Revisiting the effectiveness of the post-Nirbhaya Amendments

On the March 20, the Nirbhaya case convicts were hanged to death at Tihar Jail after a late night legal battle. While India celebrates the execution, doubts about the effectiveness of the legal process linger.

While discussing the work of Judiciary in cases of rape, we need to look at the Justice Verma Committee that was set up in 2013, post the Nirbhaya case.

After the horrific case, the public demanded speedy justice in such cases and harsher punishments, to act as a deterrent for potential offenders.

In the light of the same, the Committee brought in some amendments that were enough to quell the public anger. But were they satisfactory enough to “deter” the crime?

In my opinion, increasing of the punishment to capital punishment does not help deter the crime. To deter crime, the Committee should have focused on the probability of the accused being punished by effective enforcement of the law rather than increasing the punishment to death penalty. This is because criminals often believe that they can get away with their crime and even if punished, it would be many years after the crime.

The Nirbhaya case is a striking example. The case, even after receiving much media coverage and public attention, took seven years to complete.

What exactly is the public learning? That the law can be molded to delay the punishment multiple times? Most of the books and movies referring to criminality discuss the offender’s point of view: Is crime rewarding? As discussed by Dostoyevsky in “Crime and Punishment”, one can say that crime is rewarding if you are not caught.

Hence, we can say that it is not just the level of punishment, but the same being coupled with the certainty of getting caught and punished, that affects the decision to commit a crime.

Much has already been written about how capital punishment does not really act as deterrence. The 2017 report by the National Crime Record Bureau (NCRB) proves how even after seven years of Nirbhaya, very little has changed, as the cases of sexual assault haven’t reduced.

Given the fact that there has been no significant change since the amendments passed in 2013, we need to ask ourselves whether we need capital punishment or an efficient law enforcement that leads to deterrence.

Another major change brought in by the Committee was the setting up of fast-track courts for “speedy” trial without any “delay”. The Nirbhaya case that was supposed to be a fast track court case, took four and a half years to be heard in all the three courts - trial court, high court and the Supreme Court.

The Supreme Court upheld the death penalty on May 5, 2017. As it took three years for the sentence to be executed, the victim’s lawyer alleged that the defendants resorted to delaying tactics. It seems that the allegation holds water.

As per the Supreme Court Rules, 1966 the four convicts had the right to file a review petition within “30 days” of the Supreme Court order of May 2017. However, delay could be condoned if the convict has a convincing reason. This exception has been misused by all the convicts for delaying the execution.

All four convicts delayed their individual review petitions and filed them on different dates. Three of them were filed in 2017 - November 6, November 11 and December 12. The fourth one filed on December 9, 2019, almost two and a half years after the date of the death sentence passed by the Supreme Court and also one and a half years after the Supreme Court dismissed the review petitions of the other convicts on July 9, 2018.

After the rejection of all the four review petitions, the convicts used the same delaying tactic for the mercy pleas. Other than this, there were a lot of tactics used such as giving false alibi, contending in the High Court that the documents passed by the trial court were in a language that the convicts could not understand, which took number of days to translate thousands of pages etc. Another reason for the delay was constant adjournments and no hearing on a daily basis. Hence, the effectiveness of the fast track courts is questionable.

Furthermore, although the laws were amended for harsher punishments and speedy trial, nothing much was done to prevent the crime. Focus on prevention is equally important since what people really want is lesser crime in the future.

Sexual violence against women stems from the deeply rooted patriarchy in our society that promotes imbalanced power dynamics. This fact was ignored, and instead, the easy, public appeasing way of death penalty was chosen. The death penalty stands as an illusion of justice.

In my opinion, the need of an hour is a system that addresses judicial delays and enforces law efficiently so as to deter the crime. One way is to ensure that strict deadlines for completion of cases are set, something similar to the practice followed in commercial courts.

In addition to this, a deadline must also be set for the mercy petitions to be decided, so that they aren’t kept pending for a long period of time.

It must also be ensured that the process of law isn’t abused through delaying tactics. For this, delays should only be condoned when there is a strong justification and not for routine explanations. Further, a strict limit must be set to ensure that delay is not condoned after a certain period even if there is an explanation.

In the case of multiple convicts like in Nirbhaya, the execution should be carried out irrespective of any other legal proceedings opted for by the co-convicts, something that the government has already urged for.

The case of Harbans Singh v. State of Uttar Pradesh explains why co-convicts of the same criminal incident cannot be executed separately. In this case, one convict's sentence was commuted to life imprisonment in review, while it was rejected for the other two. Of the two, one was executed and the other co-convict challenged the sentence. Hence, after this, no death row convict could be hanged before all the convicts have exhausted all legal options available to them. However, this practice has been grossly misused by defendants for delaying their punishments.

Further, fast track trials would be futile if the appellate process takes too long. Hence, there should be dedicated benches in the High Courts and the Supreme Court to deal with appeals from the fast track courts.

Additionally, the government should also focus on other ways to reduce the crime. In various countries such as Africa, education has proven to prevent sexual violence acts. The frequent sexual crimes in India prove the need for such curriculum in our education system. This would ensure that men understand the importance of respecting women and break the patriarchal norms, especially the belief that their body is superior than a woman’s.

The fact that young men in India grow in a male-dominated environment where they enjoy mobility, opportunity and preference as opposed to the young women, leads to misdirected masculinity and unequal gender attitudes. This is also a reason why men do not understand the concept of “consent”.

To fight this problem, it is necessary to educate men. Additionally, sex education must be added in the curriculum as research shows that the more we talk about sex and agency in the teen years, the less likely the chance of sexual violence.

Therefore, if we want to fight the rape culture prevalent in our society, we need to address the root cause of the crime rather than resorting to ways that only appease the public. Hence, we need to focus on the combination of effective law enforcement that acts as a deterrent and education to overcome the toxic masculinity that leads to rapes.

The author is a student of O.P Jindal Global Law School and has a keen interest in women’s rights and constitutional law.