Speedy Capital Punishment For Rapists Must Be Ensured

        “The deteriorating situation of women safety in the entire country, especially in Uttar Pradesh, is a cause of grave concern. It is shocking that just within six months of the reporting of the case, the accused was allowed to come out on bail. The girl has suffered tremendously for raising her voice against a brutal crime inflicted on her. The root cause for crimes against women is the complete absence of fear of certain and swift punishment in the minds of the criminals.”

–        Delhi Commission for Women Chief Swati Maliwal who is on indefinite hunger strike demanding speedy capital punishment for rapists.

Maliwal very rightly demands capital punishment for rapists within six months of their conviction. I will certainly not term capital punishment for rapists as “revenge” but will rather term it as “justice” for which the victim and her family runs from pillar to post and faces all sorts of inconveniences, threats and what not! But it must be uniformly imposed on all rapists and it is not once in 15 years that a poor rapist is hanged on circumstantial evidence alone as he was so poor that his petition was drafted by prisoners of Tihar jail as was pointed out by senior Supreme Court advocate Colin Gonsalves while in similar other cases the accused are not hanged just because they are affluent and are able to hire a battery of “eminent and experienced lawyers” who can argue most forcefully on their behalf! This injustice must stop! Why can’t thousands and thousands of rapists be hanged just like Dhananjoy Chatterjee was hanged in 2004? Why this selective hanging of rapists? Before Dhananjoy, it was Ranga and Birla who were hanged in 1982 as there was definite proof against them and there can be no sympathy for such rapists cum murderers but what about the other rapists? Why are they spared? Is this justice? Is this equality? What sort of equality is this?

It is being written in newspapers that the Union Home Ministry has recommended rejection of mercy plea of one of the convicts in the December 2012 Nirbhaya gangrape case to President Ram Nath Kovind. The President’s Secretariat is likely to decide on the mercy petition before December 16, said people aware of the matter. Vinay Sharma who is one of the convicts facing death sentence for the rape and murder of a 23-year-old paramedic student, had filed the mercy petition before the President. As per the law, the death penalty of other co-accused cannot be executed unless the government takes a decision on Sharma’s plea. Three others – Pawan Gupta, Akshay Thakur and Mukesh Singh – did not file any mercy plea while the fifth accused Ram Singh had allegedly committed suicide in Tihar jail in March 2013. Officials said Sharma’s mercy plea has been pending for more than four months.

The moot question is: Why does it take so long to decide on mercy petition? Why can’t mercy petition be decided in just few hours or few days or few weeks? Why does it take decades as we saw in case of killers of former PM Rajiv Gandhi in which case even in decades it was not decided due to which the killers get the benefit?

Bluntly put:  Why so much of inordinate and unacceptable delay in deciding mercy petition? Why can’t a time frame be fixed in this regard? Why should the parents and relatives of victim keep waiting indefinitely for mercy petition to be decided?

Does it not make a complete mockery of our entire criminal justice system? Why no attention is paid to this all-important issue by our law makers? Should we be proud of it?

Why is it that in Nirbhaya’s case it was only after the case of gangrape and murder of a 26-year-old veterinary doctor in Hyderabad that the Delhi government expedited his appeal? Why earlier the Delhi government was just sitting over the appeal? Why Delhi government did not took the all-important decision of deciding mercy petition swiftly?

Whose interest was this inordinate delay serving? Could it not have been decided in time? It merits no description as we all know the ostensible answer.

Why it took so long for Delhi’s Lieutenant Governor Anil Baijal to send the file rejecting the mercy plea to the Home Ministry just recently? Why only interest of accused is safeguarded while deciding mercy petition and that of victim is blatantly, brutely and brazenly disregarded? Should we be proud of it? Why for decades the mercy petition of killers of former PM late Rajiv Gandhi was not decided? What image does this project of India in front of the world? That India does not have the courage to punish the killers of its own former PM late Rajiv Gandhi!

Why can’t even President decide on mercy petition as in case of Nirbhaya within few days? Why Delhi Lt Governor took an agonizingly long time of many months to decide on mercy petition? Why does it take so long to be decided?

Why the mental agony suffered by parents and victims families due to this inordinate delay in deciding mercy petition not taken into account? Why is mercy petition not abolished for heinous crimes like rape and terror cases? Why at least some time frame not fixed?

It cannot be denied that the President himself just recently while voicing sharply his serious concern on alarming rise in cases of crime against women had minced just no words in saying plainly that, “Women’s safety is a very serious issue. Incidents of demonic attacks on girls shake the conscience of the country. It is the responsibility of every parent to instill among boys the feeling of respect for women.”

