The Supreme Court verdict in ‘Mukesh and another vs State of NCT of Delhi and others’ more known as Nirbhaya case confirming the death sentence to all living accused, except one, has been hailed all-over the country .A tiny group of the human right activists has, however, been campaigning for the abolition of death penalty from the statute itself. The person, who has escaped the punishment, was a juvenile in conflict with law (JCL) at that time, although he was found to be more responsible than any other of them for the heinous, horrendous and perverted bestiality of inserting iron rod in the private parts of the helpless girl rupturing her intestines. The revolting and heart wrenching crime that was inflicted upon the twenty-three-year-old paramedical girl in the evening of 16th December 2012 had shaken the entire country. There were spontaneous agitations and demonstrations in different cities, small towns and even in villages all over the country. Candlelight marches were taken out for awarding exemplary punishment to criminals in almost all major cities of the democratic countries across the world.
The death sentence is awarded only in the ‘rarest of rare’ cases. This phrase of ‘rarest of rare’ cases was introduced by the Supreme court way back in 1980 in Bacchan Singh’s case and it was further concretised in the ‘Macchi Singh and other vs State of Punjab’ wherein the Supreme Court observed that normal rule is ‘life sentence and death sentence is exception’. In other words, death sentence must be imposed only when the imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and provided the option to impose sentence of imprisonment for life cannot be consciously exercised. The court has also sounded a note of caution by saying that ‘undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure such serious threats. Therefore, it is the duty of every court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed’.
It is necessary to briefly narrate the story of the case. The girl, referred to earlier, had gone to see a movie in a cinema hall of Saket in New Delhi. She and her friend boarded a bus to be dropped to their destination but in the moving bus she was brutally assaulted and gang raped by six persons including the driver and bus conductor. Her friend was beaten black and blue when he resisted to their beastly act. The girl and her friend, both were thrown out of the bus by the criminals when they realised that both victims were dead. They were stripped naked in the shivering cold December night. A motor cycle borne passer-by found the girl in a pool of blood and her companion in semi-conscious condition. He informed the police which reached the spot very soon. Both victims were taken to the hospital where their statements were recorded. The girl slipped into coma soon after. Multiple operations were carried out on her body to save her life. She was flown to Singapore for better treatment but she could not regain her consciousness and passed away. Entire country was jolted with shock. The government formed Justice a committee under the chairmanship of the former Chief Justice of India to suggest amendments to deal with sexual offences more sternly and effectively in future. The suggestions of the committee led to enactment of Criminal Law Amendment Act 2013, which inter alia brought in substantive as well as procedural reform in core area of rape law. This case lingered on in different courts for nearly five years but on 5th of May got the finality from the Supreme Court.
Crime against women is unlawful intrusion in her right to privacy which offends her self-esteem and dignity. It is an irony that while a woman’s right in all spheres are celebrated, little or no concern for her honour are shown. It is a sad reflection of attitude or indifference of the society towards the violation of human dignity of the victims of sex crimes. It must be remembered that a rapist not only violates the privacy of victim and her personal integrity but inevitably causes serious psychological as well as physical harm to her in the process. Rape is not merely a physical assault; it is often destructive of the whole personality of victim. A murderer destroys the physical body of victim but a rapist degrades the very soul of the helpless female. The Supreme Court has, therefore, heavily come down on the convicts and has given a message to the entire society. The Court has said that a socially sensitised judge is better statutory armour than the long clauses of penal provisions. For the practical application of doctrine of rarest of rare cases, the Supreme Court has prescribed five ingredients and they are (a) the manner of commission of crime (b) motive (c) socially abhorrent nature of crime, (d) magnitude of crime and (e) personality of victim of murder.
Needless to say, that the rape and killing of Nirbhaya had shocked the collective conscience of the public as it was committed in extremely brutal, grotesque, diabolical, revolting and dastardly manner arousing the intense and extreme indignation of society. The Rape and murder was committed for a motive which evinced total depravity and meanness. It was done in cold-blooded manner. The enormity of crime had crossed all limits. The helpless woman was raped and murdered with inconceivable ghastliness and hence it was found to be the fit case for awarding the capital punishment to convicts. The Supreme Court went into detail with regard to the mitigating circumstances and came to the conclusion that there was not even an iota of chance to have awarded anything less than death sentence to the convicts. On the other hand, it found that aggravating circumstances were diabolic in nature; their action was brazen, horrific and inhuman which sparked the public protest across the country. Quoting Swami Vivekanand, the judgement said that ‘the best parameter of progress of nation is treatment of its women’. The crime against women not only affects women’s self-esteem and dignity but also degrades the pace of societal development. This judgment will, hopefully, serve as an eye-opener to end violence against women and for generating respect for women and her dignity by sensitising public at large.
Every individual irrespective of his or her gender must be willing to assume the responsibility and fight for gender justice and awaken public opinion in its favour. More than women, it is the men who are to be sensitised on issue of gender justice which can be won only with implementation of legislative provisions and adopting pro-active steps in all levels for combating violence against women. However, there are many activists, who feel that life imprisonment should be the highest punishment to be awarded to any convict particularly, in this era and time when human rights need to be given the paramount importance. They say that taking away of the life by the due process of the law is more inhuman and condemnable than by any hardened criminal. The brutality of the crime should not be the relevant consideration for the death penalty, which the Supreme Court has rejected with the total vehemence.