Analysis of Death Sentence in Nirbhaya Rape Case

Page 2265 - 2283

DOI:

https://doij.org/10.10000/IJLMH.112772

INTERNATIONAL JOURNAL OF LAW

MANAGEMENT & HUMANITIES

[ISSN 2581-5369]

Volume 5 | Issue 1

022

2022

International Journal of Law Management & Humanities

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2265 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

Analysis of Death Sentence in Nirbhaya

Rape Case

ESHITA BAGHEL

ABSTRACT

In March 2020, when the accused were executed, it was hailed that justice was done to

Nirbhaya. However, the point is whether the justice was actually done in its true sense?

The post-Nirbhaya period observed huge amendments in rape laws and more judicial

sensitivity to address the issue. With this, a parallel rise in the number of cases could also

be seen. Therefore, it is important to analyse the Nirbhaya verdict and the legal

modifications. It is also important to see why despite such development, the issue of rape

has worsened since 2012. From this, only better solutions can be provided.

This work is analyses the death penalty in Nirbhaya Rape Case. In this, it covers how the

sentence was imposed what post-sentence procedures were adopted before they were

finally executed. The death sentence of four convicts is hailed as justice to Nirbhaya. This

work analyses whether a public celebrated death sentence is a solution to the problem of

rape.

I. INTRODUCTION

Nirbhaya Rape Case was one of the most brutal rape ever happened in rape history. It shocked

the conscience of every stratum of society. The Act was so brutal that in the judgement, Justice

Dipak Mishra remarked that it seems as if we are living in a totally primitive and under-

civilised society. The crime took place on December 16 2012. Soon after the incident, massive

protests, media coverage, and political pressure led to many significant developments in the

law. On March 20, 2020, the four accused were finally executed.

The crime was such a dastard

event that it was high time to relook into the sexual offences against women and children. In

the light of this, this work focuses on the entire legal battle in Nirbhaya Rape Case, a significant

development in Rape laws, and how far have these development helped in tackling sexual

offences in the country. From this analysis, the problem is analysed, and solutions are provided.

(A) Statement of Problem

In March 2020, when the accused were executed, it was hailed that justice was done to

Author has pursued B.A.LL.B. from Rajiv Gandhi National University of Law, Punjab, India.

Mukesh v. State, NCT Delhi (2017) 6 SCC 1

2266 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

Nirbhaya. However, the point is whether the justice was actually done in its true sense? The

post-Nirbhaya period observed huge amendments in rape laws and more judicial sensitivity to

address the issue. With this, a parallel rise in the number of cases could also be seen. Therefore,

it is important to analyse the Nirbhaya verdict and the legal modifications. It is also important

to see why despite such development, the issue of rape has worsened since 2012. From this,

only better solutions can be provided.

(B) Research Question

This work focuses on analysing the death sentence of four convicts in the Nirbhaya Rape Case.

In this, following are the research questions

• What were the main legal issues which arose in the Nirbhaya Rape Case?

• How was the death sentence imposed in this case? What post-sentence procedure was

adopted?

• Whether stricter punishment like the death penalty actually sufficient to address the

issue?

• What were the legal changes brought by Nirbhaya Rape Case? How far were they

effective?

• What is the main problem behind the rising number of rape cases even in the post-

Nirbhaya period?

• What further solutions are required?

The objective of this work is to analyse the whole judicial battle in the Nirbhaya Rape case

from December 2012 till March 2020. From this, the work aims to analyse whether a death

sentence is sufficient to address rape cases in the country. If the answer is no, then what

solutions should be adopted to solve this problem.

(D) Research Methodology

This work is analyses the death penalty in Nirbhaya Rape Case. In this, it covers how the

sentence was imposed what post-sentence procedures were adopted before they were finally

executed. The death sentence of four convicts is hailed as justice to Nirbhaya. This work

analyses whether a public celebrated death sentence is a solution to the problem of rape.

In the light of this, this work goes through Primary sources like judgements in Nirbhaya Case,

Statutes and Amendments. Further to analyse the ground reality and implications of this law,

2267 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

secondary sources like research articles, interviews, newspaper reports, etc., are analysed.

(E) Scope of Study

In this research, the issues relating to a death sentence in the Nirbhaya Rape are analysed. Death

Sentence covers i. how the death sentence was imposed; this part covers the existing position

of death sentence and how it was applied in the present case, and ii. the post-death sentence

remedies available to the accused, this part focuses on what remedies are available to a death

row convict and how these remedies were utilised in the present case. Further, the work focuses

on the impact of the Nirbhaya Rape case and tries to answer whether the death sentence or

Amendment in Criminal Law sufficient to prevent rapes in India. In this, various rape incidents

post-Nirbhaya are analysed.

