Nirbhaya Convicts: Hanging in the Balance

AS FAR AS Asha Devi is concerned, the greatest lie ever told to mankind is that time heals all wounds. And the greatest truth? Justice delayed is justice denied. After all, Jyoti Singh’s mother’s life has been shaped by these two realisations since that fateful night on December 16th, 2012, when her daughter was gangraped and mortally wounded on a moving bus in Delhi. Jyoti, who would come to be known as Nirbhaya, succumbed to her injuries on December 29th, 2012. Sexual violence in India had a new milestone.

Much has happened since. The Criminal Law (Amendment) Act, 2013 broadened the definition of rape and made it non-bailable. The Nirbhaya Fund, to support initiatives by both the Government and civil society for ensuring the safety of women, was introduced, with a corpus in excess of Rs 3,000 crore. The Juvenile Justice (Care and Protection of Children) Act, 2015 was passed, amid controversy, allowing for juveniles between 16 and 18, found guilty of heinous crime, to be tried as adults. None of this stemmed sexual crimes against women. A minor was drugged, gangraped and murdered by a group of men in Kathua, Jammu & Kashmir, in a case which had communal overtones. An Uber driver raped a girl in Delhi after threatening her with an iron rod (he reportedly referred to what was done to Jyoti Singh). And in November 2019, a veterinarian was raped, murdered and burnt by four men in Hyderabad.

Through all this, the trial in Jyoti Singh’s case, which began on January 17th, 2013, proceeded and her mother, who has never missed a hearing, changed from a quiet homemaker to a tireless crusader for justice for her daughter. It continues to evade her. Asha Devi wants nothing less than death by hanging for the remaining four convicts (one committed suicide in prison while the other, a juvenile, was let off after three years). While every court has confirmed the death sentence handed out by a fast-track court in 2013, the execution has been delayed.

The first death warrant was issued on January 7th with the date set for January 22nd. This was done after the review petition for the accused—Mukesh Singh, Pawan Gupta, Vinay Sharma and Akshay Thakur—was rejected. On January 8th, Sharma filed a curative petition while Singh filed one the day after. Mukesh Singh’s petition was rejected on January 14th. He filed for mercy on January 14th, which was rejected on January 17th. A fresh death warrant was issued on the same day but for February 1st. Since then, more petitions have been filed, from curative to challenging the rejection of the mercy petitions. The date of execution is now set for March 20th. Such has been the delay that the Supreme Court has said it will step in on March 23rd if there is any further delay in the execution. Solicitor General of India Tushar Mehta has argued in court that it is dehumanising to keep the men on death row while stating that the convicts have been taking the system for a ride.

“I did not even know there are so many options available to the convicted once the judge has signed off on a death sentence,” says Asha Devi. For her, the real fight for justice began, in retrospect, with the rejection of the mercy petition of the accused. “Every time a new warrant is issued, I feel, finally this is the date. I hope this is the last time I feel this way,” she says. But one of the accused, Gupta, still has the option to approach the court to challenge the rejection of his mercy plea and his lawyer AP Singh is likely to file that. The Solicitor General has argued that Mukesh Singh and Sharma, who have exhausted all legal options, should be executed even if Gupta and Thakur file petitions against their rejected appeals.

“There is no law that supports the separate execution of convicts from the same crime,” says lawyer Yug Mohit Chaudhry, one of the most prominent advocates of the abolition of the death penalty in India. “However, if a government is prepared to learn from the mistakes of the past, then it will never again seek to execute convicts from the same case separately,” he says.The past mistake Chaudhry is referring to is the 1982 case of Harbans Singh in which three prisoners were sentenced to death for a murder. Their appeals, in the apex court, were decided by different benches, at different times and yielded different results. “This was extremely unfair. A gross violation of the fundamental right to equality before the law. Before the Supreme Court could make amends, one of the three prisoners had already been hanged,” Chaudhry tells Open. Since then, convicts are not to be hanged separately as long as the appeal of even one of the co-accused is pending.

“A poor man’s life has no value in this country. Which is why you see this baying for blood,” says AP Singh, the lawyer for Thakur, Sharma and Gupta. He invokes some of the more gruesome cases from the past, not all related to sexual violence, to ask why his clients are being singled out for the death penalty. “Was Jessica Lal’s case less heinous? What about Naina Sahni? What about Nithari? No one will raise their voice to save my clients, so I am left to do so.” Several defence lawyers have come and gone but AP Singh has persisted. The tactic of each was to indulge in theatrics inside the courtroom and hyperbole outside. AP Singh chose to go with shaming the victim and raising questions about her companion who is the sole eyewitness. “The defence lays shameful charges at our doorstep of benefiting financially from what happened to my daughter. There is nothing that I have not heard over the years from the lawyer. He says it is all in the name of fighting for his clients. Well, I am fighting for my daughter. I do feel that if these men had been executed earlier, it would have served as a deterrent. Maybe the girl in Hyderabad could have been saved,” she says while admitting that she did cheer when she heard about them being killed while “trying to escape” from the Telangana police on December 6th, 2019. “At least her parents got justice,” she feels.

