Supreme Court of India

Delay in deciding mercy petitions as a ground for commutation – did the judiciary exceed its brief?

RichaKaur_myLawThe death sentence, one of the punishments provided under Section 53 of the Indian Penal Code, 1860 is increasingly becoming redundant. By an order dated January 21, 2014, the Supreme Court commuted the death sentence of thirteen convicts on the grounds of inordinate delays in deciding on the mercy petition.

Under Article 72 and Article 161 of the Constitution of India, the President and the governors respectively, have the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”. Durga Das Basu has stated that the object of the power of pardon by the President of India was to “correct judicial errors for no system of judicial administration can be free from imperfections.” This power however, instead of correcting judicial lacunae, has prevented victims from receiving true justice by allowing politics to affect decisions.

The President and the governors have to exercise their power to pardon on the advice of the Council of Ministers. Since the power has not been exercised expeditiously, a large number of mercy petitions are pending with the President of India. This callousness has resulted in unreasonable delays in the execution of the death sentences. Death row convicts languish in jail for more than twenty years under constant fear of death and the subsequent execution of the death sentence is cruel and barbaric.

LawSchoolInductionThe procedure commences with the filing of a mercy petition with the President under Article 72 of the Constitution. The petition is sent to the Ministry of Home Affairs in the Union Government (“the Ministry”), where the judicial division has been tasked with giving its recommendations on the petition in consultation with the concerned sate government. Thereafter, the mercy petition, along with the Ministry’s recommendations, is sent to the President’s Secretariat for a final decision. Sometimes however, even after the Ministry has made its recommendations, the President’s Secretariat does not act on the petition for an inexplicably long time.

Afzal Guru was convicted for attacking the Parliament of India in 2001. The Supreme Court confirmed his death sentence on August 4, 2005 and the date for his execution was fixed for October 20, 2006. His wife filed a mercy petition on January 4, 2006 before the President who sent it to the Ministry of Home Affairs on October 4, 2006 for its recommendations. A curative petition filed by Mr. Guru in Supreme Court was disposed of on January 12, 2007. Shivraj Patil, who was the Home Minister of India at that time, while responding to a question about Mr. Guru’s mercy petition in the Rajya Sabha said, After having seen the figures for last ten years, I would like to inform you that no mercy petition has been decided before six years, seven years….. After eight long years, the President rejected the mercy plea on February 3, 2013. Mr. Guru was executed on February 9, 2013. In this entire process, a lot of time is spent in sending the file from one department to another and vested interests and political considerations influence the final decision.

The Supreme Court’s January 21 order came in the case of Shatrughan Chauhan and Another v. Union of India and Others, 2014 (1) SCALE 437, where it framed guidelines for safeguarding the interest of death row convicts. Fifteen death row convicts had filed a writ petition seeking relief against the alleged infringement of their fundamental rights on account of the executive’s failure to dispose of mercy petitions within a reasonable time. Allowing the writ petitions and commuting the sentence of death of the petitioners to imprisonment for life, the Supreme Court observed that the right to seek mercy under Articles 72 and 161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Therefore, “when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect. Thereafter, the Supreme Court, in February 2014, asked the government to include delay as a criterion in deciding the mercy petition of a death row convict. The Court said that “the clemency procedure “provides a ray of hope” to the condemned prisoners and their family members for commutation of death sentence to life imprisonment. Therefore, the executive should step up and exercise its time-honoured tradition of clemency power guaranteed in the constitution one way or the other within a reasonable time.

The Central Government is likely to file a curative petition against this decision of the Supreme Court. In a more recent decision, Navneet Kaur v. State of NCT of Delhi and Another, the Supreme Court commuted the death sentence of Devender Pal Singh Bhullar, a Khalistani terrorist accused in the 1993 blasts in Delhi, to life imprisonment both on the ground of inordinate delay of eight years in the disposal of the mercy petition and on the ground of insanity. As a result of such leniency, a number of hardcore convicted offenders including the assassins of Rajiv Gandhi and close aides of the forest brigand Veerappan have been freed from the gallows. This has resulted in injustice to the victim or his family members.

The research done by Bikram Jeet Batra, an independent lawyer and researcher, shows that until 1980, mercy petitions were decided within a minimum of fifteen days and a maximum of ten to eleven months. From 1980 to 1988, the time taken for the disposal of mercy petitions gradually increased to an average of four years. Now, we even see delays that extend up to twelve years.

