Do the December 2012 gangrape convicts really deserve the death penalty?

If the December 2012 Delhi gang-rape roiled the nation like no other case and even led to legal reforms, it was surely due to the brutality of the violence suffered by the victim, who has widely come to be known as Nirbhaya. What has not however been judicially established is the identity of the one out of the six accused persons on the bus who had actually inflicted the fatal injuries with an iron rod.

This gap in the narrative has been flagged by the Supreme Court’s amicus curiae, senior advocate Raju Ramachandran, while providing an independent appraisal of the death sentence pronounced by the lower courts on the four convicted persons in the 2012 Delhi rape case.

In his written submissions earlier this month, Ramachandran raised a host of procedural and substantive issues questioning the order of sentencing by the trial court in 2013 and the confirmation of the death penalty by the Delhi high court in 2014.

One of the substantive issues is that in the sentencing process, those two courts did not take into account this mitigating circumstance in favour of all the convicted persons: “that there was no attribution of individual role with respect to the use of the iron rod”.

Objecting to the idea of sentencing the convicted persons in a “collective” manner, Ramachandran said: “It may be pertinent to note that the use of the iron rod was a crucial consideration in convicting the accused under section 302 (for murder) and also in determining the brutality of the crime.” He even cited Supreme Court precedents rejecting the death penalty “for lack of attribution of specific roles”.

Exception – not the norm

Significantly, this is the third high-profile case in which Ramachandran came out in the apex court against the death penalty. The earlier ones were about the hanging of Ajmal Kasab for 26/11 and Yakub Memon for Bombay blasts. Ramachandran’s stand in the latest case is also in tune with the reservations to the death penalty expressed by scholars and women’s groups before the Justice JS Verma Committee, which had been set up in the aftermath of the 2012 Delhi rape case to tighten the provisions relating to sexual crimes.

The most telling precedent cited by Ramachandran to buttress his arguments against the death penalty in the case is the 1953 Supreme Court verdict in Dalip Singh vs State of Punjab. This belongs to the era when the courts, governed by the criminal law of colonial vintage, were justified in awarding death penalties as a matter of course. For the 1898 Code of Criminal Procedure required that if the court refrained from awarding death for an offence punishable with death, it would have to give reasons why the death sentence was not passed. It was only subsequent to the 1953 Dalip Singh verdict that Parliament reversed the law to stipulate that for offences punishable with death, the court shall give special reasons for awarding the death penalty.

Yet, while deciding the Dalip Singh case prior to the liberalisation of the criminal law, the Supreme Court held that the failure of the lower courts to ascribe an individual role to the accused was a reason for setting aside the death penalty. This, the amicus curiae in the 2012 Delhi rape case, has interpreted to mean that “surely, under the new code when life imprisonment is the norm and death the exception – the lack of individual role must be a major mitigating circumstance”.

Planned and premeditated?

On another substantive issue, Ramachandran said that there was no evidence on record “to demonstrate that the rape and murder of the victim was planned and premeditated.” According to him, the testimonies of neither her male friend who was with the young woman on the fateful bus journey nor the previous male victim who had been robbed and thrown out by the same accused persons suggest any premeditation. “The accused never knew the victim or had any occasion to believe that she would be present at the relevant spot on the fateful day,” Ramachandran added.

In the written submissions that otherwise steered clear of the merits of the conviction of the four accused persons, this was as close as Ramachandran could get to challenging the finding of conspiracy in the case. So does his critique of the death sentence in the 2012 Delhi case necessarily mean that the four convicted persons should have instead been awarded a life sentence, subject to the usual remission after a term of 14 years? For all his opposition to the death penalty, Ramachandran conceded that the prospect of a 14-year incarceration for the guilty in the 2012 Delhi rape case might be inadequate. He pointed therefore to the third option for sentencing created by the Supreme Court in 2008, to bridge the gap between the death penalty and a 14-year imprisonment. It’s the option under which the Supreme Court or the high court fixes a term greater than 14 years or even specifies that the imprisonment would be for the remainder of the life of the convicted person.

Some of the insiders connected with the prosecution side admitted that although two consecutive courts had upheld the conspiracy charge, there was no evidence that the crime was premeditated. Since the victim’s friend had been pinned down in the front portion of the bus, he could not see who exactly had assaulted her with the iron rod in the rear portion. If the conspiracy provision was still invoked, it was because in the absence of any eyewitness account attributing specific roles, that was the strategy adopted by the prosecution to establish liability for the murder. As a corollary, all the conspirators were rendered liable for the actions of each other, thereby relieving the prosecution of the burden of attributing specific roles. It remains to be seen whether the Supreme Court will uphold this odd proposition of a conspiracy having been executed without any evidence being adduced of premeditation.

On the other hand, even if the Supreme Court does not accept its amicus curiae’s submissions, the questions raised by them may serve as an opportunity to sensitise people to the exacting standards that a death sentence has to meet. For even in a case as egregious as the 2012 Delhi gang-rape, there could well be, from an independent perspective, mitigating circumstances which require the convicted persons to be spared the noose.

Manoj Mitta is the author of The Fiction of Fact-Finding: Modi and Godhra.