Upgrad LLM

No Mercy Petition And No Life Term Ever For Gang Rape

As we all know, the gruesome, cowardly and dastardly act of gang rape and cold blooded murder of 27 year old government veterinary doctor in Hyderabad has left the whole country shocked and seething, but as usual, yet again, the common person has been left totally helpless as our Government at the Centre still hasn’t done nothing to ensure that the real culprits are sent to gallows as early as possible! What we instead see is politicians cutting across party lines lighting candles, lighting lamps and strongly claiming that they stand firm with the victim and her family! All this reprehensible sham must end now! It is high time!And, now concrete steps must be taken to ensure that our penal laws are amended and the strictest of punishments - death penalty be awarded uniformly to all those indulging in rapes and there should be no provision for ‘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 at least revere in the shape of our mother and sister!   

Let me now pose a few pointed questions which keep troubling my mind time and again.

Why should a civilized society have any soft corner for such “dreaded goons” who indulge in crimes like rape? Why do our courts spare leniency for such dastardly acts and why mandatory death penalty is not awarded to such ‘dreaded goons’?

Why in our IPC punishment for rape and gang rape 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 most in a reformation institution? Why should any form of leniency be extended even to ‘minors’ who ‘brutally vandalise’ the dignity and modesty of a female without any fear of sanction? Is a minor in today’s time unaware of what he or she is doing and what shall be the consequences of such acts on the victim and the society? They can drive vehicles before the age of majority, they can consume liquor before the stipulated age, they can do whatever they want to but suddenly they become too young to be imprisoned and left with a scar on their mind for doing something they did not have the legal capacity to intend? What about the scar they leave on the mind of their victim, her family and the society as a whole?

How can our lawmakers justify it? How can the parliament justify it? How can any court justify it?

It goes without saying that, age, under no circumstances can ever be an excuse for anyone to mercilessly rape a woman and kill her in an unspeakable manner and still escape any serious punishment being meted out to them ever! Those men who commit crimes like rape have absolutely no right to stay alive. Yet, we see that time and again they slip off the grip of law just because they enjoy theblessings of our penal laws like the IPC which were shaped according to a society that no longer exists!

While condemning the grisly incident, film actor - Akshay Kumar recalled the ‘gut wrenching Nirbhaya case’ in a tweet. He very rightly wrote while speaking from his heart in simple and straight language that, “We seem to be losing as a society. It has been 7 years to the gut-wrenching # Nirbhaya case and our moral fabric continues to be in pieces. We need stricter laws. This needs to STOP.”

Another actor - Farhan Akhtar pointed out – ‘What those men did is another dark reminder of how unsafe we’ve allowed our society to become, by not delivering swift and telling justice in these cases!” He also rightly added that, “And what is going to be done about the minor allegedly involved if found guilty? For what it’s worth, I feel that if you’re old enough to knowingly commit a crime this brutal, you’re old enough to face real consequences.”

But what a crying shame that Centre and our lawmakers sitting at the Parliament, many of whom are themselves facing serious crime cases like that of rape and murder are calling the shots and till date in last more than 72 years have never allowed for a law that provides for mandatory death penalty for such heinous crimes like rape and worst of all even for gangrape accompanied with brutal murder! Can we call ours ‘a mature and responsible democracy’? Should we be proud of ourselves?

Can a gangrape-cum-murder of any female accompanied 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 crimes like rape 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? How long will the women in this country 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”! Politico-legal health and progress is surely a part of person’s happiness as an individual, and it surely affects how a person lives his life and how happy he is with living it in such way.

Those accused in Nirbhaya gangrape cum murder case have not even been hanged till now, seven years later, even though the 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?  

To put things in perspective, the victim had left her scooty at a toll plaza and went to work in a cab, like she would every day. When she returned to the toll plaza, she found that her tyre was punctured. The Hyderabad police suspect that the perpetrators deliberately punctured the tyre, following which they won her confidence in the pretext of offering help and setting her tyre right. The unidentified men took her to the adjacent service road, raped her brutally turn by turn and then finally set her body ablaze at a location 25 km away!

No doubt, the gruesome nature of the crime has once again brought back chilling memories of the Nirbhaya incident that took place in Delhi on 16 December 2012, that shook the collective conscience of the entire nation!

Richa Chadha lamented exclaiming that, “Her only crime was she trusted these men who promised to fix her scooty. Perpetrators are (to be) given the harshest punishment, they don’t belong to a society. They won her trust and then brutalized her. Treated her like a thing, not a human being.”

ShabanaAzmi too lamented saying, “The horror! The brutality! Perpetrators must be brought to book. I grieve for her family and for what is happening to some elements in our society.” Why inspite of so many incidents of horrifying gangrape has Centre failed to act so far?

Rahul Preet Singh wrote, “I don’t even know how to react about the incident. It’s high time we as a nation instill fear in people’s minds so that no one dares to even think about committing a crime so horrific.”

But the moot question is: Will Centre act? Will it wake up from its deep slumber? Will it take steps to amend laws accordingly so that no escape route is left for those animal who indulge in such crimes?