(F) Limitation of Research

The present research widely covers the legal implications brought by Criminal Law

Amendment Act. In this, important laws and sections are analysed in light of the current

analysis. However, the study does not analyse the individual provision relating to sexual

offences. Law is studied in a wider aspect, but the individual provision, along with its

background and earlier Amendment, is not covered in this work. Further, some statistical data

is used in analysing the impact of the Nirbhaya Rape case. But empirical analysis is not a prime

focus of this work.

(G) Chapterisation Plan

This work first analyses the Case of the Nirbhaya Rape Case. Chapter II deals with the Facts,

Procedural History and Decision in Nirbhaya Case. Further, Chapter III discusses the

Imposition of Death Sentences in the Nirbhaya Rape Case, and this is followed by the post-

Death Sentence procedure in Chapter IV. Then Chapter V deals with Legal Changes brought

by Nirbhaya Rape Case. Chapter VI tries to answer were these changes sufficient to tackle the

rape problem in India. If not, then what are loopholes in the existing situation. After analysing

these, suggestions are made under Chapter VII.

II. BACKGROUND

(A) Facts

On December 16, 2020, the four accused Ram Singh (later he committed suicide), his brother

Mukesh Kumar, Vinay Sharma, Pawan Gupta, Akshay Thakur, and a Juvenile Offender were

driving a bus in Delhi. They gave a ride to the victim and her friend. The group brutally raped

the victim in the bus while it roamed around in Delhi. The rape was committed in a very

2268 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

barbaric and shocking manner. Foreign objects were inserted in the victim’s private parts.

Medical examination showed that several bite marks were found all over her body, including

private parts like breasts, vagina, etc. the Act was a totally savage act. Further, the accused did

not stop here. After the incident, they threw the ravaged naked body of the victim and her friend

in the extremely cold weather at night. They did not stop here and tried to run over the bus over

the lying helpless victim and her friend. It was luck that they could not succeed in killing them.

(B) Procedural History

After this case, in January, the then Chief Justice of India, Justice Altamas Kabir, inaugurated

the Fast Track Court for speedier disposal of sexual offences cases. The FIR was filed on

January 2 2013; the court took cognisance in January and convicted the accused in September.

Hence, in only 9 months, the whole criminal trial was completed in this historic case. Death

Sentence was awarded, and as per the requirements of Code of Criminal Procedure, 1973,

reference was made to Delhi High Court. The court confirmed the Death Sentence of the four

accused in March 2014.

Then, the four accused appealed the death sentence in the Supreme Court. From March 2014

to May 2015 and upheld the death sentence. In this, the court deeply analysed the aggravating

and mitigating factors in the factual matrix of this case. The court observed that this case falls

under “rarest of the rare doctrine” and creates a “Tsunami of shock.”

After this, the defence counsel used a bunch of constitutional remedies like review petition,

curative petition, mercy plea, etc. Here, the accused created the mockery of the entire legal

process by

• Using remedies of different accused at different dates so as to delay the entire process.

• The grounds in appeal, review and curative petition were prima facie baseless.

Considering the requirement of the Criminal Justice System, the court gave the due opportunity

to the accused even though it resulted in delay. The court properly analysed each and every

petition and rejected them. Firstly, in the appeal, the entire issue was death penalty was

considered. Arguments were heard for about a year, and then the entire jurisprudence of the

death penalty was studied. The court again affirmed the death penalty. The 3 different review

petitions were decided after considering the existing law. However, in the present case, it was

ostensible to reject them all. The curative petition prima facie did not fulfil the requirements of

the established principle; hence it was rejected. After this, the mercy plea was also rejected by

2269 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

the president and the four accused were finally hanged on March 20 2020.

III. IMPOSITION OF DEATH SENTENCE

The court discussed the existing legal position with respect to a death sentence, and the

principles were applied in the present case.

(A) Current Legal Position

Death Sentence as a form of punishment has been a debated topic. Its constitutionality is

challenged on the basis of grounds under Articles 14, 19, and 21. It is argued that the death

sentence is arbitrary(against Article 14), it challenges a person’s right to express

himself(Article 19), and is against the right to life(Article 21). The constitutionality of the death

sentence came up for the first time in the case of Jagmohan v. State of UP.

