Not many remember that 40 years before the horrific events of December 16, 2012, there was another incident, where a girl even younger than Jyoti Singh was raped.
Her name was Mathura and she was raped by police constables.
She survived and appealed to our courts but did not get justice.
Mathura’s journey through the criminal justice system however, gave rise to a women’s movement that spanned the whole of India and led in 1983, to groundbreaking change in the law on sexual violence against women.
It also inspired an extraordinary act of courage from four law professors who dared to raise their voices against the judiciary and pursue legal reform.
Join us to learn from Padma Shri Professor Upendra Baxi, Dean of the Delhi University Faculty of Law Professor Ved Kumari, and Senior Advocate Rebecca John, the story of Mathura’s rape, its transformation of our vocabulary on sexual violence, the changes it brought about in the law, and the inspiring personalities who made it happen.
I 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?
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”.
One 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 myLaw.net.)
Around 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).
Secondly, 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.)