Above: A man beats an effigy of a rapist at a protest against the rapes of minor girls/Photo: UNI

Madhya Pradesh seems to be in a hurry to award the death penalty to rapists of minors. In the process, are due processes of law being followed?

~By Rashme Sehgal

While justice delayed is justice denied, what happens when justice is delivered without following the due processes of law? This is what is happening in Madh­ya Pradesh, the first state to pass a law awarding death sentence to rapists of minor girls. The law was passed in Feb­ruary 2018 and already 12 death sentences have been handed out.

Some of the accused are in their early twenties, while there is one 19-year-old. Most come from extremely poor socio-economic backgrounds and could not even get lawyers to defend themselves against these charges. This could well explain why the sentence of 24-year-old Motilal Ahirwar was passed within four days of the case being admitted in the lower court. It was admitted on August 4 and the sentence was passed on August 8.

While the trial of Rajkumar, an auto­rickshaw driver who was accused of raping a four-year-old girl on July 4, lasted five days, the verdict was given on July 27. As neither he nor his family could afford a lawyer, he was allowed one free of cost from the MP State Le­gal Services Authority. The lawyer assigned to him, BM Rathore, revealed that because of the speed with which the trial was conducted, he didn’t even have time to speak to the accused.

Madhya Pradesh accounted for the highest number of rape cases in the country in 2016—4,882 out of 38,947, according to the National Crime Records Bureau. But what is actually happening is a mockery of such trials. Activists who had fought for more strin­gent punishment for rape cases are aghast at the manner in which the rape law is being implemented.

Dr Ranjana Kumari, who heads the Centre for Social Research, believes these verdicts are nothing more than “a mockery with the courts playing to the political gallery. At this rate, we will soon hear of thousands of such verdicts from across the country. In the police registry, there are 4.5 lakh names of men accused of rape during the past decade. If this goes on, will the state take responsibility for killing so many (rapists) in future?”

Or take the case of Irfan Mewati, 20, and Asif Mewati, 24, who were accused of raping and killing a six-year-old girl in Mandsaur on June 26. The local bar association passed a resolution not to defend them and the lawyer provided by the state said that because of the strong public sentiment against them, they could not produce a single witness. The death sentence was passed on them on August 21.

Then there was the case of Jitendra Kushwah, 25, who was accused of raping and killing a six-year-old girl on June 20. He was sentenced to death on July 27. Again, no lawyer was willing to defend him.

Arunachal Pradesh, Rajasthan and Haryana too passed a similar law earlier this year whereby men convicted for raping a child below 12 years will be served the death sentence. The first sentence under the new law in Rajasthan was awarded to Pintu, 19, who had raped a seven-month-old child in Laxmangarh area on May 9. A special court in Alwar conducted daily hearings and he was sentenced to death on July 18.

While Kumari said that in no case was she condoning the crime, the guilty must be punished but through due process of law. “In all such cases, the accused have the right to appeal to higher courts and the prosecution will have to see the evidence before such a sentence is executed,” she said.

Compare these fast-track trials to what happened between 2004 and 2018, when only four death sentences were carried out in India, she said. Three were terrorists, while the fourth was Dhananjoy Chatterjee, who had reportedly raped and murdered a 14-year-old girl.

Senior advocate Rebecca John also expressed concern at the string of such judgments issued by lower courts in Madhya Pradesh. “This is nothing but a gimmick in this election year. Women’s safety should be a top priority for any government, but this is hardly the way to show that they mean business. These verdicts are nothing but an abdication of the principles of natural justice. Every individual has the right to a fair trial,” she said.

Swetashree Majumdar, a young lawyer who had worked on preparing the Justice Verma Committee report that made recommendations on rape, police reforms, providing quicker trials and increased punishment for those who commit crimes against women, believes the government has not collated any evidence on whether the death penalty acts as a deterrent in cases of rape. “We have no statistics to show that the death sentence helps reduce rape. Even if we take the examples of our neighbours—Pakistan, Bangladesh and Afghanistan—all of whom hand out the death penalty for rape, we find that it has not acted as a deterrent, with the system desisting from handing out these convictions,” said Majumdar. “To create a credible legal justice system, we need expeditious trials with proper evidence collection systems in place. The biggest loophole for evidence collection re­mains the unprofessional manner in which it is gathered. We cannot focus on speed at the cost of content. The evidence gathering process must be done in a scientific manner.”

The cabinet had cleared an ordinance in April 2018 providing lengthy jail terms and even the death penalty for sex offenders convicted for raping girls below 12 years. The ordinance sets out life sentences for the entire natural life of a convict and rules out anticipatory bail for rape or gangrape of a girl less than 16 years. But the key question experts are asking is what has been done to beef up the system.

“The cops are the same. The infrastructure is the same,” said Majumdar. “The government has not increased the numbers in our judiciary nor trained the police force to create any meaningful change. This speed of conviction has not come about because of any organic change. It sounds contrived and is therefore dangerous. All this is being done only for optics. Unfortunately, we have become a generation that wants instant gratification.’’

This has obviously not worked in other countries. Experts working on this issue in Pakistan, Bangladesh and Afghanistan, find that the enforcement agencies there, including the judiciary, are wary of handing out the death sentence except in the most heinous cases.

But in India, it seems to have worked the other way—handing out summary justice instead of following due processes of law.