I have the highest respect for President and I fully agree with what he said about women’s safety being a serious issue and also on instilling in boys the feeling of respect for women. But I humbly beg to differ with him on just one aspect. Just recently while speaking on cases where minor girls are raped, President Ram Nath Kovind had said that, “In this context, several things are coming up. Such convicts have been given the right of mercy petition by the Constitution. I have said that there should be reconsideration on this…In cases under Pocso (Protection of Children from Sexual Offences) Act, they be deprived of the right of mercy petition. They do not need any such right.”

With great pain I have to ask: Why only minor girls? Why those who rape even major women not be deprived of the right to mercy petition? Why should there be any discrimination of any kind between minor and major?

It cannot be overstated that a rape is a rape which under no circumstances can be ever justified! Those who indulge in it certainly deserve no mercy! Whether the victim is minor or major should just no matter at all! With full humility I must say that the President must reconsider his stand on this!

The Vice President of India M Venkaiah Naidu very rightly said that those minors who know how to rape should be punished just like others. They should not be allowed to escape easily which sets a very wrong precedent as we see most unfortunately in our country! Why should the minor not be at least sentenced to life who plays with the life of the women in the most brutal manner as we saw in Nirbhaya’s case that it was the minor boy who perpetrated the maximum brutality on Nirbhaya? Why should they be allowed to come out of reform home within two or three years as we see most unfortunately right now?

V Narayansamy who is Puducherry Chief Minister while hailing the killing of all 4 accused of gang rape and murder of Hyderabad’s 26-year-old veterinary doctor said, “This punishment (encounter killing) must be accepted as punishment by the Lord. Criminals must learn a lesson from this incident.” He is not alone in feeling so. There is a national rejoice over the killing of these 4 rape accused which is something unprecedented and it is for first time in my life that I have seen so even though some have sounded caution and restraint on this as this would only encourage “extrajudicial killings”!

Former Police Commissioner of Mumbai MN Singh wondered where the rule of law was. He minced no words in saying that, “This incident and the subsequent encounter deaths of the accused is a sad commentary on the criminal justice delivery system in India. People seem to have lost faith in the system because it doesn’t seem to be delivering justice and people want those involved in such heinous crimes to be punished expeditiously and sternly, which is not happening.”

On the 2012 Nirbhaya gangrape case, MN Singh said that, “The case is seven years old and has been lost in procedures. It is frustrating that people are celebrating when the accused are killed in encounters. They feel it brings justice to the system and deters criminals. People are losing faith because the system is so procedure-oriented and so prone to delay it doesn’t seem to be functional.”

How can the Supreme Court and our lawmakers take all this lying down? Why should a definite time frame not be fixed for deciding rape cases, gangrape cases and terror cases not just in trial court but also in High Court and Supreme Court too? Similarly why should a definite time frame not be fixed for deciding review petition and mercy petition till they are not abolished altogether?

Former Director General of Police Prakash Singh while lamenting at the Hyderabad encounter said that, “It just goes to show people’s eroding faith in the country’s criminal justice system. Look at the Nirbhaya case, it’s been seven years and despite the fast track court and media hype, the system has not hanged them (the accused) because the mercy petition is pending.”

To put it simple and straight: Does this not make a complete mockery of our criminal justice system and severely erodes the faith of people even in Supreme Court? Why is mercy petition not decided at the earliest? If mercy petition can’t be abolished as many human rights lawyers would argue then why can’t a definite time frame be fixed for deciding it? Certainly no one will object to this! Only adequate political will is needed as was pointed out by the Vice President Venkaiah Naidu!

We just cannot overlook what Julio Ribeiro who is former Mumbai Police Commissioner and Punjab DGP said while condemning the encounter that, “The judicial process system is not working. That is why these short-cuts are adopted under pressure from the public and politicians.” Ribeiro is a man of vast experience in police service and so what he says not only deserves a food for thought but the Supreme Court must also seriously introspect on this and try to complete such serious criminal cases of rape and gangrape well in time!

It must also be pointed out here that SS Virk who served as DGP of Maharashtra and Punjab said quite bluntly and most rightly that, “In the Nirbhaya case, strong legal action was taken against the accused. They were all sentenced to death but have not been hanged so far. The legal system loses its impact in such cases. When our criminal justice system becomes weak and ineffective, the public expects strong action. Then even if the action is not strictly legal, people welcome it. We have to fast-track our system, make it more effective.”

