A British editor’s observation in the 1970s that he had come to regard the law courts not as a cathedral but rather as a casino rings true if applied to the case of Nirbhaya’s four rapists. Justice here has been crying out for justice for much too long. The roulette wheel of their destiny has twice eluded the hangman’s noose, and the sheer nonchalance with which the lawyer of the ravishers mocked the legal process can only leave us gritting our teeth.
It has been nearly seven years since the Fast Track Court (FTC) awarded the death penalty to the rapists of the 23-year-old para medical student who was brutalized inside a moving bus on 16 December 2012. The human wolves were sentenced by the FTC on 10 September 2013, and their conviction upheld by the Delhi High Court on 13 March 2014. Then commenced the merry-go-round of appeals, reviews, curative petitions, and mercy pleas which seemed to have finally spun out of options by January 2020. The hanging was fixed for 22 January. Then postponed to 1 February only to be pushed back further, this time indefinitely.
Blame the unpardonable delay on the chinks in the system which neither Parliament nor the Supreme Court has seriously sought to fill. Even the observations of the Delhi HC that the system had grown “cancerous” and was “capable to being exploited” with impunity did not deter the additional sessions judge, Dharmendra Rana, to dishonor the hanging fixed for 2 February. Cited in his order was the lofty norm in turgid prose: “The courts of this country cannot afford to adversely discriminate against any convict, including death row convicts, in pursuit of his legal remedies by turning a Nelson’s eye towards him.” But was it not His Lordship who turned a Nelson’s eye to the spirit of the law in trying to preserve its letter?
The name of the game is “due process” under whose over accommodative umbrella the flimsiest fissure is enough to make an ass of the law. There is, of course, nothing new in the notion that the law is indeed an ass (read donkey), an animal known for its obstinacy. The metaphor gained currency after it was expressed by one of Charles Dickens’ famous characters in his novel Oliver Twist. But what worth is a process which the court has allowed to remain incomplete right under its nose? Should not the courts have compelled the rapists to exhaust all their legal remedies with alacrity soon after both the high court and the apex court confirmed the death penalty. There was an excruciatingly long gap of three years between the two affirmations.
Ideally, the prison authorities ought to have bluntly directed the rapists through their advocates to jointly table the mercy pleas of the four after the SC order dated 5 May 2017 confirming the capital punishment observed that the “rarest of rare” crime had generated a “tsunami of shock”. Even the HC had asked both the Delhi government and the prison administration to put their houses in order since people were fast losing trust in the system. Instead the advocates willfully adopted the time-tested strategy of delaying the execution with separate petitions and pleas. Not for nothing is it said that lawyers cannot be made honest by an act of legislature when it is their conscience that needs repair and rehaul. Which is why it is said that a lawyer with conscience is a rarity.
As things stand two of the four (Mukesh Singh and Vinay Sharma) have exhausted all their legal options, be it review, curative, or mercy plea. Mukesh even challenged the rejection of the mercy plea to no avail. His will to live seems to be the keenest. While Akshay Thakur has still to seek the President’s mercy, Pawan Gupta has all his options which he intends to exercise if his lawyer is to be believed.
Technically Mukesh and Vinay can be hanged without further ado. The defense that since all four were convicted together they cannot die separately rings hollow. Had the same logic been applied to the preferment of their mercy petitions, none of the four would be alive today.
The Union Home Ministry’s plea that changes be made in mercy proceedings has come a trifle too late. Though the SC is hearing the case, the impression that the judicial process has already been considerably impaired by completely ignoring the sentiments of the victim’s family cannot be shaken off. The need to draw lines on the right to life and liberty under Article 21, howsoever rarely, is something which has hitherto never been broached much less discussed for fear of offending the liberal brigade and their campaign against capital punishment. Most of the SC judges are also inclined to think the same way.
Given the flaws and failings of our legal system, Nirbhaya’s mother, Asha Devi, can hardly be blamed for thinking that the court’s orders in the country were honored more in the breach than in their observance. This is the general perception.
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