In this case, the

court held that the death penalty is constitutional. As the sentence is imposed by applying

judicial discretion, hence it is not arbitrary. In Rajendra Prasad v. the State of UP,

the court

stood against the idea of the death penalty. It held it unconstitutional for the first time. Justice

Krishnya Iyer observed that

1. Death Sentence should be imposed in extra-ordinary cases only

2. “Special Reasons” must be recorded

Then, in the landmark case of Bacchan Singh v. the State of Punjab,

the court, by the majority

of four is to one, held the death penalty as constitutional. Justice P.N Bhagwati gave the

dissenting opinion. The following legal principles were set by this case

1. Crime and not the criminal test in awarding the death penalty

2. Life Imprisonment is the rule, and death is an exception

3. The death penalty should be imposed in “rarest of the rare case” only

4. In this, a balance between the aggravating and mitigating factors should be done

a. Aggravating factors are the factors that support the imposition of a death

sentence. They are used by the prosecution. The severity of the crime, the degree

to which it was committed, prior conviction, etc., all account for aggravating

circumstances. Other examples are Seriousness of Offence, Victim, Victim

being a public servant

(2017) 6 SCC 1

AIR 1973 SC 947

(1979) 3 SCR 646

AIR 1980 SC 898

2270 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

b. Mitigating Factors support the defence. It opposed the imposition of

punishment. Possibility of reform, infirmity or disease of criminal are examples

of mitigating factors

What is the rarest of the rare case depending upon the facts of each case? In Macchi Singh v.

the State of Punjab,

Justice Thakkar gave five categories of cases that fall under rarest of rare

cases. These are

1. Manner of Commission of Crime

2. Motive of Crime

3. Magnitude of Crime

4. Socially abhorrent nature of the crime

5. Personality of Victim

(B) Imposition of Death Sentences in the Present Case

Taking note of the legal position, the Fast Track Court upheld the death sentence. The Delhi

High Court confirmed it in reference to the High Court. This point was again raised in the

appeal; the Supreme Court gave sufficient hearing and analysis on the matter and confirmed

the sentence.

In the present case, the court noted the following facts

• Medical evidence showed the presence of severe bite marks all over the victim’s body,

including private parts

• Foreign Element was inserted in the most brutal manner that part of her intestine was

ruptured

• After the gang rape, the victim and her friend were thrown into the extremely cold

weather on a chilling night

• In order to hide the crime, the accused tried to run over the bus and tried to kill the

victim and her friend

The court noted these facts as aggravating circumstances. Further, it observed that the rape

itself is an aggravating circumstance.

The Counsel of the accused argued the following as mitigating factors

1983 SCR (3) 413

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• The accused is the sole bread earner of the family

• No prior history of committing a crime

• They being of very young age

• Loopholes in Investigation

The court held that there is no balancing of the aggravating and mitigating factors. Justice

Dipak Mishra observed that the crime was committed to show a clear Act of savagery. The

commission of such Act makes it appear that our society has not developed since the time

human was uncivilised.

In this case, one of the accused was a juvenile in conflict with the law, and his trial was

conducted by Juvenile Justice Board. Another accused, Pawan Kumar Gupta, raised the plea

of juvenility. It was contended that on the date of offence, he was 16 years. In this, he relied on

School Leaving Certificate. This plea was rejected on merits by Juvenile Justice Board, by

Patiala House Court in appeal, by Delhi High Court in revision, and by Supreme Court through

SLP. Here, the question of age was a question of fact. For this, the investigation was directed

to determine the correctness of age. The Investigation report submitted that the accused was

not a juvenile. Since this report was itself not contested; hence all the courts in the hierarchy

rejected the petition.

IV. POST-DEATH SENTENCE PROCEDURE

In this case, the remedies in respect of the jurisdiction of the Supreme Court were taken. These

remedies are reviewed and curative petition. There are other remedies like remission and

commutation, etc. however, these were not utilised in this case. In this chapter, all the post-

death sentence remedies are analysed.

(A) Review Petition

This is given under Article 137 r. w. 145 of the Constitution and Supreme Court Rules, 2013.

Under this, the final decision of the Supreme Court is reconsidered by the same bench of the

court. The review petition must be filed within 30 days from the date of the decision. The object

of review is to correct errors appearing on the face of it. It is to rectify gross miscarriage of

justice. Review is totally different from the appeal in disguise. In appeal, matter can be

appreciated on evidence, re-trial can be ordered. However, in review, the only purpose is to

Pawan Kumar Gupta v. State NCT, Delhi 2019 SCC Online Del 11870. Appealed to SC 2020 (2) SCC 803

2272 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

correct a gross violation of principles of justice. Hence, the court does not delve into the aspect

of evidence.

According to Supreme Court Rules, Order XLVII, the review is allowed in civil cases when

grounds mentioned under Order XLVII; Rule 1 are fulfilled. And in the “criminal proceeding,”

there must be “error on the face of the record.” Thus, it is the discretion of the court to allow

or not allow the review petition. Through various judgements of the Supreme Court, the

following three grounds are mentioned:

• The discovery of new and important matter or evidence which, after the exercise of due

diligence, was not within the knowledge of the petitioner or could not be produced by

him;

• Mistake or error apparent on the face of the record; or

• Any other sufficient reason that is analogous to the other two grounds.

Here, “any other sufficient reason” means other sufficient ground analogous to first to grounds.

