There was nothing unexpected about the final verdict of the Supreme Court in the ‘Nirbhaya’ case . Given the public outcry for justice and the inherent brutality of the rape and murder of the physiotherapy student in Delhi in December 2012, the award of the death penalty to those found guilty is unsurprising. The fact that a juvenile offender involved in the heinous offence was let off after the statutory maximum period of confinement in a juvenile home had already given vast sections of the public an impression that at least one of the infamous six had walked free. This factor may have increased the burden of expectation on the court, rendering it even more difficult than it was to award a lesser sentence to any of the four available for trial and sentencing after the suicide of Ram Singh, the apparent ringleader, while in prison. The court’s reasoning for sentencing all the four to death is steeped in the language and jurisprudence of outrage.
A moral dichotomy
Prosecutions are always in the name of society and the forensic claim that all criminal justice is about the twin objectives of protecting society and deterring crime has a hoary history. While leniency in sentencing is seen as an individual benefit flowing from a judge-centric approach to justice, severity is invariably in the name of society. Thus, in the maze of Supreme Court decisions that set out judicial reasons for awarding or avoiding the death penalty, there is a clear moral dichotomy in approach. Verdicts that spare the lives of the guilty take recourse to norms that have limited social appeal: for instance, that the accused are relatively young, not habitual offenders, that there is scope for reform or that the crime was not premeditated or was a result of a rare lapse. Those that allow capital punishment, on the other hand, not only contain normative reasoning that seeks to slake social thirst for retribution but also use strong descriptive elements to win over a wider audience. They often argue, for instance, that the crime has shocked society and the collective conscience, that it was brutal, depraved or caused extreme and intense indignation.
In the Nirbhaya case, too, the citations inevitably lead to the main point drawn from Machhi Singh (1983) that capital punishment is to be given 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 death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.” There are repeated references to “collective conscience” and “society’s cry for justice”. There is little doubt that the national outcry that the gruesome incident evoked is at the heart of the ultimate outcome, as the defence lawyers and amicus curiae appointed by the court argued in vain for separate assessment of the mitigating factors in respect of each individual convict rather than a common set of reasons.
Any critique of the judgment, however, will suffer from the same infirmities inherent in pitting social conscience against individual destiny, a classic contest between the jurisprudence of outrage and the dispassionate dispensation of criminal justice. Unless it is conceded that it is difficult to blame the court for its approach in the face of a social outcry, it is not possible to confront the consequences of two factors that stand out whenever the death penalty is awarded: the apparent inconsistency in applying the ‘rarest of rare cases’ rule and the lack of restraint that the ‘collective conscience’ theory can engender.
‘Atmosphere’ and sentencing
It is not in every case involving the rape and murder of a minor that the court has sanctioned the death sentence. Similarly, courts have included or excluded bomb blasts, assassinations and incidents of communal carnage without regard to consistency. It was somewhat ironical that the ‘Nirbhaya’ judgment came a day after the Bombay High Court upheld life sentences in the Bilkis Bano case, but declined to enhance them to capital punishment, even though it involved the rape of three women and the massacre of 14 Muslims, including a child. It may be improper to compare an emblematic case of gender violence with one of many incidents that took place as part of a communal pogrom in Gujarat. However, there are similarities in the underlying pathology behind the Nirbhaya and Bilkis Bano cases . Both involved rape and murder, both were opportunistic acts, and there was absence of premeditation and provocation. However, an obvious difference is the atmosphere in which they took place, one on a peaceful night in the national capital, and another in the surcharged backdrop of the Godhra violence and its aftermath. The question may now be academic, but is ‘atmosphere’ an aggravating or a mitigating circumstance when it comes to sentencing policy?
When the Supreme Court evolved the ‘rarest of rare cases’ doctrine, the idea was to leave only a small window open for a sentence of death, life term being the norm. There is a real danger that yielding to collective clamour may widen this window and throw it open for more frequent resort to the extreme penalty. One of the likely consequences is that it may become easier to cite shock and indignation in society to justify the death penalty in a given case. Articulating the view that the case has shocked the conscience of the court and society does not require elaborate reasoning, but only an impressive choice of words, of which there are plenty, that express outrage. The question of how the judiciary will rise above the collective clamour for retributive justice will loom large in the future.
For consistency and clarity
One of the foremost requirements in death penalty jurisprudence today is the need for consistency in applying the ‘rarest of rare’ rule, and for clarity on what satisfies the collective conscience. Is a perceived sense of outrage in society the test, or is it the sheer enormity of the offence? On merits and evidence, it is difficult for anyone to argue that the gang rape on a moving bus on a wintry night in Delhi was not marked by unusual brutality and depravity, warranting severe punishment. It is equally difficult to disagree with the court that the aggravating circumstances far outweigh the mitigating factors. The locus of the problem of applying the death penalty whenever there is a sense of intense indignation in society, therefore, does not lie in the facts of the case or in the text of the judgment, but in the wider domain of criminal jurisprudence. As long as imposing death is available as a form of punishment, the moral dilemma that every judge faces is inescapable.
venkataramanan.k@thehindu.co.in