Judicial review of mercy petitions

The Supreme Court has been of the opinion that even though the power of pardon exercised by the President and the Governor is above judicial review, its manner of exercise is certainly subject to judicial review. In Epuru Sudhakar and Another v. Government of Andhra Pradesh and Others, (2006) 8 SCC 161, the Court listed the grounds on which a decision under Articles 72 or 161 may be judicially reviewed. They include:

a. Whether  the order has been passed without application of mind,

b. Whether the order is mala fide,

c. Whether the order has been passed on extraneous on wholly irrelevant considerations,

d. Whether relevant materials have been kept out of consideration, and

e. Whether the order suffers from arbitrariness.

The courts therefore, do not interfere with the decision of the executive on merits but retain the limited power of judicial review to ensure that all the relevant materials are considered before the decision is made.

After Shatrughan Chauhan therefore, the question that arises is whether the judiciary exceeded its power of judicial review. The pardoning power conferred on the executive by the Constitution is a discretionary power and the judiciary seems to be curtailing it and substituting it with its own discretion. The solution would be to prescribe a time limit within which the executive ought to decide the mercy petition.

Richa Kaur is part of the faculty at

Human Rights

Rape shield: Prohibit use of victim’s sexual history in rape trials

SuhasaniRao_RainmakerfacultyUnderstanding the need for greater awareness to deal with sexual offences has come into focus over the last two years. The law in this regard is changing. However, there still remain some gaping holes in a framework that should be comprehensive. This article explores some of the issues that remain unaddressed by the current laws in force, in India, concerning sexual offences.

Rape Shield Laws

In India, victims of sexual offences are guaranteed anonymity. Under Section 228A of the Indian Penal Code, 1860, disclosing the identity of a victim of certain sexual offences is a crime. Till as late as 2003, it was lawful to bring up the previous sexual history of a victim of rape in order to establish consent. In 2003, a provision of the Indian Evidence Act, 1882 (“Evidence Act”) was deleted in a move towards providing protection to the victims of rape. Further, Section 146 of the Evidence Act now prohibits the questioning of a victim of rape along the lines of her previous sexual history in order to prove consent, in a rape trial. These provisions together, provide a limited rape shield in the Indian legal framework.

Rape shield laws limit the ability of defendants to cross-examine complainants in rape trials about their past sexual history. They also prohibit the disclosure of the identity of alleged rape victims.

SexualHarassmentAtTheWorkplaceMOOC2The philosophy behind these laws, firstly, is that the prior sexual history of a complainant is irrelevant to the question of whether an offence of rape can be established. The facts of the particular instance should be the only evidence that determines guilt. They provide an extra layer of protection to “victim blaming”, the phenomenon of holding the victims of crimes partially or even completely responsible for the rape. The violation of their anonymity and the disclosure of the identity of a rape victim often lead to more violation through increased scrutiny and the stigma attached to the offence of rape. Moreover, given that sexual offences violate the most fundamental right of a human being to exist in peace with full bodily integrity, rape victims often feel a deep sense of fear and trauma when identifying their attackers. Maintaining the anonymity of rape victims is therefore also aimed at providing victims with a sense of security when noting their testimony.

Rape shield laws around the world

These laws trace their origins to the 1970s and 1980s in the United States of America when most of the states provided different levels of protection for rape victims such as mandatory anonymity and restrictions on the admissibility of the previous sexual history of victims as evidence in rape trials. Since then, rape shield laws have been formulated in many jurisdictions. In the United Kingdom, the Youth and Criminal Justice Act of 1999 prohibited the use of a victim’s sexual history as evidence in a trial. In New Zealand, a rape victim’s sexual history has to be vital to the context of the trial for it to be permitted in evidence. Otherwise, the law prohibits the use of such evidence. Similarly, in Australia, rape shield protection is applicable in all territories. Even Ireland, a fairly conservative jurisdiction, has rape shield protection for victims of sexual offences with very limited exceptions to the prohibition of admissibility of the victim’s sexual history as evidence.

Conflict with fair trial rights

Often however, rape shield laws present a conflict with the defendant’s rights to a fair trial, including the defendant’s right to confront the complainant and challenge the veracity of the allegation. The rape shield law in the United Kingdom for example, was read down by the House of Lords, holding that a law that bans juries in rape trials from hearing evidence that an accused had a previous sexual relationship with the accuser breached his right to a fair trial.

