In the aftermath of the verdict

After nearly five long years, the Supreme Court on May 5, 2017, upheld the death sentence for all four convicts involved with the horrific 2012 Delhi gangrape case. In its ruling, the apex court said that its decision had taken into consideration the gruesome injuries and severe nature of the offence committed by the convicts. On December 16, 2012, a 23-year-old woman was brutally raped by six men, including a juvenile, in a moving bus in Delhi. Nearly two weeks after the incident the victim succumbed to her injuries at a hospital in Singapore.

While one convict committed suicide in prison, the minor accused was released in December 2015 after serving three years at a detention home for juveniles. It was in September 2013 that a trial court in the national capital had ordered death sentences for the convicts. This verdict was upheld by the Delhi High Court six months later. However, it was the apex court, which had issued a stay order on the sentence after a lawyer for the convicts appealed against it. Albeit faster than most cases, it has taken the Indian judicial system nearly five years to grant what many consider justice for the slain paramedical student.

The gangrape had triggered nationwide protests with many among the general public demanding better safety for women in India. In response to these protests, the then UPA government constituted a committee under the leadership of retired Justice JS Verma to come up with recommendations for the amendment to the law relating to sexual offences. On January 23, 2013, the committee submitted its recommendations to the government. It soon tabled the Criminal Law Amendment Act, 2013, in Parliament, and passed expeditiously. The law that came into force did not accept all the recommendations of the Justice Verma Committee, although significant changes in substantive and procedural law were made with respect to rape cases.

The December 2012 gangrape case verdict has also once again raised difficult questions on the measures taken by the state to ensure women's safety. Despite growing public consciousness, little has been done to improve the overall plight of women in both private and public spaces. One of the prime areas marked for change by the Justice Verma Committee is the public transport system. In its report, the committee highlighted the urgent need for greater safety measures for women, who use public transport. Unlike their super-rich counterparts, most women still use the bus, metro and auto-rickshaw to travel around the city. There are significant differences between men and women when it comes to travel patterns. Though women assume a higher share of a household's travel burden and care-taking responsibilities, they have inferior access to both public and private modes of transport, according to the Global Report on Human Settlements. Transportation systems have unfortunately taken a long time to account for these differences. The issue is one of political will and better policy implementation by the government (deregulating the outdated permit regulations on auto rickshaws and installing GPS systems in these vehicles, besides a complete revamp of the public bus system, among others). The emphasis must be on rethinking the way we understand public transport and the role gender plays. After the Nirbhaya case, there was a move to set up "panic buttons" on smartphones and linking these with GPS tracking software. The Himmat app, launched in Delhi and Jaipur recently, carries the panic button feature, which is used to send a signal to the police control room, allowing it to locate the phone and its user. Only those with a smartphone can avail of this app. Moreover, there is little information on how many times users have availed of the app and the Delhi Police's rate of response.

On the legislative front, there are glaring inadequacies in the Centre's utilisation of the Nirbhaya Fund. It was the UPA-II government, which announced the creation of a NirbhayaFund, to support initiatives towards protecting the rights of women in public spaces. But the lack of a clear mechanism to operationalize the fund has meant underutilization, even though successive governments, including the NDA government, have allocated more money. From 2013 to 2017, the total corpus of Rs 3000 crore in the Nirbhaya Fund has remained almost entirely unspent. Women safety has barely featured in the last two Budgets. The sum remains criminally underutilised. Raising the issue of marital rape is also imperative. Out political class remains guilty of not doing anything to amend the law on marital rape, despite exhaustive evidence pointing to the need for a law that punishes those engaged in such heinous acts.

Following Friday's verdict, however, many lamented the court's decision to hand out the death sentence instead of life imprisonment, including the lawyer representing the convicts. Without going into the merits of the court's decision, the past year has seen a growing clamour for the abolishment of the death penalty among certain sections. In fact, the Law Commission earlier this year, recommended the abolition of the death penalty, except in terror-related case. There are two fundamental points the draft report makes, surrounding the use of the death penalty. "The death penalty has no demonstrated utility in deterring crime or incapacitating offenders, any more than its alternative — imprisonment for life. The quest for retribution as a penal justification cannot descend into cries for vengeance," it said. The report also presents the imminent flaws of the "rarest of the rare doctrine". In fact, one could argue that the sentence handed out to the four convicts in the December 2012 case is inconsistent with the apex court's track record. Legal experts have pointed out to a whole host of past cases make this point, but there is one which is rather telling. In 2003, a minor girl was raped and murdered by a 31-year-old man. Despite the horrific nature of this crime, and a lower court's decision to send the perpetrator to the gallows, the apex court decided to commute the death sentence in 2006. It is imperative to note the court's reasons for its decision. "The manner in which the deceased was raped may be brutal, but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases," it said. The Law Commission report goes on to state that the application of the death penalty has been "excessive, arbitrary, unprincipled, judge-centric and prone to error". However, there is one section in the draft report, which captures the fundamental problem with the death penalty: "The death penalty is eminently fallible, yet irrevocably final. It operates in a system that is highly fragile and open to manipulation and mistake… The exercise of mercy powers under Article 72/161 has also failed in acting as the final bulwark against the miscarriage of justice arising from the arbitrary, unfair or wrongful exercise of the death penalty." We need a broader public debate on the death penalty.

"The manner in which the deceased was raped may be brutal, but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases," it said. The Law Commission report goes on to state that the application of the death penalty has been "excessive, arbitrary, unprincipled, judge-centric and prone to error". However, there is one section in the draft report, which captures the fundamental problem with the death penalty: "The death penalty is eminently fallible, yet irrevocably final. It operates in a system that is highly fragile and open to manipulation and mistake… The exercise of mercy powers under Article 72/161 has also failed in acting as the final bulwark against the miscarriage of justice arising from the arbitrary, unfair or wrongful exercise of the death penalty." We need a broader public debate on the death penalty.