Senior Congress leader Sanjay Nirupam said, “Encounter killing of all 4 accused of # Hydrabad Rape-Case may seem like unlawful but it was the need of the hour. I congratulate # hydrabad police to instill sense of security in the women of our country. # Human Rights activists may not agree but a strong message had to be put out.” However, I personally very strongly feel that if they had been made to face trial in court of law and then sent to gallows, the happiness would have been much more. But the excruciatingly glacial pace with which our judicial system functions is certainly a matter of deepest concern for all of us!

It cannot be overlooked that just recently even the Union Law Minister Ravi Shankar Prasad on the solemn occasion of inauguration of a new building of the Rajasthan High Court in Jodhpur made a fervent appeal saying that, “I would urge the CJI and other senior judge that now there must be a mechanism to monitor the disposal of these cases so that India’s stature as a proud country governed by rule of law must be restored at the earliest.” Prasad also assured government funding for it which must be appreciated!

No doubt, Ravi Shankar Prasad has a point when he says that, “In the law relating to violence against women, we have already laid down capital punishment and other severe punishment including completion of trial in two months’ time.” But it also cannot be denied that capital punishment has not been made mandatory in our rape laws even for repeated offenders nor for gang rape on women under twelve years of age. All the discretion bombs” in the form of “may” and providing alternative of “life” in our rape laws need to be defused promptly if we really want to send a strong and stern message to all rapists that any misadventure by them would culminate in their being lined up for being hanged! Just cosmetic steps meant for public consumption won’t do! The fear of “swift and strict” punishment need to be ingrained in rapists which can be possible only if our rape laws are amended drastically so as to close all escape routes for rapists and gang rapists!

No doubt, Ravi Shankar has a point when he says there were 704 fast track courts for such offences and others. But it also cannot be denied that 15 states and Union Territories have failed to set up fast-track special courts (FTSC) for speedy rape trials, ignoring repeated reminders from the Centre. These states have not responded to the Centre’s proposal to start FTSCs to fast-track the trial of sexual assault cases, including those registered under the Protection of Children from Sexual Offences (Pocso) Act. It is quite glaring to note that both Telangana and Uttar Pradesh where rape incidents have sparked huge public outrage did not take adequate steps to designate special courts. Telangana constituted its first FTC on December 4 after the rape and murder of the 26-year-old veterinary doctor in Hyderabad. Earlier reminders were sent to the states on five occasions – September 5, October 15, October 22, November 5 and November 20. This is what is most shocking and reflects the callous attitude of the states on such an important issue. This alone explains why senior Supreme Court advocate VV Girti, who assisted the top court in the case resulting in the November order relating to fast track courts for Pocso cases, said the states had abdicated their duty by not setting up FTSCs in a time-bound manner. Giri further added that, “One needs a political will to set up FTSCs and not drag the matter. Besides, the state must also appoint a special prosecutor to conduct the trial on behalf of the prosecuting agency. The more the case gets prolonged, chances of tampering by the accused are also high.”

Smriti Irani who is Union Minister for Women and Children Development says that, “There are talks for enacting a provision of stricter punishment for rapists. The government has already come out with the provision of death penalty. Nothing can be more severe than handing capital punishment (for rapists).” She must read the rape laws enacted in IPC even after the 2018 amendments carefully. “Escape routes” in the form of “discretion bombs” are there not just for child rapists but even for repeated offenders. All these “escape routes’ must be fully closed and “discretion bombs” must be promptly defused by making death penalty mandatory with no option of life term! Only then will rapists think thousand times before even attempting to commit rape!

However, it is good to learn from Smriti Irani that funds are being utilized for setting up 1023 fast track courts in the country for speedy disposal of rape cases. It is also good to learn from her that a national database of more than 7 lakh offenders found guilty of rape is readied to keep an eye on them. I would rather say that, “Why should all these 7 lakh offenders found guilty of rape not be hanged? Why hang just one poor Dhanajoy Chatterjee in 15 years?

It cannot be denied that Smriti Rani rightly said that society should come forward to provide legal aid to rape survivors. She also rightly said that respect for women should begin from families as they are the centres for “nurturing moral values”. Strict laws alone even though imperative are not enough to check crimes against women! It merits no reiteration that the whole attitude of society must change hugely towards women and girl child and only then can we hope that crime against women will subside to a great extent in coming years!

Sanjeev Sirohi

Why No Death Penalty For Gang Rape In India?

“Brother, please save me, I don’t want to die. I want to live. Those who have done this to me, I want to see them getting a death sentence.”