Thus, most rape shield laws are couched in negative terms, completely excluding the rape victim’s sexual history from being introduced as evidence. Thereafter, exceptional cases are listed where such evidence may be introduced, notable among them being situations where the defendant’s constitutional right to a fair trial may be violated.

The argument for some measure of anonymity of the defendant in trails of sexual offences is finding some ground in current debate as well. It is opined that it is necessary to keep the identity of the defendant under wraps, at least until the judgment in the case is declared. This is because the stigma attached to sexual offences can deeply affect and destroy the lives of not just the direct victims of the offences, but also the relatives and family members of the defendants.

Absence of a rape shield law in India

Indian laws provide limited protection to victims of sexual offences by prohibiting the disclosure of their identity. The need for a rape shield law in India needs to be seen alongside efforts to combat other types of secondary victimisation of rape victims. Rape victims in India would often be subject to insensitive examination and humiliation by public authorities such as medical examiners and law enforcement professionals in charge of investigating the offence, including the “two-finger test”, (“TFT”) involving a physical examination by a medical practitioner of the rape victim’s genitalia. (In India, a man cannot be a victim of rape). The medical practitioner would insert two fingers into the rape victim in order to establish the “laxity” of her muscles and determine whether the victim was “habituated to sex”. A finding that the complainant was habituated to sex would assist the defence. In fact, in such cases, the defendant would claim that any sexual intercourse between the victim and himself was consensual since the victim was “used to sexual intercourse”.  The pervasiveness of the two-finger test meant that successful prosecutions for rape were limited to instances where the victim was a virgin or at least perceived to be so, at the time of the occurrence of the crime.

The Supreme Court of India has repeatedly grappled with the TFT and has had many a scathing opinions on its applicability. A decisive change of the law occurred last year in Lillu v. State of Haryana in 2013. The Court outlawed the TFT in the following words: “…., the two finger test and its interpretation violates the right of rape survivors to privacy,  physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.”

In light of this judgment, on December 16, 2013, the Department of Health Research under the Indian Council of Medical Research issued guidelines to prohibit the use of the TFT in forensic medical examinations of victims of rape. This prohibition is now part of the Instruction Manual for Forensic Medical Examination Report of Sexual Assault (Victim) brought out by the Government of India.

It is now a medically accepted fact that the loss of virginity can occur without intercourse. Given this scientific evidence, it becomes necessary to re-evaluate the way the law perceives and protects victims of sexual offences. Discarding the use of the TFT was a small step.

There is an immediate need for clear legislative directives throughout the judicial hierarchy, the media and members of the law enforcement agencies to approach the crime of rape with greater sensitivity. It is the need of the hour to implement a humane and a sensitive understanding of the offence of rape so that a rape victim’s trauma is not prolonged through brutal investigation and trial procedures.

(Suhasini Rao is part of the faculty on

(This article was corrected on May 1, 2014 to remove an error of law. The prior version did not take into account the 2003 amendment to the Evidence Act. We are grateful to our readers for bringing this to our attention. – Editor)

Human Rights

Drug-related offences: When midnight raids without a warrant and urine and blood tests are illegal

SuhasaniRao_RainmakerfacultyRecently, questions were raised about the powers of the police and the protections available to the accused when Delhi’s law minister Somnath Bharti, accompanied by members of his party and the police, conducted an impromptu ‘raid’ on the residence of some African nationals, most of them women. Mr. Bharti supposedly took the drastic step — a raid without a warrant —following alleged police negligence of complaints made by other residents of the neighbourhood, of a drugs-and-prostitution racket in the locality.

Two statutes — Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) and the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 (“PITNDPS Act”) — govern the offences of the consumption, illegal manufacture, illegal trade, and illegal distribution of narcotic drugs and psychotropic substances in India. The NDPS Act defines offences, prescribes the procedure for investigation including searches, seizure, and arrests, and provides for punishments for each offence. The PITNDPS Act focuses on detention orders.

Somnath Bharti

Both statutes are considered draconian and Indian courts have had to read down their stringent provisions often. For instance, ‘minor offences’ — those offences under the NDPS Act that carry punishments of jail terms less than three years —are now considered “bailable” by the Bombay High Court. In another landmark pro-rights’ judgment, the Bombay High Court found that Section 31-A of the NDPS Act, which provides for the death penalty in certain situations, did not measure up to the procedural safeguards envisaged by the Constitution. It is interesting to note that almost 32 countries in the world prescribe the death penalty for drug related offences, and India is one of these.

