Do Delhi gangrapists deserve the noose? 'Friends of court' say no

Should the court award a death penalty to perpetrators merely on the basis of the brutality of the rape? And, while awarding the capital punishment, should the court rely on evidence which was vitiated by substantial contradictions and illegalities?

These questions take centre stage before the Supreme Court because of the submissions of two amicae curae (friends of the court) in the now-infamous Delhi gangrape case. Both the amicae have given detailed explanations to submit that the death penalty violated not only settled law but also the convicts’ fundamental rights to life and equality before the law.

The brutal gangrape of December 16, 2012 that shook New Delhi (and the rest of the country) is still fresh in the public’s memory. The massive outcry and the wide media coverage ensured that the trial was swift, and justice, swifter. All the four accused (one of the six died in prison, while another one was let off because of being a juvenile at the time of committing the offence) were sentenced to death on September 10, 2013, a day after being held guilty by the trial court. On March 13, 2014, the Delhi High Court upheld the sentences of capital punishment. Two of the four appealed to the Supreme Court, and the court appointed two Senior Advocates as amicae curae (friends of the court) to assist it in delivering justice.

Raju Ramachandran and Sanjay Hegde, the two amicae, have now contended that awarding the death penalty is bad in law because it flouted a number of rules read into the law by the Supreme Court itself. On January 23, the court took on board the submissions of Ramachandran and Hegde, and decided to hear them in detail at a later date.

The amicae’s submissions can be broadly categorised into two parts. Ramachandran has contended that the “one-penalty-fits-all” form of sentencing is against the law, and that both, the trial court and the high court, gravely erred by not following the basic tenets of capital sentencing.

Hedge has submitted that two of the three dying declarations on which the courts relied with regard to the brutalities inflicted on the victim Jyoti Singh Pandey do not meet the mandatory stipulations required by law. On that ground alone, the death penalty should not have been awarded as there is no concrete and reliable evidence regarding the severity of the offence, Hegde contends.

Hasty “Justice”?

Section 235 (2) of the Code of Criminal Procedure mandates that in cases of capital punishment, the convict must be given a fair hearing on the issue of the sentence. What form should such a hearing take? Should it be a mere legal formality, or should the judge adhere to the law in both letter and spirit?

In such a hearing, the circumstances of the offender must also be taken into account while awarding capital punishment, a constitution bench of the Supreme Court held in the Bachan Singh case, the seminal ruling on death penalty. And, as the apex court later explained in the Allauddin Mian case, the “judge must make a genuine effort to elicit from the convicts all the information that would have a bearing on the sentence.” Such a “genuine effort”, Ramachandran claims, was not given to the convicts.

‘The sentencing on the very next day of the conviction deprived the convicts of a chance to reflect on the question of sentence and place their cases adequately before the judge’, he says. Both Additional Sessions Judge Yogesh Khanna (who authored the trial court’s ruling) and Justices Reva Khetrapal and Pratibha Rani ignored this very vital consideration - that the courts should “approach the question of sentence not from a strictly legalistic but from a broader sociological point of view”.

In sum, Ramachandran contends that by acting in haste, and thus depriving the convicts of an “individualized” sentencing process, as required by both statute and supreme court case law, the courts below have deprived them of the most important and elementary of fundamental rights.

Dying Declarations Riddled with Loopholes

As regards the severity of the offence and the identity and roles of the culprits, both the trial court and the high court based their decisions entirely upon the three dying declarations given by Jyoti, the deceased victim. In his submissions, Hegde claims that while multiple dying declarations are admissible in a court of law, in the present case the declarations are “crafted” in a manner which reflects only the prosecution’s version of events; they substantively contradict each other, and the “consistent improvements” in each of them to suit the prosecution story renders them “wholly unreliable”.

Here are the major contradictions in the declarations as pointed out by Hegde:

One, the first dying declaration, given on December 17, 2012, states Jyoti as saying that rape, sodomy and forced fellatio were committed upon her by a minimum of two men, and because she was rendered unconscious, she couldn't recollect the names and identities of those who attacked her, or the number of the chartered bus on board of which the incidents took place.

Two, the second dying declaration, given on December 21, brings out the biggest lacunae. It was recorded at a time which was more than four hours after Dr. P.K. Verma, head of the ICU, had declared Jyoti fit enough to give a statement since she was on ventilator support. The fact that the magistrate recording the statement relied only on a medical certificate from Verma without independently verifying his assessment raises suspicion, because a dying declaration can be admissible only when it is conclusively proved that the declarant was fully mentally fit and coherent.

Moreover, in the said declaration, Jyoti mentions specific details, the names of the men, and the bus number, and also claims that she was confident of identifying the offenders if shown their photographs. Even though, as she herself stated, and as was the proecution’s case, that all the lights in the bus had been switched off and it was too dark to see and recognize the cuplrits’ faces.

It is worthwhile 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. The fact that the magistrate relied only upon the statements of the police and Jyoti’s parents (she could not recall if Jyoti was present while recording of the declaration) only makes it more plausible that the declaration was in fact a “tutored” statement, suited to what the prosecution needed.

Three, the third declaration, recorded on December 24, “sought to compensate for the lacunae” in the previous two, Hegde states. This declaration was given through words and gestures for Jyoti was in no condition to speak. It completely glossed over the evident contradictions in the first two statements, especially because leading questions were asked, and no questions regarding the differing versions were put forth.

The death penalty, if executed, is an irreversible process, and hence it is incumbent upon the court to ensure that “procedure established by law”, as required by the constitution, is strictly followed in both letter and spirit. By raising pertinent and disturbing questions regarding both the conviction and the sentencing, the amicae’s submissions are testing whether the Supreme Court goes by the rule of law or succumbs to the whiplash of mass hysteria and the public’s desire for vengeance.