These were the most emotional last words of Unnao gang rape victim who was brutally gang raped in March and when police allowed those gang rapists to be released on bail then they decided to burn her while she was on her way to attend the court hearing pertaining to this gang rape case as they were hundred percent convinced that the judiciary of India does not hang gang rapists and it is only once in 15 years that a poor Dhananjoy Chatterjee who could not afford fees to hire lawyers and whose petition was drafted by Tihar jail prisoners is hanged and so the chances of very easily escaping from strict punishment are quite bright! Every Indian will get moved to read what this Unnao rape victim said before dying! What was her fault? That she was a women?

Why are rapists released on bail for some time as we saw in case of Unnao gang rape case? Why no security is provided to the victim who was raped? Why the life and safety of victim is not cared for by police as we saw most unfortunately in Unnao which resulted in accused burning her 90% which led to her death later? Why should the strictest action not be taken against all those police cops who ensured that the accused were out on bail and who ensured that gang rape victim got no security?

Should we be proud of our legal justice system which operates at an excruciatingly glacial pace and makes sure that those who commit rape and gangrape coupled with murdering the rape victim by either setting them ablaze as has nowadays become the latest fashion or in some other manner in some cases? All the Judges of Supreme Court, ex Judges, ex-CJIs, legal giants like K Parasaran, Soli J Sorabjee, Kapil Sibal, Harish Salve, Mukul Rohatgi, etc must ponder over it and think of ways by which the waning public faith in our judicial system is restored! If the public faith is destroyed then people will start taking law in their own hands to deliver “instant justice” which can never be good for our country!

It is most shocking that the incidents of not just rape but even gang rape followed by setting ablaze the victim is increasing very rapidly in our country as we saw most recently in Unnao, Hyderabad and many other cities but still we don’t get to read gang hanging! Are gang rapists immune from death penalty? Why is it that under our penal laws there is no mandatory death penalty for gang rape?

Why is it that under our penal laws there is no mandatory life imprisonment also for gang rape as stipulated in Section 376D of the IPC? Why the punishment for gang rape as stipulated in Section 376D of the IPC is “shall not be less than twenty years but which may extend to life”? Why this “discretion bomb” in form of “may” is inserted in Section 376D dealing with gang rape?

Should this “discretion bomb” not be defused promptly by removing it and providing for “mandatory death penalty” considering the irrefutable fact that gang rape incidents are increasing alarmingly in our country followed by even gang burning of gang rape victims as we saw most recently in Unnao and earlier in Hyderabad with a 26-year-old veterinary doctor? Can gang rape be justified under any circumstances? Why then do we see that there is no mandatory death penalty for such offences?

Why different punishment prescribed for gang rape on woman under 16 years of age as prescribed in Section 376DA and that on woman under 12 years of age as prescribed under Section 376DB of IPC? Why only life imprisonment under Section 376DA and not death? Why option of life and death in Section 376DB of IPC? Why not mandatory death penalty?

Why even for repeated offenders there is no mandatory death penalty and why the option of life term is added simultaneously in Section 376E of IPC?  All these escape routes must be closed now forever so that rapists are never able to take advantage of the loopholes in our legal system anymore now! But are our politicians, lawmakers and Centre ready to do this or will they be happy with just face saving exercise and lip service? Only time will tell!

Why is it that about 15 to 16 years ago a poor rapist named Dhananjoy Chatterjee was hanged for rape-cum-murder of a Class XI girl in 2004 and that too on circumstantial evidence alone but no gang rapists are hanged ever? How many times have gang rapists been hanged in our country? Why are they not hanged?

Why gang rapists who even murder their victim as we saw in Nirbhaya case are not hanged till now? Should we keep feeling proud that just one poor Dhananjoy Chatterjee whose petition was drafted by prisoners of Tihar jail as was pointed out by senior Supreme Court advocate Colin Gonsalves was hanged about 15 years back in 2004? Should we not feel ashamed that many thousands of rapists cum killers escape death penalty by exploiting the legal loopholes in their favour?

Should we feel proud that since then not a single rapist has been hanged? Should we feel proud that even though thousands and thousands of rape incidents keep happening all across our country but yet we don’t see any hanging since 2004 when Dhananjoy was last hanged? Should our judiciary, lawmakers, Parliament and Centre feel very proud on this?