Review Petition in Present Case

In three different Review Petitions, A.K. Singh v. NCT, Delhi,

Mukesh v. NCT, Delhi

Vinay

Sharma v. NCT, Delhi.

On this grounds, like a disease of accused, accused not residing in

Delhi, accused being only bread earner of the family, etc., were made. The Supreme Court

observed that these grounds were properly considered in High Court reference and Supreme

Court appeal. Hence, the review is not permissible.

(B) Curative Petition

A curative petition is nothing but a review of the review petition. This is not defined anywhere

in the constitution but is judicially evolved. In 2002, in the case of Rupa Ashok Hurra v. Ashok

Hurra,

the court invented this concept. In this case, the question was whether there was any

further remedy against the final decision in the review petition. Here the concept of the curative

petition was brought forth. According to the court, this concept is derived from Inherent powers

under Article 142 of the Constitution. The purpose of a curative petition is to cure abuse of

process and gross miscarriage of justice. It is totally curative in nature; hence while exercising

this jurisdiction, the court cannot ignore the rights of a party. The court observed that even

though enlisting all grounds on which curative petition may be entertained is not possible,

2020 (3) SCC 431

2018 (8) SCC 149

2018 (8) SCC 186

AIR 2002 SC 1771

2273 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

certain broad parameters can be laid. These parameters are as follows:

• Application is generally rejected unless very strong reasons exist.

• The petitioner has to prove that there was a genuine violation of principles of natural

justice.

• The petition should specifically state that the grounds mentioned in the curative petition

were taken in the review petition and were dismissed by circulation

• The curative petition must be certified by a senior advocate.

• It must be circulated to 3 three senior-most judges in addition to the judges who passed

the impugned judgment. If the majority of the judges agree that the matter needs a

hearing, then it would be sent to the same bench.

• Exemplary costs could be imposed by the court on the petitioner if his plea lacks merit.

Apart from this case, Order XLVIII of Supreme Court rules deals with the aspect of curative

petition. In this, identical conditions are provided.

Present Case

In this case, three curative petitions were filed on different dates. These were A.K. Singh v.

NCT, Delhi,

Mukesh v. NCT, Delhi,

and Pawan Kumar Gupta v. NCT, Delhi.

It could be

prima facie observed from the petition that none of it fulfilled the grounds of the Rupa Ashok

Hurra case. Hence, all of these were rejected.

After all the remedies of the death row convict are rejected, the only option left is Mercy

Petition. This petition means that the accused agrees that he has committed a crime, but because

of certain reasons, he should be given “Mercy” or “daya.”Thus, it is nothing but an act of

grace. The object of this is that judicial decisions might be legally sound, but they might be

unjust from the perspective of the accused. Hence, he can claim Mercy from the executive, i.e.

President and Governor. The President and Governor derive this power from Articles 72 and

161 of the Constitution.

The pardoning power is an act of grace and cannot be claimed as a matter of right.

The remedy

2020 SCC Online SC 108

2020 SCC Online SC 230

2020(4) SCC 54

Kehar Singh v. Union of India 1989(1) SCC 204

2274 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

under 72 and 161 is entirely discretionary, and no reasons need to be provided.

In Dhananjoy

Chatterjee v. State of West Bengal,

the court observed that curative petition powers are

exercised by the Central and State governments and not by the President or Governor on their

own. Further, these powers are subject to judicial review. This was held in Maru Ram v. Union

of India

and Kehar Singh v. Union of India.

In Shatrugan Chauhan v. Union of India,

the court gave various guidelines in respect to a

death sentence. As far as mercy petition is concerned, the court laid down the following

• The basic human rights cannot be denied even to death row convict

• He should be communicated about the rejection of the mercy petition.

• Minimum 14 days notice must be provided before his execution. By this, he has a

chance to make his grace with god, be mentally prepared, and live his last moments

properly.

• The convict must be allowed to meet his family members before his execution.

Mercy Petition in Present Case

Earlier, President Ram Nath Kovind, in an interview, said that rape convicts under POCSO

should not be granted Mercy at all. In this case, all the mercy petitions were rejected. Then,

Writ Petitions challenging the rejection of Mercy Plea were filed. However, the same was

rejected as well.

(D) Other Remedies

These remedies are also available to death row convicts. However, these were not utilised in

the present case.

Commutation

Under Section 433 Code of Criminal Procedure (Cr.P.C.) and Section 54 of Indian Penal Code,

1860(IPC), the appropriate government may commute the sentence of death into any other form

of punishment provided in IPC. When this is done, Life Imprisonment means at least 14 years.

After this period, he becomes eligible to apply for another sort of remedy.

State vs Jasbir Singh @ Billa And Kuljeet or Ranga Billa Case ILR 1979 Delhi 571

(1994) 2 SCC 220

(1981) 1 SCC 107

1989(1) SCC 204

(2014) 3 SCC 1

The Code of Criminal Procedure, 1973, No. 3, Act of Parliament, 1973, S. 433A.