Search under the NDPS Act
In the NDPS Act, Chapter V (Sections 41 to 68) enlists the procedure for searches, seizures, and arrests. Search_NDPSAct_drugoffences_corrected.jpgUnder Section 42 — important in the recent context — an officer may search and arrest a person in relation to a drug offence without a prior warrant between sunset and sunrise, only if there is ground to believe that the time required to obtain such a warrant will enable the person to be searched to hide or dispose off the illicit items. In such a case, the officer carrying out the search needs to record his grounds for carrying out the search before conducting the search, along with the information on which his actions are based and send this to his superior officer within seventy-two hours. Section 43 of the NDPS Act provides for searches and seizures in public places (such as hotels and modes of conveyances).

Article 22 of the Constitution of India encapsulates the fundamental rights of an arrested person to be informed of the grounds for an arrest, to be produced before a Magistrate within twenty-four hours, and to mount a defence. This constitutional protection finds application in the NDPS too.

Under Section 50, a person has the right for the search to be conducted in front of a Magistrate or a Gazetted officer. Further, the officer carrying out the search must inform the person being searched of their right to have a Magistrate or a Gazetted Officer present when the search is to be carried out. Moreover, all searches of persons must be done after they have been clearly informed of their rights. Recently in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, the Supreme Court stated that any conviction based on the recovery of an illicit item in a search conducted without informing the accused of this right would stand vitiated. It is also a legislative requirement under Section 50(4) that only women police officers may search women.

Protections during arrest

Under Section 42 of the NDPS Act, a person may be arrested without a warrant, on the suspicion of the commission of a drug-related offence. Such an arrest, however, must be immediately followed by the provision of a written order outlining the grounds of arrest and the production of the arrested person before a Magistrate.

The Code of Criminal Procedure, 1973 (“CrPC”), sets out the general criminal procedure related to most penal offences  and fills in the gaps left by the NDPS Act and the PITNDPS Act. Under the CrPC, an arrest may be made by a junior police officer without a valid warrant upon a written order containing the substance of the order for arrest. The person under arrest must be produced before a Magistrate without delay and under Section 41(1)(a) of the CrPC, a person may be arrested without a warrant if there exists ‘reasonable suspicion’ of such a person being ‘concerned’ in a ‘cognizable offence’ (where arrest may be made without a warrant). Needless to say, offences under the NDPS are cognisable.

Extra-judicial testing

New-Programme-LaunchIn recent times, India’s domestic law enforcement has shown signs of disquieting vigilantism. It is a common practise during raids for the police to require all persons present at the venue of the raid to submit to blood or urine tests. This practise is completely extra-judicial. There is no mention in the NDPS or in the PITNDPS of the immediate testing of a person in relation to a drug-offence. Unlike some other laws, such as the Motor Vehicles Act, 1939 that provides for testing for the presence of alcohol in offences of drunk driving, there are no legal provisions under the NDPS Act to permit testing for drug use.

Time and again, the judiciary has asked for strict interpretation and application of stringent laws such as the NDPS, in order to minimise the risk of human rights’ violations. Body searches of an invasive nature, and sampling of urine or blood amount to a violation of the integrity of the human body. Such acts need to be authorised by law. Without specific provisions enabling such actions by law enforcement officials, investigations become fishing expeditions in the murky waters of human rights violations. Just last year, the Supreme Court laid down extensive guidelines on the interpretation and application of the legislative provisions relevant to testing such samples in Thana Singh v. National Bureau of Narcotics. The Court also highlighted the lack of adequate Central Forensic Science Laboratories that could possibly carry out such tests with minimal interference.

While the common practise of the law enforcement authorities to subject persons to such ‘tests’ without legislative or judicial authority is high-handed, it is yet to be more strictly monitored. On the other hand, a legal provision that regulates testing strictly in drug-related offences can also be a used by suspects, since innocence can then be proved on the basis of scientific fact.

Foreigner or not, it is important to know one’s rights when faced with accusations of having committed an offence under a strict legal machinery in place to combat drug trafficking. It is hoped that those tasked with formulating, upholding, and interpreting the law, ensure procedural safeguards at every stage of the criminal justice system in favour of the accused.

