With its judgment sentencing to death the four rapists and murderers of Jyoti Singh, the Supreme Court has revived the trope of “collective conscience” to ride roughshod over the legal process. In an obvious sleight of hand, it has ignored its own precedents when it comes to rape and murder, as well as those which stipulate that all mitigating factors be scrupulously weighed before giving the death penalty. This is apart from the fact that the court ignored, without giving any reasons, all the submissions of the amicus curiae regarding loopholes in the prosecution case, as well as the substantive lapse in sentencing procedure.

The Supreme Court of India. Reuters

Individual role not proved

In the two judgements authored by Justices Dipak Misra and Ashok Bhushan and Justice R Banumathi, respectively, the court has put great reliance on the barbarity of the offence especially the insertion of an iron rod in the victim’s private parts which ripped her intestines apart. It has held that this act — apart from those of forced anal and vaginal penetration — was sufficient to cause a “tsunami shock” to the collective conscience of society.

However, as amicus curiae senior advocate Raju Ramachandran submitted, neither the trial court nor the high court went into the issue of who inserted the rod. Then on what basis did the court sentence all the four men to death?

In two earlier cases, Dalip Singh v State of Punjab (1953) and Ronny v State of Maharashtra (1998), the Supreme Court had held that if an individual’s role in the offence cannot be attributed and proved beyond reasonable doubt, it would act as a significant mitigating factor against imposition of the death penalty.

It is the first time that the court was dealing with a case where there were four offenders instead of one, where they collectively raped. But who committed the murder was not known, unlike in the earlier cases mentioned above. Then, was it not incumbent upon the prosecution to prove whose action(s) led to Jyoti’s death, and for the court to be satisfied with such evidence before imposing a “collective punishment” of death?

Unreliable dying declarations

The entire case rested on the dying declarations given by Jyoti. Senior advocate Sanjay Hegde, the second amicus in the case, pointed out how there were discrepancies in these declarations, and how each declaration was “incrementally improved” to suit the prosecution story.

In the first declaration, Jyoti had stated that there were a minimum of two men who raped and sodomised her and forced her to perform fellatio. In the subsequent declarations, she stated the names of six men and claimed that she was confident of identifying the offenders if shown their photographs. Even though, as she herself stated, and as was the prosecution’s case, that all the lights in the bus had been switched off and it was too dark to see and recognise the culprits’ faces.

It is crucial to note that by the time the second declaration was given, all the accused had been apprehended by the investigating agencies and had confessed to their crimes.

Although the court made a show of acknowledging the amicae’s submissions by reproducing them in the judgement, it did not go into any discussion regarding why it was disinclined to accept any or all of them.

Ignoring mitigating factors, heeding societal angst

Justice Banumathi, in her concurring opinion, refers to the judgment of the Supreme Court in Shankar Kisanrao Kade which laid down concrete tests for determining if the death penalty was to be awarded. These were the crime test, the criminal test, and the R-R (Rarest of Rare test). The first two tests weigh the nature of the crime whether it was premeditated or not and whether the convict has any chances of being reformed. The third test determines if society would want the crime to be punished with death. All these three tests have to be satisfied before awarding the death penalty.

In the present case, the crime test was dodgy because although the barbarity of the act was proved, it could not be attributed to any specific offender. As regards the criminal test, Justice Banumathi, despite affirmatively quoting from Justice Madan Lokur’s concurring opinion in Kade, goes on to state that the young age of the offenders and their impecunious background cannot be regarded as mitigating circumstances. She ignores the fact that the four had no prior intention of committing the gruesome crime. Instead, she holds that “crimes like the one before us cannot be looked at with magnanimity” and that it is a perfect example of the rarest of the rare.

The question begging to be asked is since when did adherence to precedent (or providing reasons for disagreeing with one) become an act of “magnanimity” and not one of judicial discipline?

As for the societal outcry, one cannot lose sight of the fact that this was an exemplarily mediatised case and trial where the judges at all levels probably fell to the temptation of acting out of a fondness of playing to the gallery. Thus, it is no wonder that the apex court fell back on justifying its actions by relying on the “collective conscience of society” to label the case as rarest of the rare. Lawyer Suhrith Parthasarathy has pointed out that the “collective conscience” test was intended to change the death penalty sentencing from a judge-centric one to one which factored in society’s considerations.

In the present case, as in some previous instances, the Supreme Court has made the death sentence dependent upon not what society needs, but what society’s shrill cry of vengeance demands.

http://www.firstpost.com/india/2012-delhi-gangrape-verdict-did-supreme-court-rely-too-much-on-collective-conscience-3427568.html