Secondly, it observed that the three had no previous criminal history and were therefore not repeat offenders.
Thirdly, the judges took into account the fact that though the three were the ringleaders of the mob, Bilkis did not accuse two of them of personally killing anyone, or of raping anyone except her, while the third committed only one murder (that of her three-year-old daughter, Saleha). Fourthly, they noted that fifteen years have passed since the incident. There is no mention whatsoever of the concept of collective conscience.
Imposition of the Death Penalty in the Nirbhaya Case
On the other hand, in the Nirbhaya case, all the courts found the death sentence, imposed by the trial court and the Delhi High Court, to be warranted. Notwithstanding criticisms of Justice Misra for his other judicial misadventures, his judgment does comprehensively examine death penalty jurisprudence in India. Further to this, an examination is made of the balance sheet of aggravating and mitigating circumstances.
There is no doubt that the violence against Nirbhaya was barbaric in the extreme and the details of what was done to her are noted by Justice Misra in his judgment for himself and Justice Bhushan, as well as Justice Banumathi in her separate but concurring judgment. However, both judgments tie a crucial link in their decision on the sentencing to the shocking of the collective conscience by this crime.
The Elusiveness of Collective Conscience
There can be no doubt that the Nirbhaya case did have an impact on the public consciousness in an extraordinary manner. The problem, however, is that this same collective conscience was, inexplicably, not triggered in relation to the brutal murders of Bilkis’ family, or the massacres at Laxmanpur Bathe or Khairlanji. The court in Bilkis’ case did not even bother with considering whether the public was horrified by what happened.
So why was this collective conscience not triggered? The crimes in the Bilkis case were barbaric in the extreme, and yet the public outcry over them is conspicuous in its absence.
Some will point to the politicisation of the issue, given the still-contentious matter of whether our current Prime Minister enabled the violence in Gujarat to happen. Some will point to, in a favourite phrase of the courts, “the effluxion of time”.
Others will point to the fact that Bilkis and her family were poor, rural Muslims. Still others will point to specific efforts made by the media to make less noise about Bilkis’ case. It will never be entirely clear why the case never triggered the outrage Nirbhaya’s did.
What is clear, however, is that collective conscience is an unreliable basis for a court to take into consideration, especially when deciding whether to take someone’s life. It is also clear from the decision of the Bombay High Court in Bilkis’ case that applying any other reasoning while deciding on imposing the death penalty also runs the risk of being specious and utterly arbitrary.
The Necessity of Reform
In such circumstances, the imposition of capital punishment in this country desperately needs reflection, by both the state and the public in general. Regardless of one’s personal stance on imposition of the death penalty, it should not be difficult to acknowledge that there is no consistency to the manner in which it is imposed.
Even when a case appears to be a textbook case deserving of the death penalty (as Justice Banumathi viewed the Nirbhaya case), we cannot ignore how in case after case, the arbitrariness of the system has led to the imposition of this sentence on the most disadvantaged groups in society, and the way in which it is carried out, with interminable delays and inhumane conditions for those on death row.
Amnesty International’s ‘Lethal Lottery’ report and the pioneering work of the Death Penalty Research Group at NLU Delhi are great places to read up on this.
And if the system is so inherently flawed, we have to consider reforming it. Even if this means that in a case that we all feel strongly about, like Nirbhaya’s, the perpetrators do not receive the punishment we intuitively want them to.
Whether the final solution is the abolition of the death penalty or a moratorium on it till more consistent guidelines can be drafted, is something which needs further engagement.
What we can say with certainty, however, is that retaining the current system means allowing arbitrary considerations and fictions like the collective conscience to compromise our justice system – and that is something we cannot afford.
(The writer is a lawyer qualified to practice in India and England & Wales and can be reached @VakashaS. He is currently working with a boutique tax advisory firm in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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