So the Delhi high court has upheld the death sentence for Nirbhaya’s killer rapists. This is not unexpected given the brutality of the crime and the storm of protest and loathing that it triggered. What is surprising though, is the clear admission in the verdict that it was influenced by public outrage.
“The cruel acts committed by the convicts are such that if appropriate sentence is not awarded, the rage of the society would not be satisfied and our justicing system would be rendered suspect,” the judgement explained. And added: “Any leniency shown in the matter would not only be misplaced, but is likely to promote private revenge among the public, leading to absolute lawlessness in society.”
Well yes, as long as we have the death penalty not awarding it would be seen as a reduction in punishment. The rapists’ acts of savage brutality made this a very grave crime. The huge uproar it caused forced us to change our sexual assault and harassment laws. As long as the death penalty exists in India, upholding the death sentence for Nirbhaya’s killers is justified. I must mention here that as one opposed to the death penalty, I find the need to continue this culture of violence particularly self defeating. Hanging convicts does not make our society safer or better, it just encourages our bloodlust, makes society more violent and allows us to define justice as revenge.
Besides, a callous, careless, corrupt, prejudiced and easily persuaded social, political and administrative system like ours does not deserve the right to dole out death to anyone. However, until we abolish capital punishment and make lifelong imprisonment the severest sentence, convicts like Nirbhaya’s killers would need to get the death penalty. The Delhi high court had no choice.
But did it need to specify that it was doing so because it feared public rage? Did it need to explain that it was persuaded not only by the demands of justice but by the demands of a possible mob? Did it need to clarify that justice is no longer blind? Allowing mob sentiment however justified to influence legal procedure sets a dangerous precedent. It interferes with justice delivery and diminishes our democratic freedoms as we prioritise majoritarian sentiment over constitutional rights.
Unfortunately, this public rage towards rapists is being used against anyone accused of sexual misconduct. Yesterday Tarun Tejpal who has been in a Goa jail since November end has been allowed to visit his terminally ill mother in a Goa hospital. No doubt a posse of policemen will importantly escort him there and back. All his bail pleas have been rejected.
As you know, Tejpal flourishing journalist, writer, businessman and editor of Tehelka was accused of sexual misconduct with a junior female colleague in a lift in Goa last year. And following some pretty public, pretty melodramatic emails between him and the young lady, Tejpal has been slapped with several charges under the new, post-Nirbhaya rape law and could face 10 years in jail.
Accused of digital rape, Tejpal has been chargesheeted under seven sections of the new law, from molestation to rape and wrongful confinement and using his position of authority and betraying her trust. Over 2,846-page and 12 volumes, with statements of 152 witnesses, this super chargesheet is clearly on an enthusiastic test drive of the new rape law.
“Bear in mind,” the prosecution reminded the court, “that for the law to come into force, to pave its way, somebody had to pay with her life.” Everyone is keen to exploit the public rage that Nirbhaya’s death triggered.
Sadly, the well meaning new law sits awkwardly on old habits, and justice may get lost in the labyrinth of vestigial rules. Take the fact that Tejpal has not been given bail yet. It is difficult for those accused of rape to get bail. That is an old rule. Left over from the time when rape was defined very narrowly, and involved penile penet-ration and grievous injury that needed to be proved in court with the help of medical evidence. Given this super narrow definition of rape, the accused was likely to be a violent man capable of hurting the victim if out on bail, intimidating people and sabotaging the trial. Today, the accused need not be violent. To press charges of rape you don’t need to be physically hurt, you don’t need medical evidence, you don’t need penile penetration.
This woman-friendly new rape law makes sure that going against the will of the woman constitutes rape. Not what she says, what she wears, what her sexual history is or how much she had protested. Besides, the burden of proof is on the accused that is the basic assumption of innocence till proven guilty has been turned on its head, perhaps for good reason. A rape accused is guilty till proven innocent.
If so much has changed, if the very nature of rape has changed in the eyes of the law, why not the attitude towards bail? Why are the courts and the police treating this man accused of an inappropriate sexual act for a minute or two in a moving lift with the caution that one reserves for terrorists and murderers? Can we not see the difference between a groper and a killer?
Bail is everyone’s right. Denying bail deprives a citizen of his fundamental right to freedom even before he is convicted of his crime. And unless there is very good reason for restraining the accused, an undertrial must get bail. In our land of long drawn trials and inadequate justice, denying bail is very often used as punishment. And courts sometimes feel the need to deny bail to famous people or to the accused in high profile cases, in an attempt to prove that they are not influenced by status or power. This works against the principle of justice.
Now that the law has finally changed, it needs to be honoured. We need swift bail for the accused. We need to scrap the mandatory potency test for all rape accused that even Tejpal was ridiculously put through. We need to change our attitude towards the rape accused if we really want white collar rapists to be punished.
Today only a quarter of those accused of rape are convicted. Unless we use common sense and our conscience when dealing with this severe new law, it would further reduce the rate of conviction.
