It would be an understatement to say that the Nirbhaya rape case is more than just a 'legal proceeding'. The entire gestation of this case, the facts involved and the judgments delivered, has galvanised a nation, led to structural changes in criminal law, and surfaced a polarised discourse on punishment and deterrence. Hence, by its very development, it has transcended the limits definitive of a 'legal case'; so much so, it can safely be called an 'event'.
There lies the tragedy of it all, the travesty of what ought to be called 'justice'. When an 'event', with all its relevant and irrelevant participants, is motioned within the realm of a 'legal case', absurdity arises. These absurdities, the conflict which arises from the very act of law trying to exercise jurisdiction over something that can't be immunised from the non-legal discourse, become so dominant that the ideals of justice take a backseat.
In the context of the present case, the absurdity is the clamour for death. Clamour which is not completely sourced from the 'societal conscience', but major proportions of which is rather actively imposed on such a 'collective conscience'. This 'societal conscience', this clamour, might not be completely unfounded, but it also can't be denied that it is much more complex than that. Large proportions of this 'collective clamour' is lobbied propaganda, narratives created by political parties to gain electoral gains, and active silencing and mockery of counter-narratives.
This needs to be highlighted; what happens in the courtroom is a commentary on death penalty jurisprudence that must be reflected upon. It was during the recently concluded execution proceedings, wherein the Additional Sessions Judge ended up staying the date of execution sine die, that this unjustified clamour manifested itself.
Even before the proceedings had begun, many media outlets already created a narrative that anything apart from an affirmative death warrant would be a 'betrayal'. Visuals depicting hanging and execution affirmative flashes were prepared beforehand.
Almost all the reporters who were present at the Patiala House Court for the hearing, were aware of the fact that the most plausible outcome of that hearing would be further adjournment of the execution date. Lawyers representing the victim's family had also informed the media that they don't see the hanging taking place on the scheduled date.
Despite being aware of the Delhi Prison Rules and how the same unambiguously lay down the procedure for the execution of death row convicts, there were murmurs, conversations expressing disgust and death affirming possibilities gaining ground in discourse.
Once the hearing commenced, the clamour started emerging from the arguments made by the state. Prosecutors, as well as counsels for the victim's family, made it clear that they did not want Vrinda Grover, who was appointed as the amicus in the present case, to appear for this hearing.
'She is Mukesh's lawyer, why is she being allowed to appear now. She has no locus to appear before this court in this hearing', victim's counsel agitated.
Facing such a response, Vrinda Grover felt personally attacked for simply doing her job. She informed the court that she has been facing the same for quite some time now and she is seriously considering to file a complaint before the Bar Council.
Apart from this, the state raised certain arguments in this hearing which were not brought up in earlier execution proceedings. One of the most controversial of those arguments centred around the legal interpretation of Rules 858 and 836 of the Delhi Prison Rules.
State argued that Rules 858 and 836 should be interpreted so as to allow the separate hangings of the convicts against whom a common death warrant was passed.
This stance is diametrically opposite to the one taken by the state in earlier proceedings which took place just weeks prior to this one. All this while, the stance maintained by the state was absolutely certain of the fact that all the convicts are to be hanged together.
In fact, both the Prosecutor as well as the victim's counsel, had repeatedly expressed the same position of law during their multiple media interviews. One of the victim's counsel had personally told me that he doesn't expect the hanging to take place at least before the month of May.
So what explains this sudden change of stance? This question becomes even more pertinent when the orders passed in the previous hearings of the same proceedings are considered.
The order passed by the Additional Sessions Judge Satish Arora on January 17, when the fresh death warrants were issued, the earlier date of execution was stayed for all the convicts despite the fact that one of the convicts, Mukesh, had already exhausted his legal remedy of mercy plea.
In that order, it was not disputed that the Delhi Prison Rules does not provide for separate hanging of the co-convicts against whom a common sentence order was passed.
This sudden change in stance surfaced a question of law before the Sessions Court. It demanded the court to exercise a judicial function, to interpret a statutory provision, while passing an order which is administrative in nature.
Ideally, a question of law so grave, that it directly affects the matters of life and death of an individual, must have been moved before the highest constitutional court of the country. The interpretation of the concerned Rules of the Delhi Prison Rules directly involves protections guaranteed under Article 21 of the Constitution.
It fails my conscience as to why such a significant issue was rather raised during a hearing on an application seeking a stay on date of execution before the Sessions Court.
After the hearing got over, ASJ Dharmender Rana reserved his order and went to his chambers for writing the same. Since he did not specify at what time the order would come out, everyone in the media had no option but to wait inside the courtroom.
During the gestation of that wait, which prolonged for over 4 hours, the causality of media's clamour, and the different ways in which it manifests itself, began to surface.
Speculations about the time taken by the judge to give his order, moved beyond conversations and entered the realm of discourse. Media started comparing this hearing with the earlier hearings to substantiate their speculation claiming execution.
'He will definitely send them to gallows tomorrow. Nothing else explains this delay. He's taking this much time to look for authorities and case laws to support the execution', such words began to fill the room.
Then there were parallel conversations that revealed a worse kind of clamour. There were people, including some journalists, who wanted these convicts to get hanged on the scheduled execution date just so that they can get relieved from covering the further proceedings in this case.
'Send them to gallows already, even my daughter wants to see them get executed. I think their execution should be televised', one of them said.
To see a decision involving someone's death being taken so casually, was deeply disturbing to say the least. Despite knowing the law, preparations were made to run the stories on execution because there exists a trust deficit in the judiciary - there exists a belief that judicial officers can and do get compromised by political heat surrounding a case.
The very fact that the judicial system was seen as being subdued to the clamour for death, shows the unreasonable and unjust nature of this 'societal nature' masquerading as justice.
There were people who wanted the convicts to get hanged just so that they can focus on other stories; and there were some who wanted to make a spectacle out of that execution. So much so, that even the inquiries that were made from the Prosecutors regarding what will be there in the order, the possibility of death was termed as 'positive'.
'Sir, what are you expecting? Would the outcome be 'positive'?'
Such is the clamour for death in our institutions that the entire claim of ensuring justice to death row convicts seems like a farce.
Such diverse and arbitrary manifestation of clamour should be the biggest argument to support the moratorium on death penalty. If we neglect it, we'll be complicit in the act of calling personal convenience, sadist pleasures and propagandist journalism as 'societal conscience'.
(The author is the Delhi correspondent of Live Law)