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Whose sentence is it anyway?

The relatives of the accused, sometimes abetted by the local officials put pressure on the victim to withdraw the case by bullying and threats.

Anjali Mehta | New Delhi |

Every evening at 8 pm, the same poignant scene unfolds outside the apartments in sector 19, Dwarka, where Nirbhaya’s parents currently live. Some RWA members and Nirbhaya’s parents stand with lit candles for an hour in the cold, reminding the country’s institutions, in their usual dignified manner, that justice still eludes them at the end of seven long years. They have been holding this evening vigil for 31 days now and will continue to do so till the culprits are dealt with as per their sentence.

The group of candle bearers is growing daily. Other satellite groups have formed, in solidarity with Nirbhaya’s parents. What is unacceptable is the way the criminals are exploiting one legal loophole after another, right under the gaze of lawyers and government. Three different courts, the Sessions court, the High court as well as the Supreme Court examined the case in detail over several months and reached the same unanimous verdict of the death penalty in 2017. The law allows the filing of mercy and curative petitions after such a penalty as well as the ability to apply for presidential pardon – but within a ‘reasonable time frame’.

Secure in the knowledge that our legal system is tardy, the criminals napped for two years. Now that the date of their execution has been declared, they are filing one petition after another. Since most petitions and PILs on a common topic are clubbed together, it also seems a miscarriage of justice to allow criminals to file their applications serially rather than collectively. Are we to understand that a victim who is gang raped by a larger number of people must expect a longer delay before justice is awarded?

The judicial system must not be allowed to be subverted to give such dreaded criminals one undeserving chance at delay after another. When the same courts and government are dragging their heels over possible violations of constitutional rights of citizens a such as those protesting peacefully against CAA/NRC/NPR implementation, as well as the citizens of Kashmir; giving these people who have indulged in such a monstrous act so much judicial leeway is palpably unfair.

The Central government has demonstrated the ability to effect changes almost overnight such as in the case of demonetisation and abrogation of article 370 (which was complicated and fraught with constitutional implications). Given this background it is incomprehensible how the combined might of the Central and State governments is not able to provide justice to a forlorn, long suffering, anguished mother and father even at the end of seven years in a proven case of rape and murder.

There is a worldwide debate on whether the death penalty stands scrutiny and there are strong arguments for and against. Suffice it to say that our Indian legal system currently allows the death penalty to be prescribed for the rarest of rare cases. Rather than discussing that aspect, I would rather like to draw your attention to the ‘sentence’ meted out by criminals to innocent citizens for no fault of theirs. When our citizens’ group first met Nirbhaya’s parents a year or two after the December 2012 incident, one of the things that Badriji her father said, are etched vividly in my memory.

He said “I nearly lost one more member of my family that year”. The allusion was of course to a grief and depression so deep that it can kill a person. It is by no means easy to deal with such a great loss. Asha ji would agonize for years afterwards about the fourteen odd days she spent with Nirbhaya in the hospital when Nirbhaya was in a critical condition. She would keep remembering her desperate desire to give in to her daughter’s request of just one sip of water, which she couldn’t, given the doctors’ strict instructions to the contrary.

The mental trauma and stress which the family has undergone is tremendous. Even then, they have got back on their feet and work towards justice and empowerment for all girls. Does this long suffering mother and father duo not deserve the court and government’s empathy and support? Should they be standing day in and day out in the cold while the criminals explore one legal remedy after another, wasting the taxpayers and courts’ time and money? What makes these remorseless persons who inflicted such cruelty on Nirbaya so special that we provide them chance after chance to keep challenging their richly deserved and ethically and legally arrived at sentence?

Why are governments mulling the political advantages and timing of addressing such a grave travesty of justice rather than mitigating the suffering of the parents? When will everyone gracefully acknowledge the verdict arrived at by all the courts? When we consider the struggle of a victim of sexual assault in India, their agony is compounded multiple times after the incident, which does not allow them to put it behind them easily. The difficulties begin right from the time when the FIR is filed. Dealing with insensitive and brusque officials makes the victim feel worse.

Mental counseling is rarely provided. Then come years of court appearances where some of the illiterate victims do not even fully comprehend the court proceedings and just get the feeling that they are being given one date of extension after another as the case drags on. The defense lawyers of the accused often are brutal in the cross examination. Somehow casting aspersion on the victim’s character is a cheap and popular ploy. At home, the victim has no respite. Often insensitive neighbours avoid interacting with a ‘violated’ girl or are intimidated by the families of the accused into not meeting the victim.

The relatives of the accused, sometimes abetted by the local officials put pressure on the victim to withdraw the case by bullying and threats. The victim and their family thus live in fear and constant dread. Often, they have lifelong gynaecological or other medical problems for which they need to be on prolonged treatment and medication. Some spend a lifetime on antidepressants. Many lose out on a promising career. Instead of focusing on the human rights of criminals, why do we not vociferously argue about the right to life and liberty of the victim as guaranteed by article 21 of our Constitution?

Or the human right against cruelty in the Universal Declaration? It is truly ironical how those who brutally violate the rights of another clamour for their own rights to be protected and are listened to with a great show of fairness. Those adults who commit these heinous crimes know full well that they are punishable with severe sentences. It is their conscious choice to tempt judicial fate. But what of innocent citizens who are sentenced to a lifetime of mental agony, physical trauma or lose their lives? Did they deserve such a sentence? Are they getting any chances at being whole and healed again?

Not so. Then why an inordinate number of chances for depraved humans indulging in heinous acts? The resources in a democracy should be focused on the greatest good for the greatest majority. Sadly there is a tendency for reasons of sensationalism to direct these resources, our time and empathy towards an undeserving handful of the worst behaved citizens. It is time that this thinking changed. It is time for the victims to be supported instead. Simply, by thinking of them for a change.

(The writer is a Delhi-based medical practitioner)