Although the collective conscience of three subordinate judges were so shocked that they awarded the death sentence to a drug addict who brutally raped and murdered a three-month-old infant on April 20, 2018, a three-judge bench of the Supreme Court commuted it to life in jail. Never mind the ordinance amending the Protection of Children from Sexual Offenders Act (POCSO) which allowed the death sentence for such heinous crimes. That was just a cosmetic gimmick.
And never mind the fact that the Thomson Reuters Foundation ranked India as the most dangerous country for women, edging out Syria and Afghanistan for the top post because the Indian government allegedly did very little after the brutal rape and murder of Jyoti Singh or Nirbhaya in 2012. Now, the purpose of amending POCSO has been defeated by judicial interpretation.
The Supreme Court and 24 high courts have to uphold the legislative intention and policy but in several cases of men raping minor girls, the top court has protected the rights of the rapists rather than show sympathy for the victims who have very little rights under the law. After they are raped and burnt to death, they will remain forgotten forever.
The dastardly rape of the 3-month-infant in April 2018 so outraged Indore residents that they thrashed the brute outside the court after the verdict. The state bar council also asked its lawyers not to defend Navin Gadge, who was sentenced to death. But all this did not weigh with the Supreme Court judges who felt the death sentence was not warranted although the latest POCSO amendment allows death for such rapists. And so, another brute of a rapist has got a reprieve, thanks to the apex court.
The reasoning given by the Madhya Pradesh high court was not enough to rouse the conscience of a three-judge bench comprising CJI Ranjan Gogoi, Justices S Andul Nazeer and Sanjiv Khanna. The Madhya Pradesh high court stated the rape of a infant was a “monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of the society and such a crime is aggravated by the manner in which it has been committed.
It was not committed by accused under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed and rehabilitated. The act of the appellant / accused meets the test of “rarest of the rare case”.
The convict had abducted the infant in the wee hours of April 20, 2018 while she was fast asleep next to her mother. He had earlier fought with the infant’s grandmother for breaking his liquor bottle after he tried to force the old woman to consume liquor, perhaps with evil intentions.
When she refused to pay him for the broken bottle, he apparently planned his revenge by abducting her, raping her and brutally smashing her head. The crime got wide publicity which forced the trial court to pronounce the sentence within less than two months. But rather than being appreciated, the trial court’s efficiency got flak.
The point here is that India has not abolished the death penalty like some European countries which is why terrorists have been hung to death. But child rapists are as evil as terrorists and it is surprising that the same bench of the Supreme Court commuted the death sentence of another rapist to life in jail on the ground that he could be reformed.
In the second case, in January, 2019, the Jabalpur bench of the Madhya Pradesh high court had confirmed the death sentence of Rabbu alias Sarvesh under various provisions of the POCSO Act. The prosecution case was the convict with a juvenile accomplice, brutally gangraped a 16-year-old girl who was studying for her SSC exam at home alone. He entered her house, raped and strangulated her with her underwear and set her on fire.
In February 2019, the Supreme Court again commuted to life term the death sentence awarded to one Jagdish for killing his wife and five children in cold blood in April 2009. The reason? “Unexplained delay” of four years by the Madhya Pradesh government in forwarding the mercy petition of the convict to the Union home ministry.
The apex court said there was a delay of almost five years in deciding the mercy petition as the state authorities did not send it to the home ministry for four years. A bench headed by Justice N V Ramana said that convict Jagdish had filed a mercy petition on October 13, 2009, but his plea was forwarded to the Union home ministry on October 15, 2013.
“The mercy petition is the last hope of a person on death row. Every dawn will give rise to a new hope that his mercy petition may be accepted. By night fall this hope also dies,” the bench, also comprising Justices Deepak Gupta and Indira Banerjee said.
“Keeping in view that the petitioner has been incarcerated for almost 14 years, we are of the view that regardless of the brutal nature of the crime, this is not a fit case where death sentence should be executed and we, accordingly, commute the death sentence to that of life,” the apex court said.
The dictum that the death penalty is awarded in the rarest of rare cases to heinous criminals without any hope of reform was laid down in Bachchan Singh’s case in 1980 when the Supreme Court dissected the constitutionality of the death sentence after studying voluminous reports of the British and Indian Law Commissions apart from the practice of other countries.
The apex court laid down that the high courts were given wide leeway to pronounce a life term or a death sentence in heinous crimes such as dacoity where murder has been committed, brutal murders without any hope of reforming the criminal. And so our judiciary continues to indulge in academic debates over the need to reform rapists and murderers while the parents of those little girls who were raped and murdered relive an unending torment for the rest of their lives.
Olav Abuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.