New Delhi: The courtroom clapped, but not everybody is applauding. Some, in fact, are raising questions not just about the death penalty, but about the definition of 'rarest of rare' cases.
The Supreme Court verdict today confirming the death sentence awarded to four convicts in the December 16, 2012, gangrape case, and the ensuing reactions, have left some lawyers and activists bemused.
Senior advocate Rebecca John, who describes herself as a 'staunch opponent' of the death penalty, said she could not help but notice the judicial system's 'difference in approach' in the Delhi case and that of a pregnant Bilkis Bano, who was gangraped in the Post-Godhra violence of 2002.
"What were the mitigating circumstances there? In Bilkis's case, she lost a baby girl. Her head was crushed with a stone. I find it very disturbing that offences committed in other contexts, which are equally brutal, are treated differently," she told PTI.
The Bombay High Court yesterday rejected the investigating agency CBI's appeal seeking the death sentence for three convicts in the Bilkis gangrape case. However, it upheld the conviction and life sentence to 12 people involved in the case and set aside the acquittal of seven others.
Supreme Court lawyer Karuna Nundy believes that the 'collective conscience' of the people is bound to be 'subjective.
"The problem with the collective conscience standard is that one bench decides it is outraged for Nirbhaya, another does not for Bano," she tweeted.
John said apart from the usual moral and ethical questions, there was also no evidence to suggest that the death penalty acted as deterrence.
Instead, she said, it could act as an 'incentive' for a criminals to commit a murder in a rape case to suppress evidence, since both crimes could lead to a death sentence.
"Equating death with justice is something we need to evolve out of. It is understandable when the parents and the loved ones express such a demand, but I cannot understand why society bays for blood. And more disturbingly, that outrage is mostly selective," she said.
Activists hold that a death sentence also indicates a class, caste or religious bias.
The Death Penalty India Report prepared by the National Law University (NLU) - Delhi, released last year, observed that nearly two-thirds of people on the death row belonged to the backward classes, religious minorities or were Dalits and Adivasis.
"We should closely look at the class of people who get the death penalty. It is a middle class mentality that if you do away with a certain class of people, crime will come down,"
Enakshi Ganguly, who runs the HAQ Centre for Child Rights, said. John said the NLU study showed that people who were sentenced to death were not defended adequately in lower courts and by the time they were given good legal support in the higher courts, the damage was done. John and Ganguly stressed that the real deterrence to crime would come from a quick and robust prosecution. That will serve the ends of justice, John said.
Amnesty International India's Senior Campaigner Gopika Bashi said what was needed was far-reaching 'procedural and institutional' reform and called for the implementation of recommendations made by the Justice Verma Committee, which suggested quicker trials and enhanced punishment for criminals committing sexual assaults.
Bashi said there was need for police training and reform, preventive measures and changing the way reports of sexual violence were registered and investigated. "These measures will take effort and time, but will be more effective in the long run in making India safer for women," she said.