2275 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

V. LEGAL CHANGES THROUGH NIRBHAYA RAPE CASE

After the Nirbhaya Rape case, many significant changes were made in the law. Justice Verma

Commission was set up to analyse the existing laws. It recommended the enhancement of

punishment for committing rape and for causing death in rape. It was extended to 20 years

maximum imprisonment in the former case and Life Imprisonment in the latter. On the basis

of the recommendation of the commission, the Criminal Law Amendment Act, 2013 or

Nirbhaya Rape, was brought to force.

(A) Nirbhaya Act or Criminal Law Amendment Act, 2013

This Act brought various changes in the Indian Penal Code(IPC), Code of Criminal

Procedure(CrPC), Indian Evidence Act(IEA) and Protection of Children from Sexual Offences

Act(POCSO). The following are the important changes in the respective law.

i. Redefined Rape: The Amendment widened the definition of rape. Now, acts additional

to penile-vaginal penetration or sexual intercourse also come under the ambit of rape.

ii. Punishment of Rape: The punishment of rape was increased to a minimum

imprisonment of 20 years. Aggravated forms of rape with more stringent punishment

were added, such as Gang Rape, Rape of Minor, etc. Even a death sentence could be

imposed in case of rape of a girl below 16 or 12 years.

iii. Age of Consent increased from 16 to 18 years: Thus, statutory fiction, consent my girl

below 18 is not considered as consent at all.

iv. Insertion of New Offences: Certain acts were not as serious as rape but were important

factors behind the increase in rape. These acts include stalking, voyeurism, acid attack,

trafficking, etc. The Nirbhaya Act not only worked on rape but also on these ancillary

factors which contribute towards rape. The Amendment made all these separate acts

offences so that the basic factors behind the sexual offences are subverted.

v. Medical Help and Justice were made easier: New Sections 166A and 166B cast a

duty on the hospital and the police to assist the victim. The hospitals have a duty to treat

the victim, and the police have a duty to register FIR. Failure or neglect would attract

penal consequences.

vi. Speedier Investigation: The investigation in rape cases must be completed within a

deadline of 2 months.

The Criminal Law(Amendment) Act, 2013, No. 13, Act of Parliament (2013).

2276 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

vii. Medical Examination: In this, the two-finger test made the victim uncomfortable filing

the case. This test was removed.

viii. Evidence: The provisions of the evidence act were amended. Now, it is mandatory for

the court to presume that victim did not consent in rape cases falling under S. 376(2)(a)

to (n).

Now it is for the defence to prove that the victim consented. The victim need

not prove the absence of consent in such cases. Further, to prove consent, the defence

cannot produce evidence or cross-examine the rape victim in respect of her immoral

character or previous sexual experiences. It was felt that such questions made the victim

uncomfortable, and this was one of the reasons why the victim was reluctant to file a

complaint.

(B) Fast Track Courts

Chief Justice inaugurated the fast track court to speedily try the Nirbhaya Rape Case. The court

did a commendable job, and it completed the whole trial 6 months and sentenced the accused

to death after 3 months.

Nirbhaya Fund was created by the government to financially assist the states in taking measures

relating to women’s safety and security, helpline number, etc. However, in reality, this fund is

often criticised for being under-utilised. Data shows that 89% of the fund is not utilised by the

state. No state has utilised such funds beyond 50%.

(D) Criminal Law Amendment Act, 2018

In 2018, the Criminal Law Amendment Ordinance was promulgated. Later, it took the form of

the Act. This Act was not a direct consequence of the Nirbhaya Rape Case. But nevertheless,

it is important to discuss in analysis. This Act brought more aggravated forms of offences under

rape and also made some alterations in procedural laws. The following modifications were

made by the Act:

i. Insertion of Aggravated Forms of Rape: Rape of Minor under 16 years and Child

under 12 years was inserted aggravated form of rape. Further, 2 offences dealing with

aggravated forms of Gang Rape were also included.

The Indian Evidence Act, 1860, No. 1, Act of Parliament, 1860, S. 114A.

TOI Correspondent, How Nirbhaya case changed rape laws in India, TIMES OF INDIA, (Sept. 28 2020 7:50

PM), https://timesofindia.indiatimes.com/india/how-nirbhaya-case-changed-rape-laws-in-

india/articleshow/72868366.cms#:~:text=On%20March%2021%2C%202013%2C%20the,death%20for%20repe

at%20rape%20offenders.&text=She%20died%20earlier%20at%20a%20hospital%20in%20New%20Delhi.

