Let me begin by first and foremost saying that, “A rape is a rape and under no circumstances can ever be justified! Even if a woman roams nude or is habituated to sex, this can be no ground to justify rape”! Even Supreme Court has time and again reiterated this! Yet it is the single biggest misfortune of India that in last 15 to 16 years, only one poor rapist named Dhananjoy Chatterjee was hanged for rape cum murder of a Class XI girl and that too on circumstantial evidence alone and still he was not given the benefit of doubt! Why this zero tolerance as shown in Dhananjoy Chatterjee’s case not shown in other cases also? Why should we be not ashamed of it?
While lamenting about this, senior and eminent Supreme Court advocate Colin Gonsalves very rightly pointed out that his petition was drafted by prisoners of Tihar jail and we cannot dispute that this was rightly termed as “miscarriage of justice! Why in many other similar cases like that of Priyadarshini Mattoo murder case where a law student studying in LLB who was raped and murdered by her senior was the convict not hanged similarly?
Just because the convict was affluent and powerful! This is just one case I am citing. There are many more such cases where we see that the rich and powerful very easily escape death penalty by hiring a battery of eminent and experienced lawyers and escape with far lesser punishment! All this happens right under the nose of the Supreme Court and still we see nothing changes in last so many years! This is what I find most worrying!
What is even more deplorable is that our legal system proceeds on an excruciatingly glacial pace for which no one else but our lawmakers are directly responsible! Who are these lawmakers? Those who are elected to Parliament and 45% of them are facing criminal cases including that of rape case! Why should these lawmakers not be barred from entering Parliament until they are finally exonerated not by just lower court but by the top court? How can we expect such lawmakers to make tough laws?
This alone explains why we have all this review petition, curative petition, mercy petition etc which ensures that cases are not decided in time and by the time cases are decided finally the family of victims lose all hope and break down completely! Should we be proud of this? Why there is no mandatory death penalty for rape cases? Who is protecting them?
The Vice President M Venkaiah Naidu very rightly said that, “What happens even after punishment is given (to convicts). We all are witness…appeal, mercy (petition)… can anybody think of having mercy on such people? This kind of violation of dignity of women cannot go on unchallenged. What is required is not a new bill; what is required is political will, administrative skill and then change of mindset and then go for the kill of the social evil.” He has very rightly expressed his utmost unhappiness on the niggardly and glacial pace with which our justice system moves most excruciatingly which completely destroys the morale of the parents and relatives of victims which under no circumstances can ever be justified by anyone! The Vice President has very rightly and eruditely suggested a rethink on the practice of allowing convicts in such heinous crimes to go in for mercy appeals because the death sentence of convicts in the 2012 Nirbhaya case, which saw major protests and tougher legislation, were still to be carried out. He also very rightly suggested that photographs of those guilty of crimes against women should be published to instill social stigma and fear in them!
Police encounters in which undertrials are killed cannot be justified. But we saw how just recently in early morning hours of December 6, 2019 when the police killed all the four rape accused in Hyderabad gangrape-cum-murder, there was a national rejoicing as we saw for ourselves in different newschannels and even MPs and Chief Ministers as well as former Chief Ministers welcomed this and a huge crowd of people started throwing flowers on those policemen who killed them! This is mainly because we rarely see rapist being hanged and our legal system proceeds so slowly that many people now have lost faith in the capability of our judicial system to deliver justice in time! This is most dangerous for our country and for this not just Supreme Court but even Parliament which comprises of our lawmakers and many of whom are themselves facing serious crime charges must introspect honestly and make tough laws in this regard including barring all those MPs who are under the scanner!
Why should a civilized society have any soft corner for such “dreaded goons” who indulge in gangrape? Why do our courts display leniency towards such dastardly acts of crime and why mandatory death penalty is not awarded to such “dreaded goons”? Why those committing such dastardly acts are not awarded mandatory death penalty in all such cases where either a child is raped or gang rape is omitted accompanied with murder?
Why in our IPC punishment for gangrape is classified according to age? Why are “minors” who are less than 18 years of age allowed to get away most easily by just spending 3 years at the most in a child reform house? Why should any form of leniency be shown even for “minors” who “brutally vandalise” the very dignity and wellbeing of a female without any fault of her?
Why should those rapists who know how to gangrape be let off just by citing their age factor? How can Centre justify it? How can Parliament justify it? How can any Court justify it?
Why are rapists released for some time on bail? Why the life and safety of victim is not cared for by the police? Why do we see that rapists after coming out of the jail many times corner the girl and then killed her by either burning her as we saw most recently in Unaao in UP where the women was raped in March and then just recently while she was going to a court in Rai Bareli in a rape case was most brutally attacked by 5 men who had earlier raped her and was burnt 90 percent? Still our Parliament will keep dwelling on whether to award death penalty to such rapists or not!
Why women does not feel safe anywhere in India? It is because our politicians, Judges, lawmakers feel most happy and proud to note that in last 15 to 16 years just one poor Dhananjoy Chatterjee is hanged for rape cum murder and do just nothing to ensure that others against whom there is strong evidence also unlike Dhananjoy’s case where evidence was just circumstantial are hanged similarly! Should we be proud of this and does it enhance the reputation of our country in the world?