Why just recently we saw how people threw flowers on those policemen in Hyderabad who killed those 4 gang rapists when they attacked them as is being alleged and people started celebrating and many politicians started hailing it? Why is it that people are losing faith in the ability of our judiciary to deliver justice in time? Is it not a matter of utmost concern for all of us that encounter killings is being glorified as people believe that the legal system has been designed in such a manner that it ensures that rapists and gang rapists are not hanged for many decades?

Why is it that Arvind Kejriwal who is Chief Minister of Delhi while expressing concern over people’s loss of faith in the criminal justice system  openly says that, “People across the country are agitated over reports of horrible rape and murder incidents happening across the country that have come to light of late – whether it is Hyderabad or Unnao [where a rape victim was burnt earlier this week]. That’s a reason why people are expressing happiness and satisfaction over the police encounter in Hyderabad?” Why Kejriwal further says that, “It is also something to be worried about, the way people have lost their faith in the criminal justice system. This demands introspection and all governments must come forward and work together strengthening the criminal justice system and investigating agencies?” We all must seriously introspect on this!

Why is it that even after the killers of Nirbhaya who had been convicted by the Supreme Court and even after five years of death penalty being convicted by the Delhi High Court have not been hanged top death till now? Why their mercy petition keeps hanging? Is this the real beauty of our judicial system for which we should feel proud?

Why even Supreme Court does not say anything on it? Why even in terror cases like the killing of former PM late Rajiv Gandhi, killing of former Punjab Chief Minister Beant Singh, mercy petition keeps pending for decades? Should we be proud of this and justify it in the name of “due process”?

The Vice President M Venkaiah Naidu very rightly said that,  “What happens even after punishment is given to convicts. We all are witness… appeal, mercy (petition)… can anybody think of having mercy on such people? This kind of violation of dignity of women cannot go on unchallenged. What is required is not a new bill; what is required is political will, administrative skill and then change of mindset and then go for the kill of the social evil.” He also rightly said that minors who know how to rape should not be given any benefit and must be punished just like others! Rightly so!

Why should a definite time not be set for completing rape cases? Why should a definite time not be set for deciding rape cases in lower courts, High Court as well as the Supreme Court also? Why should review petition not be abolished or at least time limit set for deciding it?

Why should mercy petition for heinous crimes like gang rapes and terror cases not be abolished or at least a time limit be set up for deciding it? Why Centre repeatedly ignores such demand made by prominent persons in this regard? Whose interest is served in doing so? Should we be proud of it? Why is it that it takes decades or many years to decide a mercy petition? Why can’t it be decided within few days as pointed out by former Attorney General Soli J Sorabjee?

It is good to note that even our President Ram Nath Kovind rightly pointed out that incidents of demonic attacks on women have shaken the conscience of the country. He rightly said that women safety is a very serious issue and a lot of work has been done on this but much remains to be done. He also advocated that those convicted under the POCSO Act should be deprived of their right to mercy petition as they do not need any such right. Here I would beg to differ with the President most humbly and add that there should be no discrimination of POCSO and others and all the rapists and all the terrorists deserve no mercy petition under any circumstances and even if it is still not abolished it must be decided within a short span of time say a few days or weeks and not in many decades which only gives a potential tool to our adversaries to take potshots at the manner in which anyone can get away even after killing the former PM of India as we saw in case of late Rajiv Gandhi where mercy petition was not decided even after decades!

Why can’t strict and speedy justice be provided to people? Why should the 45% of lawmakers who have been elected to Parliament and who are facing themselves serious charges of rape and murder not be debarred permanently from entering politics until their name is cleared of all charges by the top court itself? Why no law has been enacted in this regard?

Why do we expect that such lawmakers who are themselves facing rape charges will support laws that mandates compulsory death penalty for all rape and terror cases? Are we not foolish? What they will favour is that just a single rapist like the poor Dhananjoy Chatterjee is hanged on the basis of circumstantial evidence alone once in 15 years and no rapists or gang rapists are hanged all these years even after they set the victim ablaze!

They will advise us that law will take its own course! They will advise us to be patient and have faith in India’s judicial system! It is high time and now the Supreme Court too must speak out most strongly against all the inadequacies in our criminal justice system due to which people’s faith in it is getting steadily dwindled as is being pointed out repeatedly in different newschannels, different newspapers and different magazines which is certainly not a healthy sign for a democratic country like India! Parliament too must seriously debate on it and should give this most sensitive issue of woman’s safety and of according nothing but death penalty to those perpetrate the most horrifying crime against women  the topmost priority instead of just debating trivial issues like that of onion or tomato or radish! Let’s hope so!

Sanjeev Sirohi