Drawing parallels between the Nirbhaya and the post-Godhra Bilkis Bano cases, some lawyers said there’s no uniformity when it comes to handing out punishments.
“Tragedy of our times”
Stating that she was against death penalty, lawyer Rebecca John said, “The question is that as society and as jurisprudence why we haven’t evolved to a space where we don’t equate justice with death sentence. That’s the tragedy of our times. We seem to equate justice with death. We have different standards of approach for different cases.”
Ms. John said Ms. Bano’s case was equally, if not more, brutal, and yet the Bombay High Court had declined to give death penalty to the perpetrators.
“As an opponent of death penalty, I wouldn’t have supported death penalty in Ms. Bano’s case. But I’m using it as an example just to say that when it comes to handing out punishments, the judiciary doesn’t have a uniform standard. It gives death penalty to some, not to others,” she said.
The lawyer added: “What were the mitigating and aggravating circumstances in the two cases that compelled the Bombay High Court to decline death penalty in Ms. Bano’s case and the Supreme Court to uphold the death sentence in the Nirbhaya case?...There’s no transparency.”
Lawyer Prashant Bhushan said he too was opposed to death penalty. However, in the context of the Nirbhaya case, he saw no reason why death penalty wasn’t awarded in a case in which the then pregnant 19-year-old Ms. Bano was gang-raped, and her two-year-old child and 13 others killed during the post-Godhra riots.
Sexual violence
Lawyer and human rights activist Vrinda Grover said: “I have a principled position against death penalty. I don’t think awarding death penalty in one case is going to create a freer, safer and secure society for any woman in India. Nor will it lead to better investigation and convictions.”
She said it rather distracted people from “focussing on ensuring how do we ensure greater conviction and how do we diminish sexual violence in our society, which is very high”.
“Only focussing on the sentence in this case, according to me, is a way of misleading women and making it appear as though the legal system and the government have created something for women,” Ms. Grover said.
Terming the judgment in Ms. Bano’s case as “very significant”, Ms. Grover said here was a case where by convicting policemen and doctors “the court told us that there was institutional State complicity in sexual violence”, particularly against a Muslim woman.
To a question on uniformity in judgments, lawyer Mahmood Pracha said it reflected on the judiciary itself because there are no fixed standards.
“It [Ms. Bano’s case] was no less a rarest of rare case…I don’t know what weighs in the mind of a judge. In the overall current scenario, it creates doubt in the minds of people. Justice should not only be done but must also be seen to be done,” he said.