Under the amended law for rape, no “discretion bomb” in the form of “may” should be left which has been mostly abused in favour of the rape accused and the punishment should only be death and nothing but death so that all those who rape are promptly hanged and not once in 15 or 16 years as we saw in case of Dhananjoy Chatterjee! There should be no life term, no twenty years but only death for gang rape. It is most unfortunate that even under the 2018 amended Section 376D of IPC which prescribes punishment for gang rape we see that the punishment is not less than twenty years but which may extend to life! Why “may extend to life”? Why so much of leniency that even for gang rape we see that punishment starts from twenty years but extends only to life and here too discretionary power rests with Judge which is shameful and what is most shameful is that there is no mention of death penalty even here leave alone making it mandatory? This must change now!
Why different punishment prescribed for gang rape on woman under 16 years of age as prescribed in Section 376DA and that on woman under 12 years of age as prescribed under Section 376DB of IPC? Why only life imprisonment under Section 376DA and not death? Why option of life and death in Section 376DB of IPC?
Why even for repeated offenders there is no mandatory death penalty and why the option of life term is added simultaneously in Section 376E of IPC? All these escape routes must be closed now forever so that rapists are never able to take advantage of the loopholes in our legal system anymore now! But are our politicians, lawmakers and Centre ready to do this or will they be happy with just face saving exercise and lip service? Only time will tell!
The past track record in cases like Nirbhaya and many others are not very inspiring but they can still be rectified! The ball is in court of Centre, lawmakers and Parliament for it is they who enact the law and it is they who ensure that rapists in Nirbhaya case like many others are not hanged even after being convicted by the Supreme Court and even after their review petition gets rejected by Supreme Court as they just sit on mercy petition and don’t decide it soon as we saw in case of killers of former PM late Rajiv Gandhi whose mercy petition kept pending for decades! Should we be proud of this?
Must act now without fail or else our democratic system will crumble and if gang hanging is not done it is people who will then do mob hanging like we are seeing also in many cases! No more excuses! No castration, no jail term, no life term and no minor excuse but only death as they deserve to be hanged at the earliest and killed like mosquitoes! No mercy for them, no review for them and no other escape route for them! Only death!
Why rape cases are not decided within few days or a month? Why sentence is not handed out promptly? Why cases keep pending for decades first in lower courts, then in high court and finally in Supreme Court?
Why can’t this be corrected by our lawmakers by amending law accordingly and setting a fixed time limit for deciding rape cases? Why is time limit not set for deciding review petition? Why is review and curative petition not abolished in heinous crimes like rape and terror?
Why mercy petition is not decided in few days or why should it not be abolished altogether for rape and terror cases? Why only the rights of the accused takes precedence over the rights of the victim? Why even our lawmakers prefer to look the other way on this all important issue as we have been seeing since last 72 years?
It is high time and now concrete steps must be taken on ground to ensure that our penal laws are amended and the most strictest punishment of death penalty be imposed uniformly on all those indulging in gang rape and there should be no “mercy petition” facility for such “dreaded goons” who display the worst form of violence against women whom we all worship in one form or the other like Durga, Gauri, Kali etc or in form of our mother and sister!
Can gangrape of any female accompanied with murder be justified under any circumstances? Can any punishment less than death penalty be ever justified in such cases of heinous crimes? If still Centre says “Yes” then it must immediately abolish death penalty for all types of crimes for it has no right to be on our penal laws if it cannot be awarded to those who indulge in gangrape or even rape accompanied with murder!
What the hell is Centre doing? How long will it keep inviting views from all on this? How long will it shy away from amending our penal laws to make it mandatory for death penalty to be imposed in all cases of rape or gangrape accompanied with murder? How long will female keep getting raped, gangraped and murdered?
Needless to say, this alone explains that why we are even below Pakistan and Bangladesh when it comes to “happiness index”! No time is spared to hang those who commit heinous crimes in Pakistan and Bangladesh. But see what is happening in our country!
Those accused in Nirbhaya gangrape cum murder case have not even been hanged till now seven years later even though Supreme Court has awarded them death penalty and their review petition have also been rejected! They are now availing the facility of “mercy petition” for which no definite time limit is specified for deciding it due to which they remain pending for many years! How can all this be justified by anyone on any ground whatsoever?
Why is gang rape in India not accompanied with gang hanging? Why should they be allowed to escape on any ground whatsoever? Why should they be allowed to escape punishment citing age as a reason? What message are we sending by exempting minors from strictest punishment?
The biggest treachery that our politicians have done with our Constitution is to ensure that heinous crimes like gang rape or rape accompanied with murder, terror crimes funded by foreign countries are not punished with mandatory death penalty and also by not abolishing ‘mercy petition’ privilege for such “dreaded goons” and terrorists! Why our judicial and legal system saves rapists and more crucially gang rapists from being hanged? How many gang rapists have been hanged till now since 1947 till 2019? We all know the answer! We all must be terribly ashamed of it. All Supreme Court Judges and all senior and eminent lawyers whom I would term “legal giants” like Soli J Sorabjee, Harish Salve, Kapil Sibal, Abhishek Manu Singhvi among others must introspect on this and give their expert advice to enhance the reputation of judiciary in the eyes of people and restore the waning confidence among the people which is a matter of utmost concern for all of us! We just cannot now afford to sit idle anymore!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.