On Nirbhaya - Delhi Gang Rape - Verdict
Last week the Delhi court delivered its verdict on the famous 'Delhi gang rape' case, which is also known as the Nirbhaya case. This verdict and the statement of judge as well as the sentiment of Indian crowd show how botched and wrong headed the Indian State judiciary system is. Delivering justice, judge Yogesh Khanna said, This has shocked the collective conscience of society...These are the times when gruesome crimes against
women have become rampant, and courts cannot turn a blind eye to the
need to send a strong deterrent message to the perpetrators of such
crimes...This crime in every way falls within the rarest of rare category warranting a death sentence...The increasing trend of crimes against women can
be arrested only once the society realise that there will be no
tolerance (of) any form of deviance against women (emphasize mine).
Not only this, after the announcement of the verdict, the news items report that, Cheers went up from a crowd inside and outside the Delhi courthouse when lawyers rushed out to announce the sentence.
What's wrong with this verdict? What is wrong are several things. Let's see them one by one.
First, this verdict is right because those rapists deserved death penalty, but the problem is that it is not based on any sound legal theory as Judge Khanna's statement reveals above. The judiciary system's function is to produce justice for the victims and nothing else. But here it is seen that instead of, primarily, producing justice for the victims, the judge and the judiciary system is more interested in deterring the crime! Crime deterrence can not be a prime objective of any judiciary system. At the most, it can be a by product of the justice system. Justice in this case required that those rapists' life be taken away from them - i.e., death penalty - because they took away that girl's life. They violated private property rights - and property rights are human rights - of that girl by attacking her body and killing her, and justice demanded that they be punished for this violent crime. The legal principle of lex talionis is the guide here (but also see this brilliant article of Murray Rothbard on Libertarian punishment theory, Punishment and Proportionality). Whether this punishment is going to deter other people from committing this crime in future is not a botheration of the judiciary system. Those people who are favoring a death penalty (see here) to deter crime are all wrong.
Second, the verdict statement clearly shows that judge Khanna, and with him the Indian State judiciary system, is more interested in appeasing the crowd i.e., the so-called collective conscience of the Indian society to which he frequently refers. This again is wrong. As I said above, judiciary system's job is to produce justice only. What the crowd is thinking about any case can never drive judge's verdict. The whole concept of "collective conscience of the society" is erroneous to begin with. There is no existence of any such collective conscience. Sound legal theory shows, that the case can only be between the victim and the alleged criminal. The non-existent societal conscience can never be a consideration in delivering justice to the victim. Appeasing crowd is a dangerous phenomenon.
Lastly, judge Khanna also said, that he is giving capital punishment because this is one rarest of rare case of brutality! And this legal tradition of "R-R Test" is begun by the Indian Supreme Court itself! So, according to this logic, a rape and murder which is not brutal is different from a rape and murder which is! If someone rapes and murders a girl coolly and calmly than his rape and murder is different than those Delhi gang rapists' rape and murder!? There cannot be any more twisted logic than this so-called "R-R Test" of Indian supreme court. No matter what, a rape and murder is a rape and a murder. There cannot be any exceptions in the legal principles. If a punishment for a rape and murder is a death penalty, then, all other rapists and murderers must also be hanged till death. Such exceptions are all arbitrary, and law can not be arbitrary. We can not leave justice at the mercy of arbitrary decisions of lawyers, judges, crowd or the State officials.
This whole incident reveals that the State judiciary system has no sense of justice. Judges are unaware of their prime function. Their decisions are all arbitrary, and so dangerous. The State judiciary system can not produce justice because the judiciary officials are not interested in it. This system is used by the State officials - politicians, bureaucrats etc., - mainly to protect their own lives, liberty and property! The idea of independent judiciary as a check on governmental powers is a joke because the judiciary system itself is part of the State apparatus.
In Nirbhaya case also, the final execution of this verdict is still in far future. Those rapists' lawyers will now appeal this case in upper levels of courts. Finally president will come into picture, and only after that we will come to know whether the deceased girl is going to get any justice or not. Nirbhaya might get an indirect justice, but other similar victims of rape and murder in this country will never get it because their case was, is or will not be a rarest of rare case!!!
Not only this, after the announcement of the verdict, the news items report that, Cheers went up from a crowd inside and outside the Delhi courthouse when lawyers rushed out to announce the sentence.
What's wrong with this verdict? What is wrong are several things. Let's see them one by one.
First, this verdict is right because those rapists deserved death penalty, but the problem is that it is not based on any sound legal theory as Judge Khanna's statement reveals above. The judiciary system's function is to produce justice for the victims and nothing else. But here it is seen that instead of, primarily, producing justice for the victims, the judge and the judiciary system is more interested in deterring the crime! Crime deterrence can not be a prime objective of any judiciary system. At the most, it can be a by product of the justice system. Justice in this case required that those rapists' life be taken away from them - i.e., death penalty - because they took away that girl's life. They violated private property rights - and property rights are human rights - of that girl by attacking her body and killing her, and justice demanded that they be punished for this violent crime. The legal principle of lex talionis is the guide here (but also see this brilliant article of Murray Rothbard on Libertarian punishment theory, Punishment and Proportionality). Whether this punishment is going to deter other people from committing this crime in future is not a botheration of the judiciary system. Those people who are favoring a death penalty (see here) to deter crime are all wrong.
Second, the verdict statement clearly shows that judge Khanna, and with him the Indian State judiciary system, is more interested in appeasing the crowd i.e., the so-called collective conscience of the Indian society to which he frequently refers. This again is wrong. As I said above, judiciary system's job is to produce justice only. What the crowd is thinking about any case can never drive judge's verdict. The whole concept of "collective conscience of the society" is erroneous to begin with. There is no existence of any such collective conscience. Sound legal theory shows, that the case can only be between the victim and the alleged criminal. The non-existent societal conscience can never be a consideration in delivering justice to the victim. Appeasing crowd is a dangerous phenomenon.
Lastly, judge Khanna also said, that he is giving capital punishment because this is one rarest of rare case of brutality! And this legal tradition of "R-R Test" is begun by the Indian Supreme Court itself! So, according to this logic, a rape and murder which is not brutal is different from a rape and murder which is! If someone rapes and murders a girl coolly and calmly than his rape and murder is different than those Delhi gang rapists' rape and murder!? There cannot be any more twisted logic than this so-called "R-R Test" of Indian supreme court. No matter what, a rape and murder is a rape and a murder. There cannot be any exceptions in the legal principles. If a punishment for a rape and murder is a death penalty, then, all other rapists and murderers must also be hanged till death. Such exceptions are all arbitrary, and law can not be arbitrary. We can not leave justice at the mercy of arbitrary decisions of lawyers, judges, crowd or the State officials.
This whole incident reveals that the State judiciary system has no sense of justice. Judges are unaware of their prime function. Their decisions are all arbitrary, and so dangerous. The State judiciary system can not produce justice because the judiciary officials are not interested in it. This system is used by the State officials - politicians, bureaucrats etc., - mainly to protect their own lives, liberty and property! The idea of independent judiciary as a check on governmental powers is a joke because the judiciary system itself is part of the State apparatus.
In Nirbhaya case also, the final execution of this verdict is still in far future. Those rapists' lawyers will now appeal this case in upper levels of courts. Finally president will come into picture, and only after that we will come to know whether the deceased girl is going to get any justice or not. Nirbhaya might get an indirect justice, but other similar victims of rape and murder in this country will never get it because their case was, is or will not be a rarest of rare case!!!
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