The subject of rape has since become a matter of national importance; often there are protests with demands for the perpetrators to be hanged. While public sentiment remains unchanged, it is important to realise that judicial processes demand dispassionate fairness that gives due regard to substantive requirements of sentencing. Failure to meet these demands raises serious concerns about fair trial rights of the accused, which is as important during sentencing as it is at conviction.
Legal background –
- A Constitution Bench of the Supreme Court in Bachan Singh v. State of Punjab (1980) laid down the sentencing framework in capital cases, requiring sentencing courts to consider the aggravating and mitigating circumstances of the offence and the offender when deciding the question of punishment.
- Courts also have to discharge the burden of meaningfully considering whether the alternative option of life imprisonment has been unquestionably foreclosed.
- The death sentence can only be imposed in exceptional cases involving extreme culpability, and such exceptionalism cannot solely be rooted in the brutality of the crime.
Nirbhaya case (2012) –
- The sentencing orders of both the trial court and the High Court not only summarily dismissed mitigating factors on the basis of precedents but also went on to explain why any punishment lesser than the death penalty would not meet the demands of “justice”.
- The trial court commented upon the “extreme mental perversion of the accused”, which was “not worthy of human condonation” and also reiterated elements of the crime to highlight their “beastly behaviour”.
- The High Court elaborately discussed the exceptional nature of this case given the brutality involved to conclude that expecting society to demand anything other than the death penalty for the convicts would be “unnatural and ludicrous”.
- A plain reading of the sentencing orders makes it very clear that the public clamour for “hanging the rapists” made its way into the judicial decision-making.
- In the Supreme Court, the evidence on mitigation that was presented before the Court in the form of affidavits included material on the socio-economic circumstances of the convicts, their family background and some information on their previous occupation. However, the Supreme Court dismissed these circumstances as irrelevant, given the circumstances of the crime in the case.
Criticism of Supreme Court judgement –
- Confirming the death sentences for all, two concurring opinions remarked that the crime was bound to “shock the collective conscience” and any punishment lesser than the death penalty would “shake the confidence of the public” in the criminal justice system.
- After an unreasoned dismissal of individual circumstances of the convicts, the Supreme Court also failed to sufficiently answer why life imprisonment was unquestionably foreclosed. The Court failed to discharge any of these burdens.
- At its core, imposition of death sentence to satisfy “collective conscience” is vengeance couched as retributive justice, captured by the phrase “an eye for an eye”.
- Modern penal systems consider this an outmoded concept, and even Bachan Singh had observed that retributive justice means punishment based on blameworthiness of the convict, and cannot be equated to “vindictiveness”. The sentencing requirements under the law do not have a place for bloodlust.
While the public has very little patience to appreciate such nuances of the law, courts are duty-bound to maintain a high degree of fidelity to these processes. This should hold true especially in a case such as this which has seen loud and repeated calls for “hanging the rapists”.
Source – The Hindu
QUESTION – The death penalty in rarest of rare cases must be weighed upon the scale of judicial wisdom and not public morality alone. Examine the legality of the argument in terms of substantive justice.