By Soma Mandal
Finally, the convicts Akshay Thakur, Pawan Kumar, Vinay Sharma, and Mukesh Singh have been hanged for the Nirbhaya rape case which occured in Delhi on 16 December, 2012. The long-awaited verdict for the death sentence, stayed, postponed and overruled three times on 22 Jan, 1 Feb and 3 March 2020, resounding with numerous mercy pleas and last-minute petitions to the President and to the International Court of Justice, however, couldn’t stop the judicial process and movement initiated by Asha Devi, Nirbhaya’s mother who went pillar to post to punish the four criminals. In an unprecedented move by the Supreme Court, the hanging of four convicts at the same time, on 20 March at 5.30 AM at Tihar Prison records and bears witness to the deliverance of justice for a ‘rarest of the rare’ crime against women. However, other crimes against women which are perpetrated and which are not supposedly of such heinous degree as the Nirbhaya still awaits justice, as the phrase ‘rare’ is taken as an impetus for urgent action.
The Supreme Court’s dispensation of justice for Nirbhaya does not make any promise of fast-track resolution to victims of a similar criminal offence in the upcoming and pending trials, but rather promises to uphold the supreme authority of justice to victims of violence. In a way, the verdict underscores the sovereign power of law to punish culprits with certain implications and consequences for those who would violate them. But with legal inequity seeping in and reflecting in various cases with political clout, the verdict isolates itself and makes a crossover from cases like Asifa’s rape and the Unnao tragedy. Nirbhaya’s mother Asha Devi thinks the legal message might ensure safety and protection for women in the coming days but her father observes, Nirbhaya’s verdict would open up avenues for discussion on expanding epistemic and legal pitfalls of a democratic institution which has been significantly diluted and bludgeoned by institutional bureaucracy. This also raises pertinent questions on how far and to what extent the escalation of violence is allowed in crime to make it a national crime. And to what extent gender violence is normalized so as not to constitute and categorise it as crime, a call which is discountist until it shows the perceivable threat of extraordinary transgressive criminal conduct? The point is crimes against women have to cross the threshold of the ordinary to be legally defined as a crime, the status of which cannot be otherwise accorded as unlawful and inhuman until the variable ‘protection of humanity’ vested in the law is violated. The humanitarian nature of law, therefore, does not have a minimum to moderate scale for trying of offence, thus revoking the minimalist of criminal cases as pardonable and only the extreme ones to be defined as humanitarian.
The insurmountable occurrence of rapes, molestation, abuse, murder, violence and criminal activity against women continues unabated for the discountist approach of this nature of rule of law which would, therefore, necessarily not stop after the Nirbhaya verdict and execution. The call is not made complete with the execution but only takes a critical leap to establish judicial faith in the interests of the nation. Though the verdict is historic, it is ironic to point out that only historical crimes make historical judgements, which is quickly forgotten the moment it is delivered. The difficult path to justice is so fraught with the granditude of history that everyday experiences of women against violence get brushed away with candidness until the crime invokes history! The inclination for sensational and historically unprecedented incidents to be recipients for justice does not do away with the wrongdoings and social evils. It only serves to deepen the moral crisis of the judiciary, exposing the faultlines of the system in a way which reminds us of the privileged positioning of criminal cases either in society or within the legal framework of the Constitution.
The most marginal of the cases even with extreme degrees of bestial brutality fails to bring it under the legal watch of the police and the courts. The legal turns when the dharma chakra of the law is set in motion is only when the public outcries exceed the supposedly personal and private scandals of the state and its citizens. Nirbhaya’s rape on the national roads in the capital internationalized the moment into a moment of historical memory. The unsparing bestial moment of her rape, the articulation of her wish to live and ultimately, her failure to survive the onslaught and tyranny of the masculine plunder of her body, tearing down the territories of civility into barbaric criminality breached the nation’s Constitutional and fundamental morality. The time, location, and nature of the incident provided a nodal impetus for feminist and public spur in movement, a location within the close radius of the country’s Constitutional offices of the executive, legislative and the judiciary. The manner of the expedition of the trial to re-invest the public with the trust which was breached right in front of the capital audience with a crime so horrific made headlines soon. However, the dyad of legal lag and ethical perspectives on capital punishment in the judicial system continued for seven long years, a period that has not only questioned the long silences and deferred in-house hearings in the Patiala Court and Delhi High Court but also the disputable nature of judicial integrity at work.
The present landmark judgement, a significant moment in feminist history for movements against sexual violence, particularly rape, will be a crucial and significant verdict for investigating similar cases. The retributive verdict will be a preventive warning and deterrent to rapists. But would it end the tyranny of rape altogether? Nirbhaya’s trial in the court of law contests and deepens the challenge of problematic blurring of cruelty through acceptance of mercy petitions and legal remedies provided to convicts. Rule 836 of the Delhi Prison Manual states that until all the legal and Constitutional remedies of the convicts does not get exhausted, the death sentence would not be executed. The announcement of the verdict and the deference of the same till the convicts exhausted all options over a time period of seven long years discretely transforms this judicial process into juridical agony for victims awaiting justice. The due process of curative petitions, mercy pleas, review requests and the grant of 14 days as reprieval period after the rejection of mercy pleas also points towards significant lapses in the manner they have been conducted and extended to these four convicts. The “intentional delaying” of the executionary orders by the convicts critically reflect on the jurisprudential slippages and misreading of statutory laws where abuse of juridical provisions affect the decisions of the legal systems.
The Nirbhaya justice after a gap of seven years certainly does not provide answers to continuing incidents of rape. The interminable time through which it was withheld may go against the presumptive and corrective nature of the verdict itself. It must make us address the faultlines in legal and judicial powers of the Courts. Justice has been delivered to Nirbhaya but that does not allow us the comforts of a safe women-space in the public. Nor does the punishment of the crime, a necessary legal procedure, make us believe in the institution of Judiciary. So the legitimate implications of capital punishment, even though it becomes absolutely necessary a punitive step in view of the crime committed, might not necessarily succeed on every occasion to provide legal respite to mitigate future crimes. It can also fuel deep crisis for distributive justice.
Prioritizing justice for the public as the highest goal of the law over crime control and preventive reforms has become the easy route to maintain judicial sacrality. The preferential treatment of cases violates the public expectation of distributive justice guaranteed under law. In A Theory of Justice (1971) and Justice as Fairness: Political, not Metaphysical, a 1985 essay, John Rawls prevails upon an egalitarian and libertarian view of social justice and advocates bridging differences and margins through the principle of justice. However, the philosophy of justice even in its broadest sense does not simply indicate the objective of erasing differences or even bringing a balance of harmony and truth against perpetration and violation of humanity but acts as a higher principle and the citizen’s last resort. Constructive mechanisms of punitive measures to prevent the sin in the first place would subsequently reduce the threat of injustice. The easy court orders and criminal tariffs make justice a wholesale product of neo-liberal judicial reforms that democratize and exalt justice instead of demonizing and curtailing the inception of crime. Every movement for We want Justice to a failed critique of rape and an increase in organized criminal behaviour needs to re-position state policies towards the activation of stringent penal rules than on the outcome of the rule of justice. The Nirbhaya rape as a social evil does not come to an end with the Supreme Court’s verdict for execution as a determinative and compelling case. This is because justice cannot be rewritten simply as a retributive closure in history. The verdict’s harsh message celebrates the triumph of justice but not without the human cost of suffering.
Soma Mandal is an independent scholar. She can be reached at firstname.lastname@example.org
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