2277 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

ii. Timeline for disposal in appeal: S. 374 and 377 of Code of Criminal Procedure, 1973

were amended. Now, appeal in rape cases needs to be disposed of within a time period

of 2 months.

iii. Bail Provisions: In order to ensure that the accused is not set free by bail, the bail

provisions were made strict in rape cases. Now, bail in such cases requires 15 days’

notice from Public Prosecutor. Further, at the hearing of bail application, the presence

of information or an authorised person is necessary. Hence, the victim has an

opportunity to oppose the bail to the accused.

Further, while passing this ordinance, the government made a policy change in respect of rape

cases. It has decided to come up with more fast track courts to try rape cases. According to

government officials, till now, there are around 524 fast track courts that try cases in respect to

women, Scheduled Caste and Scheduled Tribes, marginalised and senior citizens.

Now, the

aim is to establish 1023 more fast track courts to deal with offences of rape and POCSO. This

new scheme provides for improving infrastructure and prosecution machinery, the number of

judicial officers, the additional post of public prosecutors, investigators, special forensic kits,

etc.

VI. ANALYSIS OF THE IMPACT OF THE NIRBHAYA RAPE CASE

Nirbhaya Rape Case and the follow-up amendments did bring certain positive changes.

Although rape cases are increasing, the prosecution and trial of such cases cannot be ignored.

Nirbhaya Rape Case and supplemental Amendment gave women the voice to fight against

injustice. In an interview, Sunita Menon, Director of an NGO working against sexual

discrimination, observed that after the Nirbhaya Rape case, a dramatic shift in social attitude

took place. Today, people do not hesitate to raise their voices against crime against women.

This could be seen in the press, social media, campaigns, etc.

Due to this change in opinion,

victims no longer hesitate to approach the police. Hence, what was silently suffered earlier is

publicly criticised today. More and more women come forward to report the crime. All these

happened mainly because of the mass campaign and fight against the injustice to Nirbhaya.

(A) How far were the amendments effective?

The Criminal Law(Amendment) Act, 2018, No. 22, Act of Parliament, 2018.

PTI, India needs 1023 special courts to try cases of rape and child rape: Law Ministry, THE HINDU (Oct. 4

2020 6: 10 PM), https://www.thehindu.com/news/national/india-needs-1023-special-courts-to-try-cases-of-rape-

and-child-rape-law-ministry/article24546440.ece.

ibid

Sameera Khan, Five years after Nirbhaya what has changed for women in public places, THE HINDU (Sept. 26

2020 8:00 PM), https://www.thehindu.com/society/five-years-after-nirbhaya/article21933310.ece.

2278 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

The increased reporting of rape crimes is celebrated. However, there are many loopholes in the

system which requires attention—delayed justice results in the victim giving up before the case

is actually decided. Implementation mechanisms have made the post-Nirbhaya amendments

futile. Statistical analysis of NCRB data along with the newspaper report highlights that the

number and severity of rape have worsened in this decade.

Several instances of rape cases, some even more brutal than Nirbhaya, were observed. In 2017,

in Unnao, a woman was gang-raped, and some of her family members were arrested and

threatened. Then, the two accused involved in gang rape were out on bail, and they put the

victim on fire so as to kill her. Later, this incident was tried by Delhi Court. A similar incident

happened in Kathua in which a minor was brutally raped. Another horrific incident came to

light when a 27 years old veterinary doctor was gang-raped in Hyderabad. Her body was burnt

by the accused—this followed a lot of criticism and social media demonstrations. The police

were criticised for not registering FIR. Later, all the accused were killed in an encounter. This

action was widely hailed because of the speedy justice to the victim.

From a legal point of

view, even though encounters are appreciated for fast action, however, it is not justice in the

true sense. The reason is conviction and sentence of the accused is the domain of the judiciary.

Principles of natural justice, the principle of a fair trial, appreciation of evidence, the

presumption of innocence and the requirement of proof beyond a reasonable doubt are

necessary for the administration of criminal justice. Moreover, the encounter might seem like

a better solution in the short run; however, in the long run, it marks the shift in the power of

the court to police. Even though, in highly publicised cases, where the guilt of the accused is

apparent, then encounter seem like a good solution than long judicial trial. However, if

encounter becomes a thing in a country, there it is highly probable that power may be arbitrarily

exercised. Encounters reflect the failure of the judicial system and the failure of people’s trust

in the judicial system. From the aspect of rape cases, encounters reflect how the law and

judicial system has failed that resort to the executive is taken then the judiciary.

There are other instances of rapes as serious as Nirbhaya throughout the country. Kathua,

Gudia, Mandsaur, etc., are not just names and places, but it reflects how rape is becoming a

reality in the country. It is not a state problem but a nationwide problem. After Amendment in

the Nirbhaya Rape case, even the penalty of death sentence was prescribed under IPC and

POCSO. Following this, various High Courts, being very sensitive of crimes against women

Sahil Sood, India: Nirbhaya Case: Do We Continue To Fail?, MONDAQ (Sept. 27 2020 7:40 PM),

https://www.mondaq.com/india/crime/928712/nirbhaya-case-do-we-continue-to-fail

ibid

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and children, have actually started imposing death sentences on the accused. However,

statistics conclusion of an increase in rape cases concludes that death sentence is not serving

any deterrent purpose.

