Md. Mobashshir Sarwar and Jatan Mudgal for BeyondHeadlines
Time is ripe for our judicial fora to reign in the society and establish judicial precedent by displaying the gesture of judicial magnanimity in the Gang rape incident in the city of Delhi, gathering notoriety as the “Rape-Capital”.
During the last six decades our Constitution and administration of justice has faced many challenges and volte-faced them successfully. It responded positively to the evolving needs of our society either through judicial legislation, constitutional amendments or judicial interpretations.
In the midst of such demanding circumstances the Hon’ble Delhi High Court took cognizance of the infamous Delhi Gang rape incident. Lord Denning rightly said (an eminent English jurist) that “the truth is that some crimes are so outrageous in nature that society insist on adequate punishment because the wrong-doer deserve it, irrespectively whether it is a deterrent or not”.
Now looking at the present scenario of our society the crimes against women have become part of our culture and are unashamedly rampant across the country. They are a medium of expressing anger, and a brute show of machoism. The worst being that they are now socially acceptable in many strata of our society, Khaps being a part of them.
According to National Crime Records Bureau, in 2011 there were 2, 28,650 reported cases of crime against women, besides that 24,306 being of rape, not to mention that these remain just the reported ones. Umpteen number of times has it happened that gang rapes have been perpetrated in full public view. What deters victims from reporting many a times is the apathy shown by law enforcement agencies towards such heinous crimes with the Police majoring such ill causes.
The Government on one hand seems busy in pondering on ways to prevent such crimes, while on the other the need of hour at call remains the urgent need to punish at least those who are criminals instead of ‘potential criminals’ thereby setting a deterrent through example. In the light of above mentioned views of Lord Denning it can be concluded that wrong-doers must be punished as soon as the judicial and investigational processes can allow that to happen which must be taken up within a reasonable frame of time.
Such an action on part of the Government through various legislations would at least bring forth some respite to those unfortunately affected and cause a reasonable fear of law in the society sufficient to deter such future actions being done with intent to outrage the modesty of women.
In catena of judicial dicta where the death penalty had been imposed in similar cases, it appears, the court would not hesitate to award the Capital punishment to all accused precluding the minor accused in view of the juvenile delinquency in the much discussed Delhi Gang rape incident.
It may be recollected the case of Dhananjoy Chatttarjee versus State of West Bengal (2004) SC which was also the case of brutal rape and murder of a minor girl in which the lordship of Justice Dr. A. S. Anand while confirming the Death sentence observed:
“The savaged nature of crime had shocked our judicial conscience. The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenseless and improtected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the Society’s cry for justice. Justice demands that the courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while imposition of appropriate punishment”.
Justice Arijit Pasayat observed: “Death Sentence is imposed in the rarest of rare case. Life imprisonment is the rule and the death sentence is the exception”. It means that the Death Sentence is the law and the “Rarest of Rare Cases” is the policy. The day was there when the Court had been criticized on the ground that it interprets the actions of the court stating, that: “The Court cannot give birth to a human being and hence it can not take away the life”. On the contrary, Protagonist of the “an eye for eye” philosophy demands “death for death”. The Humanists on the other hand pester for the other extreme viz., “death in no case”. The reason why the community on the whole does not endorse the humanistic approach is thus reflected in “death sentence in no case” doctrine is not so far to seek is being based on the very humanistic edifice being constructed on the foundation of “reverence for life” principle. The society may not feel itself bound by the shackles of this doctrine.
The present case at hand of Delhi Gang Rape and the Doctors team indicated that the act was an act of a depraved mind and was most brutal and heinous in nature. Thus, it can be said that the magnitude of the crime was committed in its widest amplitude; the role played by each accused and the manner the incident took place. The consciences of an ordinary human is bound to get shocked to see the extreme brutality and disregard to human dignity in such a diabolic manner. The brutality of the act is amplified by the grotesque and revolting or, dastardly manner in which the helpless victim has been raped which was diabolic of most superlative degree in conception and cruel in execution and that all accused persons are not possessed of basic humanness and completely lack the psyche or, mind set which can be amenable for any reformation. When an innocent hapless girl of 23 years was subjected to such a barbaric treatment by all accused assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man.
