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Monday, July 23, 2018

Ideal rape trial, or travesty of justice?

Two high-profile rape cases deliver death penalties and touch off questions.

Published: April 11, 2014 12:31:49 am
The trials went on parallelly, and convictions were pronounced within minutes of each other. The trials went on parallelly, and convictions were pronounced within minutes of each other.

Two high-profile rape cases deliver death penalties and touch off questions.

The two high-profile rape trials, which made history as the first cases to be tried under the newly amended rape law, have been “successfully”concluded. Having had a ringside view of the trial, it is time now to raise some uncomfortable questions. Were these “ideal” trials or a travesty of justice? Were these fit cases to hand out the death penalty to three young boys, one of them barely 18, from impoverished backgrounds, or an exercise in appeasing the collective conscience of the nation or restoring the wounded pride of a city?

The death sentence was meted out in a case that started off as the first incident of gangrape after the amendment to the rape law. Coming close on the heels of the gruesome Delhi gangrape and murder case, it invited unprecedented media glare, and punctured the image of Mumbai as a safe city. Hence, it had to be dealt with, with the severest of punishment. The second case that came to light accidentally a few days later, of the telephone operator (a convenient misnomer given to the 18-year-old from the lower strata, still struggling to complete her basic schooling), provided the perfect prop to the entire setting.

In the hands of an astute public prosecutor, with several death penalties under his belt but without any credentials for conducting rape trials with dignity and sensitivity, the trial that started off as the first and the most high profile was turned into a “subsequent case”, and the subsequent one transformed itself into the first. The trials went on parallelly, and convictions were pronounced within minutes of each other. But the design of pronouncing the convictions provided scope for entertaining an application to add the additional charge under Section 376E, warranting death penalty, at this late stage. Logically, the case that was registered first and the trial that commenced prior in time ought to have concluded first. But that was not to be, as it would not warrant a death penalty. Hence, the second case is rendered a mere prop for the first.

By this, the very meaning of “repeat offender” became skewed, setting a dangerous precedent, diluting the premise of “rarest of rare” in our criminal justice system. While there have been death penalties in the past, the public prosecutor has boasted that this is the first instance where the death penalty was secured in a case where the victim was alive. Worst, a child in conflict with the law can only be punished for three years, but the moment he crosses the threshold, he can be sent to the gallows. On the other hand, there is no accountability for the state that failed in its duty to reform a “child in conflict with law” when he became an adult offender, while this factor can be invoked to press for the death penalty.

Does this argument serve to advance the cause of women’s rights, or defeat it? If rape is worse than death, if women who have lost their chastity and prestige have no reason to live, it sets another dangerous trend. Placing rape and murder on the same scale is an open invitation to anyone who commits rape to also commit murder. Women’s lives, already cheap and dispensable, will be rendered even cheaper. It then becomes the duty of a gender-sensitised judge to restrain the prosecution from advancing such archaic arguments and to advance the cause of gender justice.

The “collective conscience” of the nation, which is celebrating this judgment, will bemoan its harshness and its skewed interpretation only when it is applied to a case involving a “person like us”. It is indeed a travesty of justice, when deplorable poverty, young age, or even the presence of dependent toddlers, cease to be “mitigating” circumstances. To add insult to injury, when defence lawyers presented these factors by means of the mothers to plead the court to spare the lives of their young boys, the court allowed itself to be a free-for-all media jamboree. Lapses had been committed even earlier, when public prosecutors and defence lawyers were not ticked off for holding media briefings regarding the goings-on within the court while proceedings were held in camera, and allowing exaggerated, distorted or orchestrated versions to be projected in a sensational manner.

The fear of the intrusive media glare has been the greatest bane of the victims of these high-profile cases. The eventuality of cameras capturing their images and flashing them in newspapers is a constant fear they live with, causing them unwarranted anxiety and depression, hindering them from going about their normal chores. It is this fear that made the woman in the “Spanish rape case” go about in a burqa, in hired cars, with tinted glasses, until she left the country. It is due to this fear that victims in the present case had to be taken to court in burqa, surrounded by escorts. It is this fear that makes the victims live like fugitives.

Care, protection and treatment ought to be the state’s paramount concern and this is where the state has lapsed most. Even while securing the death penalty in a showpiece case, the victims are left to fend for themselves. Despite the fact that the Manodhairya scheme for financial support was launched as an outcome of this incident, they are not its beneficiaries and do not qualify for the Rs 3 lakh it assures. The telephone operator who suffered serious injuries not only did not receive any treatment at the state-run hospital, but was subjected to the humiliating two-finger test, totally unwarranted in her case, despite the fact that such tests are banned. Even today, she is coping with the psychological scars and extreme financial hardship.

These brave souls, the fearless ones, the Nirbhayas, need to be rewarded for their bravery and not cast by the wayside, nor treated as mere cogs in the wheel of justice to secure the death penalty.

The writer, a legal scholar and women’s rights lawyer, is the director of Majlis, a legal resource centre, and consultant to RAHAT, the survivor support programme for sexual violence.

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