I was shocked when I heard that the juvenile of the inhumanly brutal Delhi Gang Rape Case got only three years of imprisonment.
So obviously, I was ranting about it on Twitter. That’s when I received an anonymous email by a law student (or so he claims. Yup he is a he.). His line of reasoning makes so much more sense than my ranting. You would agree too, that’s why I am sharing it here:
As a student of law, I meet many cynics & non-believers of Indian Judiciary System. We’ve heated discussions & sometimes I manage to restore their faith in law. Most of the times, we agree to disagree.
I am afraid that when the juvenile involved in Delhi Gang Rape Case, gets only three years of imprisonment, the number of cynics rise & faith in justice depletes. So, I feel duty bound to defend our Judiciary system.
I don’t think that the failure was on the part of Judges or Judiciary. I think we lapsed in making a better argument.
I haven’t read the manuscript of the proceedings of this case, so I am not totally aware of the line of arguing there, but I am assuming that following arguments were not made:
HOW A MINOR COULD BE TRIED IN IPC AS A MAJOR (ADULT)
The honorable Supreme Court in Varadarajan Case considered the girl of 17 to be major, as she had attained the age of discretion.
I am not saying that use this case as a precedent for judgement, but as a lawyer it can be used as an argument to determine the Age Of Discretion of the minor.
What was Varadrajan Case?
In S. Varadarajan v. State of Madras (1965 AIR 942). The honorable Supreme Court brought into our notice, a new term ‘age of discretion’.
In this case, a minor girl, who was allegedly taken away from the lawful custody of her guardians (criminal offense under Section 361 of Indian Penal Code, 1860) was liberally taken as a girl who had attained ‘age of discretion’ and therefore knew what was right and wrong for her.
If, we were to apply the understanding and interpretation of ‘minor’ from this case to the unfortunate Delhi Rape Case, it seems possible that the accused (minor) could have been brought under the IPC.
ARGUMENT BASED ON THE ‘SPIRIT OF LAW’
It is understandable that, this would have ignited the everlasting debate between ‘Spirit of Law’ and ‘the Letter of Law’. Here on one side, letter of law states that
Any person below the age of eighteen is a minor.
Whereas spirit of law would rather focus on:
The ability to make decisions, i.e. age of discretion.
Now, the question arises as to why is there a need to consider the offender to have attained the age of discretion?
It seems necessary because an offender, who has been proven guilty beyond reasonable doubt, will roam scot free, within a span of three years in the streets of Delhi.
Is this the result India as a nation sought when entire nation united to ensure that there are amendments made to the existing IPC? Is this the result which was sought when Justice Verma Committee was set up? Is this the result which was sought when recommendations were made by the Committee? The answer is NO.
We stood up and united for a change, a change that would ensure stricter punishments, a change that would set an example, a change, which would give us hope. But, did we witness this change?
WHOM ARE WE VALIDATING HERE THE VICTIM OR THE ACCUSED?
Though, it is not denied that in twenty first century, we do not practice Retributive form of justice (an eye for an eye type of justice), rather we are inclined towards the principle of deterrence, and keeping the social evil away from the society so that he cannot commit the offense again.
But, is this the deterrence which we wish to put on display? This allows the offender to be free within three years of his heinous crime just because the offender managed to hide under the cloak of being a ‘Minor’. This will only open Pandora’s Box where every offender will try to hide under the cloak of being a minor. This was even seen recently in Mumbai Gang Rape case, where one of the accused tried to escape the liability claiming himself to be a minor, hats off to Mumbai police, for they went out of the way to prove that offender was not.
In India, most of the cases of molestation, sexual assaults etc. go unrecorded because the victim is afraid of inaction and adverse consequences. So, in this case, where the victim’s family gathered their courage to fight for their daughter, we, as a Nation, have not given them the justice they thought the deserved.
We wonder, if any arguments were made to establish that the (minor) offender had attained the age of discretion, we wonder if it was ever brought to the notice of the court. Because, for a civil society, a person who commits heinous crime of rape, surely had attained age of discretion and therefore could have been punished as per IPC.
WHY THIS WAS SO IMPORTANT
Ideally, we prefer to use ‘letter of the law’ rather than the ‘spirit of law’ but in this case we could’ve opted for the later.
This particular case was not only appallingly brutal; it also brought the entire nation together. Not only India, but the global media was following this. (We all must have seen the BBC documentary). On international forums, people are talking if India is safe country for women (For example, the CNN post by Rose Chasm). This insecurity is leading to a decline in foreign tourists also. The whole idea of creating Justice Verma Committee was to set an example. A precedent that’ll act as a deterrent to crime. Something, that’ll restore the faith of common man in law. .For me, we failed & failed miserably in that. If only we could’ve argued our case better.