It is true in a civilized society a tooth for tooth, a nail for nail or death for death is not the rule but equally true when a man becomes a beast and menance to the society not only ghastly but reflects his beast like mental attitude, he can be deprived of his life according to the procedure established by law. The crime committed by all the accused is not only shocking but it has also jeopardized the Society. The court would be failing in its duty if pro rata punishment is not awarded for a crime which had been committed not only against the Society to which the criminals and victims belong and it should respond the Society’s cry for justice. There would be failure of justice, if the court would be yielding spasmodic sentiment, unregulated benevolence and misplaced sympathy. Sympathy, even if expressed, has a reason. It is to ensure that such humane act will change the heart of the accused. The question that comes to our minds is that what change of heart will happen to men who for their fun did such an act? Sympathy can be shown to those are forced by the circumstances and to those are incapable to judge that effects of their act on the victim. The accused do not deserve any sympathy from the law and society.
The two accused (there are six accused) are left with no option but as a last resort to suggest repentance or, remorse for committing such a ghastly and sinful crime. It appears to my mind that with a view to wriggle out of the clutches of law, the two accused before the court tendered apology and insisted to be hanged. It is an attempt to stall the trial as well as win the empathy of the court. The moral turpitude of the two accused is traced to be that of cunning persons with criminal instincts.
It should not be over looked that it is not a simply a case of girl rape. It is a case where pious and sacred position of a woman has been ravished, social norms have been betrayed and social values have been impaired. The Society survives on social values and commitment by social beings to conform to such values. This strengthens the social bonds which at times are stronger than the laws of the land. But if we go through the pages of History, it can clearly be seen that never has our society, whether in Vedic times or Medieval period or be it Modern times, accepted woman in a sensible and legitimate manner. Never can we say that our historical past was glorious in context of women. So many social evils like sati, female foeticide, child marriage, etc. are not fruits of modern day act. In this context two things can be observed. Firstly, because of the active role and the popularity of media more particularly audio-video media, more and more cases of crime against women have come to light. It’s not that the rate of crimes was less in any way, but the reality was that they could not come into public view. Secondly, the victims are now ‘approachable’ to the perpetrators. This means that earlier women were within the confines of the house. Now when they move out of their house for jobs and for various other works, they become easy targets to men. It is pertinent to note here that the criminal intention was always present. The accused have, however, belligerently defied the social order. So, the possibility of reforming such people within a short period is almost impossible and is of great risk by a civilized society. Any leniency shown towards the accused, therefore, is likely to send wrong message to the public and would give an impetus to lawlessness apart from an adverse psycho-fear among the female folk.
The Crime against the women in India is rising with rapid abnormality. The time is ripe when the Courts will have to prepare themselves with appropriate measures and must realize that over liberal attitude in most cases leads to disproportionality lesser punishment viz., the nature of crime, has encouraged the incorrigible anti-social elements. The bonaza of paroles, remission, furloughs and/or en-block release on the eve of certain historical days by the Executive has failed to deliver any good, on the contrary has led the hard-core criminals to believe that the “life imprisonment” is just a temporary stay for a few years. It has to be accepted by judiciary and law makers that the policy of ‘rarest of rare cases’ is outdated and needs a fresh look. There are ever increasing cases of digital rapes and incest rapes (267 in 2011). Rape as an act is a crime against humanity and the victim as a part of society. Though unfortunate, but we all know that it is a girl who is always victimized and isolated. In most cases it happens that people try to stay away from the victim, it becomes difficult for her to get married, get a job and thus she actually dies every time she is out in the society. To bring about a lasting change in the mindset of society efforts should be made to provide a healthy adult education to the children while they are in schools. But this cannot bear fruits in short-run and besides that it will face various implementation problems. In short-run the best way is to deter the potential criminals by way of harsh punishment i.e., capital punishment rather than sympathy. The abnormal increase in crime against the women is one of the root causes in creating chaotic and fearful social environment, especially for the down trodden and middle class families who may fall victim to the lecherous eyes of the criminals. It is high time that deterrent punitive measures are taken failing which our society will be plagued with this problem and we will land ourselves in a situation of no return.
(This Article is written by MD. MOBASHSHIR SARWAR, Student of B.A.LL.B-Ist Year, Law College Dehradun, HNB Garhwal Central University, U.K. and JATAN MUDGAL, Student of B.A.LL.B-Ist Year, Government Law College Mumbai, Mumbai)