INDIA: Arbitrary death sentencing policy must go

On May 5, 2017, the Supreme Court of India(SC) passed the much-awaited judgment in the case of Mukesh & Anr. Vs the State for NCT of Delhi & Ors. or more colloquially known as the ‘Nirbhaya’ case. The gangrape and murder of the 23year old physiotherapy student in New Delhi on the night of Dec 16, 2012 shook the nation. There were innumerable protests on an unexpected scale across India. The incident was reported all around the world and it put India on the world map, becoming synonymous with a lack of safety in the country, with a ‘rape’ problem. Films were made, numerous op-eds were written, newsroom discussions were held – India would not allow this rape to go forgotten and be just another statistic.

This was ensured with the SC judgment which upheld the death sentence awarded to four of the accused by the Delhi High Court. While the swift judgment is welcome, it has pulled India back into the debate on the death penalty. Indian jurisprudence has evolved the policy on the death sentence and has established that it is to be awarded in the ‘rarest of the rare’ cases, those which shake the ‘collective conscience’ of the people and where the aggravating circumstances and mitigating circumstances strike a balance. For years, activists and scholars have spoken out against this policy as being arbitrary and inherently subjective in nature, as there is no objective way in defining the ‘rarest of the rare’ crimes and even lesser objectivity in determining what the ‘collective conscience’ of a nation like India is, fractured by caste, class, religion, community, gender, language and numerous other categories.

How then can it be determined what the ‘collective conscience’ is and what shakes it? Is the collective the majority? And is it the majoritarian sentiment that will then determine whether someone will be executed or not? How does the majority’s conscience get shaken? What and how much of a role does the media play in this?

In the Nirbhaya case, the constant reportage and continued engagement with the topic resulted in the setting up of the Justice Verma Committee and the passing of the Criminal Law Amendment Act of 2013. Widely lauded for liberalizing the definition of sexual assault in the Indian Penal Code and bringing about stricter punishments and broader definitions, the amendments were a welcome breather, a visible sign of progress. The same media was also bayingd for the blood of the accused, asking for them to be put to death for their violent and sadistic crimes. The influence of this is reflected in the High Court and Supreme Court judgments.

The same week of the Nirbhaya judgment, the Bombay High Court upheld the life sentence in the Bilkis Bano gangrape and murder case. The CBI appealed for an enhancement of the sentence but the Bombay HC refused, stating that the convicts had been in jail for 15 years, that they were history-sheeters or hard-core criminals and the Court must be mindful that a sentencing policy must be balanced on the scale of proportionality. The Bilkis Bano case, many argue, is an equally horrific one, in which raging mobsters targeted the 19-year-old, pregnant Bilkis Bano and her family members, gangraped the women, injured the men and then murdered 14 persons travelling with Bikis Bano, including her two-year-old daughter, and mother Halima. The incident took place during the 2002 Godhra riots in Gujarat.

The two judgments stand out for their differences – the long delay in the Bilkis Bano case, the differences in reasoning for abstaining from enhancing the punishment from life imprisonment to the death sentence and the acute lack of media attention on the case and its horrific details. What of the ‘collective conscience’ in this case? Why was it not shaken? Is it because of the lack of media attention on the case and therefore is that the reason for the Court’s reasoning?

These are complex questions that India faces. The AHRC believes that it is time once again to renew the debate on the death penalty in India and more crucially, the role of the media in shaping and shaking the ‘collective conscience’ and the danger of this standard as the basis for awarding the death penalty. The sentencing policy with respect to the death penalty, as it stands today in India, is arbitrary, incoherent and dangerous in its potential for discretion and subjectivity. Furthermore, it operates within a justice system that is infamous for wrongful convictions and targeting of innocents, with rudimentary investigation methods that still rely on torture. The higher judiciary in India must overturn the ‘rarest of the rare doctrine and the principles relating to collective consceienceon the death sentence and abolish it once and for all.