(Suhasini Rao is part of the faculty on

Note: The post has been edited once since publication.

Human Rights

Should media outrage affect sentencing in criminal trials?

TennilleDuffy_authorI wish to respond to one aspect of Sohini Chatterjee’s recent post on the sentence handed down in Ram Singh and Others – the ‘Delhi gang rape trial’. She said that the judge had recognised the outrage caused by this case as an aggravating factor and seems to argue that the supposed effect of the media attention on the sentence was a good thing.

I should point out that this is, clearly, not Ms. Chatterjee’s opinion alone. Various manifestations of this sentiment have echoed across Facebook, the comments sections on blogs and news websites, and in various reports about the case. Many people feel that justice has been done and that the court, the judge, and the criminal justice system correctly responded to the outrage felt across society.

I do not think that Judge Khanna’s sentencing order reveals that it was affected by the furore across India even though I have no doubt that he was well aware of it. Whether media reports can and should be taken into account in sentencing, however, is another question entirely.

Let me state at the outset that I am passionately opposed to the death penalty. As it stands however, the death penalty is an available punishment in India, and has been confirmed as constitutional by the Supreme Court of India.

The idea that the media can, and should, have an effect on sentencing and other aspects of the operation of the criminal justice system, however, is worth examining more deeply. Firstly, can the media, and what ‘they’ are communicating, be discerned or measured? Secondly, we need to examine the notion that that the media—whoever or whatever they are—are some kind of spokesperson for society, or the conduit through which society expresses itself. And thirdly, should judges and courts —while sentencing—take into account the expression of society’s demands or desires through the media? Even this minimal unpacking of the idea begins to expose its flaws.

Let us take the first contention. Can we (or a judge in any criminal case in India) know what the media is saying about any particular case? What if the message is not unanimous? Even in a case such as this, where one might be able to readily detect an overall sense of outrage, disgust, and fury, there were other, discordant voices present across the country. We know enough of the history of how rape is treated and reported in India, for example, to know that many different attitudes—foolish, conservative, and ignorant among others—prevail. Further, what kind of media should we observe? The mainstream media and its attendant business and political interests? Facebook and Twitter posts? Independent blogs? Civil society publications? These days, anyone can be and is a commentator. How can any one person process and take all of those opinions into account?

Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.
Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.

Secondly, is the media really the conduit through which society expresses itself? I doubt that, especially in a country and a polity as diverse as India, that could ever be the case. The mainstream media certainly can’t be said to speak for all people in this country. As with all other institutions in society, the media speaks for those in power and those with influence much more than those without. And whilst I am certainly not suggesting that this case didn’t deserve the media attention it has received, I am also not the first person to observe that the media treated this case exceptionally. Yes, that may be due in part to the public outrage. But was the public outrage not also fuelled and enabled, in part, by the media attention?

Many of us are equally outraged or upset by every horrific rape and murder. Reports of fresh cases—the five-year-old-girl who was held captive and raped by a neighbour in Delhi, the reports of the rape of girls in front of their mothers during the recent riots in Muzzafarnagar, and the rape of a woman also on a bus, in Punjab, just two weeks after the Delhi incident—are seen every week across the country. Who weighs the severity of these countless cases, and measures up the column inches or television minutes to be awarded to each? What about the countless others we know that we do not even hear about? Is the consequence to be that, the more media attention a case gets, the harsher the sentence? Or, alternatively, that those who commit crimes against the powerless and those deemed somehow less worthy of media attention, receive more lenient sentences? Obviously, these cannot be results that we seek to achieve in any criminal justice system.

As a matter of general principle, judges should not be looking to the media when they are determining sentences, for all of the reasons and difficulties already described. “Trial by media” is seen as a negative phenomenon for a reason. A properly functioning court system can help avoid erroneous findings of guilt, convictions, and sentences handed down without proper recourse to facts proved beyond reasonable doubt and the imposition of unfair or inconsistent punishments. If a judge is looking to the media in some cases, how is consistency to be achieved? Which commentators’ idea of fairness or outrage is to be abided by?

Even looking at the specific comments and findings made by Judge Yogesh Khanna in this case, I do not think that we can conclude that he was looking to the reported public reaction to this case in delivering his sentence. There is a difference, seen widely across the criminal law, between judges talking about concepts such as “collective conscience” and “community feeling” and judges actually saying “I have observed that people are particularly upset about this particular incident, and that is an aggravating factor”.