The rising rape cases reflect how the purpose of the post-Nirbhaya

laws is frustrated.

(B) Deterrence as a Solution

One of the major changes brought by the Nirbhaya Rape Case was an increase in the

punishment of rapes. Again the statics reveals that there is the failure of deterrence theory.

Many Legal experts opine that it is not increased punishment that deters a criminal but the

certainty of punishment. Practically, many criminals opine that they can be absolved from

liability as the case is going to take many years. Even in the Nirbhaya Rape case, a lot of

delaying tactics were used by the accused, and it took seven years till the persons were

executed. Hence, all this puts a question mark on whether stricter punishment or better

enforcement is a solution?

Fast Track Courts was one of the very significant changes brought by the Nirbhaya Rape Case.

It took just 9 months to convict and sentence the accused. This had been a milestone in the rape

history of India. The reason why this case took seven years was in the stage of post-sentence

remedy. Several appeals and petitions combined with a lot of delaying tactics resulted in the

delay.

From this, a lesson to be learnt is how to address such tactical issues so that their resort

is prevented in future cases.

(D) Problems in Current Law

In the views of Advocate Rebecca John,

stringent punishment is not a solution. Measures like

time-framed prosecution and trial, non-humiliation of the victim, etc., are the solution. Even

after modification in Evidence Act, victims are still humiliated and characterised. Still, the

patriarchal notion exists, and it is the victim who is judged. Not just rape, but crimes that further

patriarchal notions are not at all taken seriously. These crimes, although they are not directly

related to rape but indirectly result in the same ground reality. For instance, crimes such as

NCRB, Crimes in India Report 2018

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, 2017. The fourth one filed on December 9, 2019

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.

PTI, Post-Nirbhaya changes in laws not yielded results due to poor implementation, says experts OUTLOOK

INDIA (Sept. 26 2020 9:30 AM), https://www.outlookindia.com/newsscroll/postnirbhaya-changes-in-laws-not-

yielded-results-due-to-poor-implementation-say-experts/1773895

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sexual harassment, eve-teasing, outraging the modesty of women etc., are not at all taken

seriously. Further, even in rape, many times, it is the victim who is blamed. For example, in

the Shakti Mills Gang rape case, it was alleged that why she went to such a lonely place. In an

Uber Cab Rape Case, the woman was blamed for falling asleep in the cab. Similarly, in

Chandigarh, a woman was raped after she took a shared-autorickshaw. A Member of

Parliament criticised the victim for taking shared rikshaws and said that she should have been

“alert and aware”.

There is a lot of problem with the implementation mechanism. This is particularly in respect

of cases that do not get as much publicised as Nirbhaya. For example, in POCSO, there is an

important provision dealing with the immediate arrest of the accused without the option of bail.

However, a study conducted by an NGO reflects that in-ground reality, the police do not

This is particularly true in rural areas. In Uma’s case, a minor girl was

repeatedly raped, got pregnant and gave birth, but even after this, no FIR was registered by the

police.

This reflects how the implementation mechanism has failed even at the pre-

investigation stage. Further, there is a lack of outreach and sensitisation amongst investigation

agencies. Due to this, many times, they do not respond in a proper manner.

Further, preventive action helps in preventing the crime itself. An example would be the

preventive procedure adopted by police so that they reach the victim on time and rapes do not

take place at all. However, the current legislation has no provisions for preventive remedy.

There is no statistical analysis of how much time the police take to reach the victim in different

cases.

Analysing these issues, in a reference case, Re-Assessment of the Criminal Justice System in

Response to Sexual Offences,

the Chief Justice of India Justice Bobde remarked that what

needs to be done is to collect information at the ground level from various duty holders such

as investigation agency, prosecution, medico-forensic agencies, rehabilitation, legal aid

agency, etc.

VII. SUGGESTIVE MEASURES

(A) Preventive Action

Effective preventive mechanism plays a significant role in the reduction of crime. It helps to

Diti Bajpai, Post Nirbhaya rape case, the laws have changed, but has the mindset? No it hasn’t Gaon

Connection, (Sept. 26 2020 9:45 AM), https://en.gaonconnection.com/post-nirbhaya-the-laws-have-changed-but-

has-the-mindset/

ibid

SMW 4 of 2019.

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prevent crime in the future. The following are suggested

• Sensitivity towards Crimes against women-not just rape, but also aspects like outraging

modesty, eve-teasing, sexual harassment, molestation, etc. A better implementation

mechanism is required in not just rape but also in these crimes.

