#Nirbhaya:“Media trial played a big role in the outcome of this case”,Sr. Adv.Rebecca John

Rebecca John was designated Senior Advocate in 2013 by the Delhi High Court. She has been a lawyer in many high profile cases including the Aarushi Talwar case. .In this interview with Bar & Bench’s Murali Krishnan, John speaks about her views on the highly publicised Nirbhaya judgment..What are your initial thoughts on the sentencing aspect of the Nirbhaya judgment, considering that this is a case which falls outside the ‘terror matrix’?.Starting with the Constitution bench judgment in Bachan Singh’s case, it has been a long journey for the Supreme Court in its attempt to lay down guidelines for the invocation of the death sentence. During this long process, the Supreme Court made it clear that it would not strike down the provision as unconstitutional but would restrict its application, “to be used where all other options were unquestionably foreclosed”..In Bachan Singh’s case the Supreme Court eschewed a mechanical approach and laid down the following guidelines:.The extreme penalty can be inflicted in only gravest cases of extreme culpability;In making choice of sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender..In Santosh Kumar Bariyar’s case the Supreme Court cautioned that capital sentencing was one such field where safeguards continuously take strength from the Constitution, and therefore the court was of the view that public opinion had no role to play in matters relating to sentencing. The Supreme Court went on to say that cases where there was overwhelming public opinion favouring death penalty would be an acid test of the propriety of the capital sentencing process..In Shankar Kishan Rao Khade’s case, the Supreme Court reiterating the principles guiding the awarding of death sentence, held that a three tier test must be followed before awarding death sentence;.The Crime TestThe Criminal TestThe R-R Test (Rarest of Rare Test).To award death sentence the Crime Test has to be fully satisfied, there must be no mitigating circumstance favouring the accused with respect to the Criminal Test and then alone can the R-R Test be applied. The Court has also made it clear that these guidelines are not exhaustive and that it could vary from case to case..The Bachan Singh – Santosh Kumar Bariyar approach has not been followed with sincerity and robustness, and this is what makes the death penalty jurisprudence in India capricious and arbitrary in nature..Although, aggravating and mitigating circumstances of the convicts had been argued by the Counsel, the verdict – especially the judgment authored by Justice Dipak Misra – does not discuss how the Court has considered these circumstances and why it chose to discard the same..The Court ought to have discussed why and how the alternative punishment of life was “unquestionably foreclosed”; it ought to have drawn upon Bachan Singh to emphasize that the State was required to lead evidence to show that the convicts could not be reformed or rehabilitated..So while in the Afzal Guru and Yakub Memon’s cases, the convicts were profiled as threats to the Indian State, the Nirbhaya Judgement which fell outside the “terror matrix”; also seemed to have been swayed by public emotion..But the Court did, in fact, ask for separate individual affidavits from the four convicts setting out the mitigating circumstances and those were filed and the Court had held detailed hearing on the same..I am not insinuating that enough time was not given or that Supreme Court did not go through the procedure or process while hearing arguments. But ultimately it is the judgment which is public record and not the hearings of the court and what I am saying is that there is no analysis or discussion as to why the mitigating circumstances of the criminals were being discarded. The Court seems to have gone straight to the Rarest of Rare test by saying the conscience of the nation was shocked and that it was a brutal crime..The Court sentenced four people to death, and it had to analyse all the mitigating circumstances set out in the affidavits, step by step and then rule why it was discarding the same. This exercise had to be undertaken for each of the accused..So do you think the time spent by Supreme Court on that aspect was wasted?.I don’t know whether time was wasted and that is certainly not for me to say but, in the end we have a judgment that most of us expected, given the public pressure there was in this case. But we don’t have a clear, cogent legal analysis of the sentencing process, which itself is a deviation from the earlier precedents, and that makes the sentencing judgment flawed..A few days ago, another 3-judge Bench of the Supreme Court had sentenced another person to death for the rape and murder of a four-year old child..I have not read that judgment. But what I can say is that death penalty cannot be the rule. Every murder and rape is brutal and gruesome. Is one murder less gruesome than another? Not at all!.However, death penalty is always the exception. So the question is whether the Supreme Court is going back to a stage where death penalty becomes more of a norm and not the exception? I don’t know. Are these trends suggestive of a dilution of the position evolved by the Supreme Court?.I hope not because as per Bachan Singh death penalty should be imposed only when all other options are foreclosed. It was a cautionary note for all Benches of the future and as it was decided by a Constitution Bench, it still remains the controlling precedent on the subject..Do you think death penalty has become very judge-centric?.A lot of criminal law has now become judge-centric. There are no guidelines in our country regarding sentencing, even sentencing outside the death penalty framework. We don’t know why somebody is sentenced to a minimum sentence of say, one year imprisonment, while someone else is handed out the maximum punishment in the same or similar case..Are there any guidelines to guide the judge on how much punishment he should mete out to a convict? Much of criminal law is based on what Justice Krishna Iyer said was “the hunch of the bench”. That is disturbing, because if we don’t have a standardised procedure, then it really depends on where the case goes. That is frightening, because one has no control over that..So, is it time for Parliament to step in and enact something at least with respect to death sentence?.I am not sure whether Parliament would be willing to do that because we have not abolished death penalty from our statute book, although 133 countries have abolished it..However, it was our courts which held out a beacon of hope because although Parliament did not abolish death penalty, it was the courts which made it difficult for death penalty to be invoked in different cases. I hope that the Supreme Court will consider the aspect of death sentence in consonance with its own guidelines..But the Supreme Court at least re-heard the sentencing aspect and heard the convicts on mitigating and aggravating circumstances. The trial court and High Court did not even enter into that debate..Yes, that was shocking! It was complete abdication of duty [by the trial court and High Court], although they have an obligation to follow the law laid down by the Supreme Court..Did the media trial play a big role in influencing the outcome of this case?.Most certainly.