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Nirbhaya and the Nation get closure, but the Death Penalty debate still rages on

As Nirbhaya’s criminals hanged to death, abolitionists called a travesty what retentionists celebrated as justice.

The deliberations on death penalty gained significance in public discourse the day Nirbhaya’s mother, Asha Devi and her father Badrinath Singh began proceeding from one court to another in search of justice for their daughter, who India named Nirbhaya. 

“Today, you have received justice,” Asha Devi told her daughter’s picture, as she hugged it on the morning of March 20, 2020. 

5:30 am, at Delhi’s Tihar Jail, her daughter’s brutal killers had finally hung to death. The day commenced with full-day news coverage and people on the road holding banners, chanting slogans in celebration. 

But for Nirbhaya’s parents, this morning arrived after a prolonged night of seven years and three months. Like many, they were let down by the system on various occasions. 

The convicts’ counsels applied all delay tactics while exploiting legal loopholes to hold back this morning from Nirbhaya’s parents and the nation. A few women’s right organisations wrote letters to the president to stay the execution. Not far from the hanging, lawyer and activist Indira Jaising even “urged” Asha Devi to forgive her daughter’s criminals and emulate Sonia Gandhi, who forgave her husband’s assassins.

Asha Devi was disgusted at Jaising’s request and responded with allegations that it was because of people like her that rapists could manipulate the system. She accused human rights activists of snubbing the rights of victims to fund their business beneath the guise of activism. “I am no saint. I am a mother of a daughter, who has lost her life. I want justice. Even if God were to ask me to forgive them, I will not.” Asha Devi had stated.

The brutality of that wintery night sent a chill down the nation’s spine, stirring massive public outrage and demonstrations against a lack of security for women and the demand for capital punishment to Nirbhaya’s sadistic killers. Her case redefined India’s rape laws.  

The details are graphic, not nearly as horrific as what transpired that night, but a starting point in understanding why Asha Devi cannot forgive her daughter’s predators as some have suggested. 

On an ordinary night in New Delhi’s December, when Nirbhaya and her friend couldn’t get a single auto rickshaw to drop them home after a movie, they had to settle for a private bus with less than ten passengers. The bus with tinted glasses drove only a little ahead when someone switched off the lights. 

Six barbarians beat Nirbhaya’s friend with iron rods and dragged her to the rear of the bus raping her brutally in turns. She was bitten all over the body and subjected to unnatural sex. They did unspeakable things to her, but fatal was the iron rod which they forced inside her private organs till her intestines tore and came out. For an hour and over 30 kilometres, they ignored her calls for mercy.

Reduced to an object, Nirbhaya passed out. Assuming her dead, the six discarded her and her friend naked from the bus and onto the road, attempting to crush them to death. But Nirbhaya’s friend pulled them away in time. With a stroke of delayed luck, the two survived long enough to be discovered and driven to Safdarjung Hospital. Nirbhaya entered the hospital with her lips split, cuts and bruises over her body, drenched in blood with barely five per cent intestines left inside her. 

After surgery, she longed for even a drop of water which her critical condition did not allow, till whatever remained of her life. According to Asha Devi, she would always regret not fulfilling her daughter’s wish. 

The doctors had exhausted everything that could have saved her. She was flown to Singapore for multiple surgeries but was declared dead from sepsis and multiple organ failure on December 29, 2012. The doctors claimed Nirbhaya only lived this long when she should have died on the road that night because of her strong-will to survive. 

Justice was delayed but served, and the country shared collective relief. However, not everyone shared the sigh. UN secretary-general’s spokesperson–Stéphane Dujarric–reiterated UN’s stand against death sentences after the hanging, while Amnesty International India went as far as to call it a ‘dark stain‘ on India’s human rights record. 

Portals published articles singing justice from the perspectives of convicts and their kin. But it must not be assumed that since their criminals have hung, stories of Nirbhaya and the many victims should disappear. She was a victim. And death to her killers should mean neither the last word on the torture she endured nor spell for her parents, further misery.

Those against capital punishment in India share broadly these concerns: that the death penalty is state-sponsored murder and vengeance, making the state a criminal. It violates rights to equality and life even as no data supports its deterrence effect. It is an irreversible punishment pronounced by a fallible system. The social and psychiatric circumstances of criminals or the influencers behind their behaviour such as illiteracy, poverty etc. are overlooked. 

One of Nirbhaya’s rapists who allegedly committed suicide inside his cell became more aggressive after Nirbhaya bit him to protect herself. He was the one who inspired the juvenile with “Let’s go have some fun.” Their conspiracy stretched to the aftermath of the crime when they destroyed evidence to live the lives of innocents, dividing the loot from that hellish night among themselves, displaying no transgression. They pleaded not guilty

Asha Devi observed the convicts were unapologetic and even cracked jokesduring trials. A few years ago awaiting justice for Nirbhaya, she described her family passing each day in agony, dying a slow death. The banned documentary–India’s Daughter, which released three years after the horrific gang-rape, exposed how one convict remained unrepentant. He held Nirbhaya accountable for the “accident”, calling the night a lesson for her. 

Abolitionists insist we are obligated to reform and rehabilitate all criminals and analyse poverty as a foundation of that reasoning that leads to rape. But surely one can’t presume them all within the scope of recovery? Moreover, do the wealthy and high-profile never rape or kill? Nirbhaya’s rapists were poor. But so was she. A limit in extending reform is not unrealistic; neither is it to accept that some may be past it. 