• Police patrolling and tolerance towards such activities

• Police must reach the victim on time. There should be regular reporting of data when

the police help in the preventive mechanism.

Another important preventive measure is changing the ground reality. In this, patriarchal

notions must be addressed properly. In India, people grow in a male-dominated environment.

Due to this, many men do not get the idea of consent of women, why it should be respected,

etc. Better sensitisation and awareness is required. Here, it is important to mention the example

of Africa where sex education helped in the reduction of sexual violence against women.

This

presents a good example to India. Sex education should be made a part of the curriculum. Ideas

like respecting women treating women with certain standards of dignity and modesty should

be part of learning. Just passing a death sentence has become a futile exercise. Now is the time

to work on the basic and the root cause.

(B) Enforcement Mechanism

Better enforcement actions mean better availing of remedies. Today, women do not fear to

come forward and reporting the crime. But, even today, the trial takes a very long time. Fast

Track Courts address the issue of faster trials in rape cases. Hence, the government’s measure

of increasing the infrastructure and number of fast-track courts, particularly to address sexual

offences, is appreciated. Further, the Nirbhaya Act also provides for deadlines in investigation

and trial in rape cases. This is a very good step. From the Nirbhaya Rape case, it was observed

that the trial and investigation were actually on time. What resulted in delay was the stage of

appeal, review, etc. Hence, a better mechanism should be made so that even at the appellate

stage and post-death sentence procedures, the delays are avoided. Otherwise, the role of Fast

Track Court would be futile if appeals, review and curative petitions take time. Furthermore,

even a timeline for rejection or acceptance of mercy petition should be provided. It is true that

a mercy petition is the discretion of the executive. But this discretionary power should be

exercised within a reasonable time period.

Margi Vyas, Revisiting the effectiveness of the post-Nirbhaya Amendments, BAR AND BENCH (Sept. 26 2020

9:30 AM), https://www.barandbench.com/columns/revisiting-the-effectiveness-of-post-nirbhaya-amendments

2282 International Journal of Law Management & Humanities [Vol. 5 Iss 1; 2265]

Furthermore, digitisation is another important measure for a faster mechanism. The COVID-

19 period has opened a new era of the virtual environment. Today, a lot of work can be easily

done without physical presence. Even the Supreme Court created a record of hearing around

1000 cases till August. Hence, a shift towards digitisation will help in curbing judicial delays.

VIII. CONCLUSION

Nirbhaya Rape Case gathered media focus and political pressure. Hence, trial and sentencing

were fast and strict in it. Many people highlighted that it was also a case of delayed justice.

However, the idea is the procedure was misused and manipulated by the defence lawyer. There

was no substantial question in review and curative petition. Still, it was filed. On the one hand,

it is right to say that death row convict has the liberty to utilise all the remedy. However, here

these remedies were utilised on a groundless point. It was ostensible and apparent that review

petition and curative petition had no ground. It did not even fulfil the minimum criterion of

these petitions. After the appeal, it was not a legal battle but only manipulation and misuse of

existing provisions. Due to this, it is important that analysis of post-sentence remedies be done

so as to avoid the use of such tactics. Further, when more than one convict is sentenced to

death, and the remedies of one co-convict is exhausted. Does it mean that he will still not be

hanged till the remedy of the other convicts is also exhausted? This position needs to be

analysed and settled.

The horrific gang rape of Nirbhaya brought the focus towards tackling the rape situation in

India. Due to this, many amendments were made. However, the reality is today, the condition

of rapes has worsened. Today, every woman gets raped in 15 minutes. Even minor and infirm

persons are brutally raped. Sexual Offences against infant is increasing day by day. In 2012-

2013, when new amendments were brought, they were widely appreciated. However, after 7

years, it is the right time to check how far these amendments were effective. Today, reality

shows it has not changed much. The condition is worsening every day. A positive aspect of

looking at it is that more women are coming forward to fight against rape. Public opinion and

the press is sensitive to bringing forward the crimes against women and children. However,

another way of looking at it is the brutality of more offences brings a clear picture of how rape

is becoming today’s reality. Further, things like encounters are appreciated in public opinion.

From a legal point of view, encounters might seem plausible today, but they should not be

made a regular affair. Appreciation of encounter itself reflects the trust of people in the judicial

system of the country. Due to this, the amendments need to be studied further, and the problem

and solution analysis of rape laws in India is required.

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Imposing a death sentence seems right from a retributive angle. But from a deterrence

perspective, the death sentence had a negligible impact in reducing the crime against women

and children. Hence, a better solution apart from stringent punishment is the need of the hour.

Although this work has highlighted some of the problems and solutions in the current rape law,

however, more analysis and empirical research are also required. More deliberation needs to

be made, and policymaking is required. It is when these crimes are reduced then only true

justice to not only Nirbhaya but also Unnao, Gudia, Kathua, and many more can be done.

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