Inconsistencies in award of death penalty re-opens debate on capital sentence: convictions in Jyoti Singh and Bilkees Bano cases

In an appeal against the death penalty by the four convicts in Jyoti Singh’s gang rape, the Supreme Court has upheld the death penalty. The homicidal gang rape of a 23-year old girl in Delhi led to momentus public outrage, propelling the enactment of longstanding reforms in criminal laws relating to sexual assault in March 2013. Unfortunately, the demand for harsh punishments and death penalty has persisted in public and judicial discourse despite evidence showing that certainty of prosecution rather than harsh punishments is the best form of deterrence. The Trial Court in awarding capital punishment to the accused justified it on grounds that the brutal gang rape was an affront to the “collective conscience” of the country. The Delhi High Court and now the Supreme Court have upheld the death sentences.

The case of Bilkees bano gang rape (where several murders were also committed) brings out the inconsistencies in award of dealth penalty. The gang rape occurred as part of the rioting in 2002 in Gujarat, when Bilkis was five months pregnant. A truck in which she and her family members were travelling was attacked by an armed mob. That killed fourteen family members including her daughter and mother, gang raped her, and left her for dead.

The case was successfully prosecuted only on National Human Rights Commission’s petitioning the Supreme Court that directed the CBI to probe the matter, shifting the case to Maharashtra in 2004 to ensure an unbiased trial. This case is significant, being not only being only ever conviction for gang rape in communal riots, but also one where state officers were convicted for tampering with evidence. Bombay HC has upheld the conviction of eleven accused in the Bilkis Bano gang rape case, and has overturned the acquittal of seven others – five policemen and two doctors, who have been convicted of tampering with evidence and not performing their duties. .

While it is laudable that the Bombay HC rejected death penalty upon the accused persons, this case brings out inconsistencies in the legal rationale for ‘rarest of rare’ case on which dealth penalty is justified.

Mukesh and Ors v State of NCT of Delhi 2017(5)SCALE506 [Supreme Court of India]

Jaswantbhai Chaturbhai Nai and Ors. v. State of Gujarat and Ors. MANU/MH/0889/2017 [High Court of Bombay]