Apropos deterrence, not the severity of the death sentence but its promptness and certainty(something lacking in our system) drives deterrence. A couple of months ago when asked if death penalties were a solution despite nothing changing in seven years, Asha Devi replied, “I want to ask you, has even one convict been executed for rape, in seven years even Nirbhaya’s rapists didn’t hang, how can we hope to examine if it brought about change or not?” 

So is data on capital punishment as an inefficient deterrent the closing word upon it? R Basant, Senior Advocate, arguesthat reliable empirical data on deterrence may never be found. How can one find the number of crimes notcommitted from fear of the death penalty? How do you record crimes that didn’t occur? He recommends comparing data from periods with and without a death penalty to expect fair results. 

But India has always had capital punishments since independence, and an escalation in capital offences could be from numerous unobservable and subjective factors influencing crime rates, hence such data may be an inaccurate indication on its own. 

Advocate Basant also shared a thought that Indira Gandhi would have been murdered much earlier if her bodyguards didn’t think they’d be killed for their crime, asserting that deterrence is perceptible subjectively, but difficult to determine empirically.

As J Sai Deepak, Advocate, putsit, it is a terrible logic to say hanging doesn’t reduce crimes as that approach questions the very existence of concepts of law and punishment and their utility as deterrents.

Obstacles in keeping reform open to allinclude repeat offenders and risks associated with granting bails, amidst recurring instances of out-on-bail criminals assaulting their victims and other citizens. Last year in Kota, a 36-year-old rape survivor along with her husband, was stabbed by a rapist. In Jharkhand, a gang-rape victim’s father was murdered by five accused men. This year two men accused of raping a minor were arrested for killingher mother. In February, a man from Gujarat raped and killed his 6-year-old niece. All of them were out on bail.

Activists rightly pinpoint that about 100 countries abolished capital punishment. Yet it is also true that South African citizens are demanding the death penalty back. A petition is up with more than 6 lakh signatures, demanding capital punishment for crimes against women. 

Philippines President Rodrigo Duterte expressed a similar view for return of the death penalty for drug traffickers. The USA recently restored the penalty for federal inmates. Russia, with a moratorium, has more people asking for a death sentence for hardened criminals in 2019 than two years before, with half the population now favouringno moratorium.

As per a YouGov poll, 58% Britons approved the death sentence for murders in terrorist acts, 57% for multiple murderers, 53% for the murders of children and 47% for murders of police officers. 

India is one of the retentionist countries keeping a death penalty, first constitutionally upheld by the Hon’ble Supreme Court, in Jagmohan vs State of Uttar Pradesh, AIR 1973 SC 947.

A constitutional bench in Bachan Singh vs State of Punjab,AIR 1980 SC 898,provided the doctrine of”rarest of rare” to be applied when alternatives are dismissed indubitably, i.e. onlywhen a murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

In the Machhi Singh vs State of Punjab, AIR 1983 SC 957case, the supreme court ruled the criteria for cases to fall in “rarest of rare” ambit. These covered “manner of commission of murder, motive for commission for murder, socially abhorrent nature of the crime, magnitude of the crime and personality of victim of murder.” 

With these guidelines,inter alia, it is to be assessed whether something unusual about the crime makes life imprisonment insufficient and whether the death penalty is unavoidable despite due consideration to mitigating circumstances in the offender’s favour. 

The Indian judicial system further provides the accused with adequate opportunities through a hierarchy of courts from trial and conviction to curative and mercy petitions for them to commute their sentence and be spared gallows. As per National Crime Records Bureau, from 2328 convicts awarded capital punishment between 2001 to 2018, only four convicts faced execution. No rulings are furnished hurriedly. Besides, as seen in Nirbhaya’s case, the delay only serves the convicts. 

This inordinate delay in receiving justice, some contend, is why the public applauds encounters. The supreme court has recently agreed to examine the centre’s plea for ‘victim and society-centric’ directions in death penalty cases to confront this matter.

The UN condemns capital punishment. Nonetheless, as per Article 6(2) of International Covenant on Civil and Political Rights, countries which retain capital punishment are instructed to use it solely for grave crimes following the law in force after a competent court announces a judgement.As noted above, India strictly obeys the same, awarding capital punishment onlyas an exception in extreme cases while life imprisonment remains the rule. 

Responding to one of centre’s requests for an opinion on abolishing the death penalty, from 14 States and 5 Union Territories, 90% favoured to retain it. In 2018, the Punjab Government under Captain Amrinder Singh suggested the centre to consider the death penalty for drug smuggling. According to Singh, drug menace ruined generations in Punjab requiring exemplary punishment.

Defending the death penalty neither rejects the necessity of reforms in policing and vigilance nor supports indiscriminate use of the state’s monopoly on violence. Crimes must be fitted with proportionate punishments. And that is not an ‘eye for an eye’.

Crime and punishment morally differ; they are not one of the “two wrongs” which don’t make a right. To call the death penalty murder and violation of life is to call a jail-term kidnap and violation of personal liberty. Both rights are subject to the procedure established by law. Killings are not morally equitable either. You can’t equate Nirbhaya’s killing/murder with the killing/punishment sentenced to her murderers. 

Justice is impartial, rational and provides closure. It is detached and restricted with limits. Revenge is emotional, personal and retaliatory. No one in India is granted capital punishment without a thorough and fair trial first. Further, all improvements wanted in the legal system can be worked upon even with the penalty in force. 

One of the surgeons treating Nirbhaya said he had never witnessed a patient like her with cruel and incurable injuries inflicted by a human, in almost 40 years of his practice. If the gory, gut-wrenching details of how Nirbhaya was subjected to fatal gang-rape do not ace the tests of rarest of the rare, inviting the maximum punishment of death penalty, what will? 

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Stuti S.
Mostly Harmless.

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