The psychological impact of being on death row has been well-documented, with psychotic delusions and suicidal tendencies being just the tip of the iceberg. Added to that is the misery of the family, especially if they happen to be as economically disempowered as of those convicted in this case. “Their families live in jhuggis. Someone’s father runs a fruit thela, someone’s mother is blind. You make people like this meet their sons repeatedly for the ‘last time’ and then say, come back again. This is not fair,” says Singh. TV’s fascination with hangmen and the process of hanging, which includes detailed descriptions of how the rope is oiled, does not help the families either.

“The eking out of life and the prolongation of suffering, the looming and then suddenly receding date with death, the vacillation between hope and despair brought about by the successive issuing and cancellation of multiple death warrants destroys the mental and emotional health of a prisoner,” says Chaudhry.

Asha Devi restricts the movement of visitors to her home to just one room. Bravery awards are stacked high, as is a sketched portrait pair of her and her husband. Conspicuous by its absence is any personal touch or photograph of the family. “My sons don’t live here,” she says. She deliberately sent them away (though both are in Delhi) as she did not want their lives spent in pursuit of justice. The family does not celebrate any festival. “It has been so long and yet the image of her lying on the hospital bed does not leave me,” she says, tilting her head back to stop the tears.

It is this image that gets magnified when Asha Devi is asked to forgive the accused as senior lawyer Indira Jaising did in January this year. “You haven’t seen what I have seen. If you can’t help me, then don’t offer advice either,” she retorts.

More than 30,000 rape cases were registered in India according to the National Crime Records Bureau data of 2018. The number has consistently risen since 2012, though experts also attribute this to more women coming forward to report the crime. But the fact remains that in spite of strict laws and fund allocation, sexual violence remains endemic. The state’s response to every horrific instance of sexual violence has been to push for the death penalty even though women’s rights activists oppose this. An example is the 2019 amendment to the Protection of Children from Sexual Offences Act, which overlooked concerns of children’s rights groups about introducing the death penalty for child rape.

Experts argue that by assigning the death penalty to a crime, the Government simply offers a cover-up for faults that plague the system. The cheering that followed the killing of the four accused (they had not been convicted) in the Hyderabad case served as a reminder that in cases of sexual assault doing away with the whole notion of trial by law can find approval everywhere. “It is very important for us to separate the act from the perpetrator. But society is becoming very retributive. This baying for blood of men and women who stand accused of committing horrific crimes is not a sign of a civilised society,” says criminal psychologist Rajat Mitra.

Trial courts in India have always been more than lenient when it came to handing out the death penalty and this year, too, the situation is no different. In 2019, 102 sentences were pronounced while the first two months of 2020 alone saw some 40 sentences. By the time these cases reach the Supreme Court, many get commuted but not before the accused has spent years in limbo. Chaudhry says that the focus on the “‘collective conscience of society’ to justify its imposition has made the death penalty a popularity contest. Judges have become arbiters not of law or fact, but of the public mood, which they are ill-equipped to do. Judges must decide cases on the basis of the law and facts, and not on extraneous considerations. They abdicate this responsibility when they award the death penalty on the basis of what the public wants.” The ‘collective conscience’ argument excludes vast swathes of our countrymen because they take a different view. Most death sentences, he says, are based on circumstantial evidence vulnerable to manipulation. “It would be hazardous to snuff out a person’s life on the basis of such evidence. Combine this with the fact that most death-sentence prisoners are extremely poor and cannot afford competent lawyers and we are facing the real possibility of miscarriage of justice.” Chaudhry is the lawyer behind 2019’s case when the Supreme Court went against its own judgment and acquitted six Tribal men sentenced to death for a crime they did not commit.

But none of these arguments matters to Asha Devi, who says she has been at the receiving end of abuse from the families of the convicted since the death warrant was issued. “I have struggled for seven-and-a-half years to get justice for my daughter. But even now, the debate is about the rights of those who took away her right to live. Where is the justice in that?”

Asha Devideath sentencehanginglawNirbhaya caseSupreme Court of India