SupremeCourtofIndia_aggravatingcircumstance_extremeindignation_abhorrenceOne case that Judge Khanna refers to is Gurvail Singh @ Gala and Another v. State of Punjab, a 2013 judgment of the Supreme Court that Ms. Chatterjee has also referred to in her post. In that case, the Court spoke of “whether the society will approve the awarding of death sentence to certain types of crime or not.” “While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls”.

As we can see, the Supreme Court is referring not to a specific crime or specific public expressions of outrage. They are not speaking about some way in which judges could or should react to particular, one-off instances of outrage. Rather, they are talking about a certain category or type of crime, such as the rape and murder of minor girls.

Judges are members of the community too. For better or for worse, they are given the power to impose sentences within the criminal justice system. Part of that role is that they must gauge the level of seriousness of a crime and the level of general social abhorrence of various types of crime. As much as is humanly possible, they must attempt to do so in a principled and consistent way. To look to the media to inform their sentence, or to react more harshly to highly publicised crimes, goes against all sentencing principles, and should be discouraged.

As a member of the community, Judge Khanna was entitled to take into account not only the barbaric and hideous nature of the acts that were committed by these men, but also the fact that it was the type of crime that society increasingly found abhorrent, despicable, and outrageous. On the face of his judgment, it appears he did just that – no more, no less. Given the change in rape laws following this crime, there is no doubt that this sentiment will be echoed in many cases and sentences to come.

(Tennille Duffy is part of the faculty on


Death to all – the principles of sentencing in Judge Yogesh Khanna’s award of the death penalty in the Delhi gang rape trial

SohiniChatterjeeAround 2:30 p.m. on September 13, 2013, Additional Sessions Judge Yogesh Khanna awarded the death penalty to the four accused in State v. Ram Singh, marking the end of the (fast-tracked) nine-month-long trial of the accused in the Delhi gang rape case. The judge supported his award of the death penalty using two principles.

Firstly, he relied on the notion that when the collective conscience of the community is shocked, the court should award the death sentence. If the crime has been executed in a grotesque and revolting manner, it would be a failure of justice to not award death sentence. After gang raping the victim, the four accused persons had cut open her intestines using an iron rod and eventually pulled out her internal organs with their hands.

The judge said that this case fell within the Supreme Court’s “rarest of the rare cases test” because of the display of “extreme mental perversion” and “exceptional depravity of mind”. The essential distinction here is between ordinary murders and gruesome and ghastly murders. While the former warrants a life sentence, the latter warrants a death sentence. (Cases in support can be found here, here, here and here).

fournooses_deathpenaltySecondly, the aggravating factors overwhelmed the mitigating factors. The defence had put forward various mitigating factors such as the young ages of the accused, their socio-economic conditions, their clean antecedents, and their being under the influence of alcohol at the time of committing the crime, to argue for a lesser sentence. These reasons, the judge said, were neither special nor adequate. While determining the sentence in rape cases, the relevant factors should be the conduct of the accused, the state and age of the victim, and the gravity of the criminal act. The socio-economic status, religion, race, caste, or creed of the accused or the victims should be irrelevant considerations in sentencing. (Cases in support can be found here, here, and here).

According to the judge, the aggravating factors in this case outdid the mitigating factors. The demonstration of exceptional brutality, the extreme misery inflicted on the victim, and the grave impact of the crime on social order were some of these factors.

One particular aggravating factor deserves special mention – the manner in which the crime aroused “intense and extreme indignation of society”. The imposition of the death penalty by any court is not “judge-centric”. The satisfaction of the “rarest of the rare” test largely depends on the social approval for the death sentence for certain types of crimes. The judge relied heavily on a recent decision, in which the Supreme Court said that while determining whether a particular crime warrants a death sentence or not, the court has to look into factors such as society’s abhorrence and extreme indignation towards particular crimes. In my opinion, the judge’s recognition of social responses as an aggravating factor is commendable and shows the tremendous impact that the numerous civil society led protests, demonstrations, and debates that followed the horrific rape have had. The media was the primary vehicle for the communication of these protests and this case also highlights the media’s potential to affect sentencing.

(Sohini Chatterjee is a third-year student at the WBNUJS, Kolkata. She is a member of the NUJS Law Review.)