SwaraBhasker while condemning the beastly crime said, “Numbed and shocked that as a society we continue to display our brutality! Instead of our humanity uniting us across religious and creed divisions, it seems our monstrosity unites us! Shame!!!”

Vijay Deverak very rightly pointed out that, “We should take responsibility of our men/boys at home, our friends and in our surroundings. Stand up to any wrong behavior, correct them and make them understand. And those who don’t behave like humans don’t deserve human rights. Give them what they deserve.”

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/minority 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 and terror crimes funded by foreign countries are not punished with mandatory death penalty and also by not abolishing ‘mercy petition’ privilege for such miscreants! Why is it that we get to hear only once in last 15 or 16 years that one Dhananjoy Chatterjee is hanged for rape cum murder even though the evidence was circumstantial and his mercy petition was drafted by prisoners of Tihar jail as he had no money to engage good lawyer or even an ordinary lawyer? Why are men who come from rich and affluent section not hanged similarly?

No wonder that senior Supreme Court advocate Colin Gonsalves had slammed Dhananjoy’s hanging as “miscarriage of justice” because he felt that in other similar cases of circumstantial evidence death penalty was not given! Still we saw that sweets were distributed when Dhananjoy Chatterjee was hanged! Why is law not applicable equally to all in such heinous crimes?

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!

How can India be peaceful, progressive and prosperous as long as woman, girls and even babies are not safe from rape and gang rape accompanied with murder? How can India proudly assert to the world that we had the guts to hang a poor rapist named Dhananjoy Chatterjee on basis of circumstantial evidence alone about 15 to 16 years back but we don’t have the wherewithal to ensure hanging of gang rapists and those rapists against whom we have so much of evidence? How can India claim that, “No matter how high you are, the law is above you” even as not a single rapist or gang rapist hailing from a rich background has been hanged till now for the worst crimes committed by them?

Even the accountability of police in such cases of heinous crimes must be fixed. NCW Chief Rekha Sharma was furious at this episode and so let back no punches to point out explicitly that, “A team of women’s panel visited the family who told them that the police played a ‘negative role’ in the case. The family members also said the police even alleged she had eloped with someone. Nothing can be more outrageous than this! The NCW, in its report, said prima facie it observed that police officials delayed taking action in this case. NCW member ShyamalaKundar said she recommended action against policemen, after inquiry who allegedly did not respond on time to the family’s complaint. She found fault with the policemen who allegedly told the victim’s sister who had gone to lodge a complaint, that the case did not fall under their jurisdiction! How can this be justified under any circumstances? Should the erring policemen not be awarded stringent punishment in all such cases?

It is an established fact that gang rapists have no fear of law and they feel that they can get away most easily by hiring good lawyers, ensuring that cases keep pending for several years first in lower courts, then in high courts and finally in Supreme Court! Not just this, even after the case is decided, the file review petition and even after the review petition is rejected, mercy petition and which keeps pending first with the Governor in case of States and Lt Governor in case of Union Territory as in NCT of Delhi and then again keep pending with the President which has made a huge mockery of our entire legal system as it takes a very long time to get it decided finally! Those who are juveniles are even more privileged and escape most lightly with just about three year jail term! This is the real dirtiest part of our penal laws and still despite so many cases involving juveniles, no attempt is made to amend these most reprehensible provisions! Should we be proud of this? We should be most ashamed of this! I am completely taken aback to see how there is no mandatory death penalty in such cases!

We all have read recently that Union Home Minister Amit Shah said that Centre was contemplating changes in colonial penal law like IPC but it still remains to be seen that how much is done and how quickly it is done to assuage the feelings of all those who are extremely pained on the growing incidents of gangrape happening so frequently with alarming regularity in our country! Lawyers not defending gang-rape accused in lower courts is no solution. The solution is to inflict mandatory death penalty in the least possible time and not giving gang rapists the mercy petition facility or even review petition facility. Even if given these facilities, it must be ensured that they are decided at the earliest and gang rapists are hanged at the earliest! Is Centre, Parliament and our lawmakers prepared for this? If yes, then no time should be wasted in acting on this right now!

We need to now adopt a “zero tolerance policy” approach towards rapists and gang rapists. No mercy of any kind should be shown towards them!

Only then will a loud, clear and strong message go to all rapists that they cannot go scot free even after raping or gang-raping a woman and then killing her as well! To hell with Article 370, to hell with uniform civil code, to hell with triple talaq and to hell with all other things if women are not safe in our country and the perpetrators of heinous crime are not punished with mandatory death penalty for which law needs to be amended right now itself! Similarly rape or gang rape of minor must be mandatorily punished with death penalty for which law must be amended accordingly!

It merits no reiteration that states must work more actively to provide relief to victims and their families. It is tragic that 11 states have not used even one rupee of the Nirbhaya fund which they get to be spent on them and their safety! This must change now! As Delhi government has rejected the mercy petition of those charged with Nirbhaya rape and murder, the President must also decide it promptly and the sentence must be executed immediately! It brooks no delay anymore! No nation can progress where women are not safe! To protect them, all those involved in such crimes must be hanged immediately! Only then will death penalty act as a strong deterrent for which it was really introduced in our penal laws!  

 

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Sanjeev Sirohi 
on 21 December 2019
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