To prove that two of the three convicts sentenced to death on Friday for the August 22, 2013 gangrape of a 23-year-old photojournalist at Shakti Mills were “habitual offenders”, the prosecution had pulled out their past cases, including those committed when they were juveniles.
Juvenile Justice Board members, child rights activists and legal scholars have, however, slammed the move, claiming it was against the spirit of the Juvenile Justice Act, which seeks destruction of every record of a juvenile offender’s past.
Arguing for the harshest punishment on Friday, special public prosecutor Ujjwal Nikam told the court that Vijay Jadhav (18) and Mohammad Qasim Shaikh (20) were juveniles in conflict with law and were convicted in two separate cases of theft. Nikam furnished details of the case, which were documented by the court. Sessions court principle judge Shalini Phansalkar-Joshi observed, “They (the two convicts) were given an opportunity to reform, but they did not make any good of the chance given to them by the Juvenile Justice Board (JJB). Therefore, the question of giving the minimum punishment, or that death penalty cannot be awarded to them, does not arise.”
Professor Asha Bajpai, dean at TISS School of Law, Rights and Constitutional Governance, however, pointed to Section 19 (1) of the Juvenile Justice Act, which reads, “Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of the Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.” Juvenile Justice Board (JJB) member Arokia Mary said, “The order of the JJBs cannot be provided to anyone, let alone referred to while deciding other cases. The board has to destroy the records.”
In his arguments, Nikam said the aspect of disqualification as stated under Section 19 of the Juvenile Justice Act arose only when a person sought employment. Mary, however, refuted, “The Act is very clear on this aspect, and no where is the word employment mentioned in the Act. A child in conflict with law has to be dealt with differently and no record of offence can be produced in any form, neither while employment is being sought, nor in other crimes committed subsequently.”
Rights activists also raised objection to Nikam’s argument equating sexual assault with murder and terming it an attack on the chastity and prestige of the victim. Senior women’s right activist Flavia Agnes said the statements were highly objectionable and worrisome.
Seeking death penalty for three convicts, Jadhav, Shaikh and Salim Ansari (27), Nikam had argued, “It (sexual assault) not only attacks her body, but also her prestige, mind, chastity and honour. The physical injuries will be healed, but the other injuries will not heal till she dies. Survival without prestige, love, affection and honour is no survival at all. Such loss is more painful than death. A victim of rape can tolerate death, but difficult to digest this.”
“We have strived hard to bring in a change in the mentality, and to spread awareness on how cases of sexual offence should not be made a matter of chastity. But with such arguments, we are pulled several steps behind. What is the use of working with the government?,” Agnes asked.
Nikam’s argument was recorded by the court, and Phansalkar- Joshi observed, “The victim was helpless and was attacked unprovoked. The crime did not happen due to some momentary lapse. It has to be understood that the victim was attacked unprovoked.”
National Commission for Women member Nirmala Prabhawalkar-Samant felt the issues raised were debatable. She, however, said the court had based its order primarily on the crime and its nature. “These arguments will keep coming up.
But, what is important is whether justice has been done or not. Here, the court has succeeded in conducting a trial in less than eight months, and has managed to send a strong message to society that crimes like these would not be tolerated. Is it not what we seek from our courts?” she asked.
All victims should be given similar support: Photojournalist’s mother
A day after a sessions court delivered the quantum of punishment in the photojournalist gang rape case, the victim’s mother released a press statement thanking the judiciary, state, police, doctors, NGOs, her employer and media for the support extented to her daughter. “Life is precious. As citizens, the law of the land prevails. It is for the lawmakers to decide the best laws that will be enacted as a deterrent to prevent even a single act of this heinous crime be committed against women. It is not for me, as an individual, to decide what law would be effective. My plea to all is, all victims of such heinous crimes should be given similar support,” she said in her statement.