MUKESH
& ANR V. STATE FOR NCT OF DELHI & ORS.
(NIRBHAYA
RAPE CASE)
CASE STUDY
CONTENT
TOPIC
PAGE NO
Citation ….….………………………………………………………………….... 3
Introduction
.……..…………………………………………………………….. 4
Facts……................................................................................................................
5 - 6
Justice
Verma Report…………………………………………………………….. 7
Section
Defined…………………………………………………………................8 – 9
Issues
Raised………………………………………………………………………10
Petitioner’s
Argument……………………………………………………...............11
Judgment……………………………………………………………………………
12
Reason……………………………………………………………………………….13
Case
Analysis………………………………………………………………………..14
Conclusion…………………………………………………………………………...15
Bibliography…………………………………………………………………………16
ABOUT THE CASE –
CITATION
- (2017) 6 SCC 1
APPELLANT
– Mukesh & Anr
RESPONDENT
– State For NCT of Delhi & Ors.
DATE
OF JUDGMENT – May
5, 2017
BENCH
– Chief Justice Dipak Misra, Justice R
Banumathi and Justice Ashok Bhushan
INTRODUCTION
Rape being one of the most serious
crimes all over the world takes place often in all parts of the country some of
which are noticed and made news while some are unnoticed. The rapist and the
victims may change but the world tags such act as a serious offense. No
territory has any law with a provision for forgiving the accused. Some
territories implement the punishment as soon as the crime is proven. Some
nations give a chance to prove the innocence of the accused. India is one among
such nation which grants the time and opportunity to the accused to prove his
innocence. The grant of time causes changes and delay in the delivery of
justice.
Among all such events that took
place in India, a remarkable incident was the case of Mukesh & Anr v. State
for NCT of Delhi & Ors. Popularly known as the NIRBHAYA CASE. The Indian
rape laws do not allow to use the victim’s name in media, thus such a term was
given to the case, wherein ‘NIRBHAYA’ means fearless. The following case study
and analysis deals with the facts, issues and judgment of this popular and one
of the most discussed case which took place from 2012 to 2017. The incidence
took place on December 16, 2012 and the verdict of the case came on September
15, 2017 that is the whole case lasted for five long years. Somewhere or the
other this is the sole reason why India lags behind in the prevention of rape.
The laws to prohibit rape are true to standards, but the implementation of such
laws prevents the nation from moving forward. The judgment was passed in the year
2017 and implemented in the year 2020 was welcomed by all the citizens even in
the pandemic period of COVID. Such delays tends to eliminate the deterrent
effect that criminal law aims at immediate and harsh punishments for such
serious crime may aid in stopping its spread.
FACTS OF THE CASE
An act of gang rape was committed by
six men in a running bus in Delhi on 16th December, 2012 while she
was going back to her home with a male friend accompanying her. The original
name of the victim is unpublished and mentioned as Nirbhaya in all discussions.
Nirbhaya a 23 year old lady was waiting at the bus stop with her male friend at
night. Soon the bus arrived which was empty had only six men and a teenage boy
was convincing her to enter the bus as they were heading to the direction of
her house. She was convinced and entered into that bus.
The driver along with five other members
including a minor of age 17 engaged in the act of forceful sexual assault. The
friend who tried to protect Nirbhaya from such forceful acts was beaten up
brutally by all those six men. That running bus was made a place that day for
the brutal rape and various other harsh injuries. Some of those men were drunk
and one was nearly a psychopath. She was not only raped but also beaten up
badly as if she was a non living object. An iron rod was inserted into her
private parts and to her internal organs. Her intestine was pulled out.
And after committing this heinous
crime she and her friend were thrown out of that moving bus to die in a naked
condition during the chilly winter time of Delhi. Several vehicles passed by
some went unnoticed, some noticed but ignored, some didn’t wanted to help them
out. After several hours of hardship and pain of the injuries which she had
someone came up to help and informed the police. She was later admitted to the
hospital for treatment but soon ended up joining hands with death.
She was not even in a condition to
speak up and narrate the amount of immense pain she has gone through. She was
struggling and still fighting against all her odds but her strength failed
apparently when she lost her life with a single wish and her last wish to
punish those devils and provide justice to her. Her death bed witnesses her
physical and mental instability, multiple organ failure, internal bleeding,
cardiac arrest, and various other troubles. She died on 29th
December.
The petitioner being the state
convicted the six men who were involved in such an inhuman activity. The
respondent argued implying that there was no similarity between the activities
that took place and the six people.
The learned counsel tried to prove
the presence of the six men in some other place, but due to the witnesses and
other supporting proofs such as DNA test, blood traces, the petitioner was able
to prove his arguments.
After December, 2012 –
The Criminal Amendment Act 2013 was
one of the noticeable amendments which widened the scope of rape as mentioned
under Section 375 and inserted Sections 354A, 354B, 354C, and 354D. The term
rape was defined and was restricted only to sexual intercourse. But after this
amendment, it was defined in a broader sense including any involuntary and
forceful penetration without the woman’s consent into the women’s body parts.
Hence the beginning stage of rape was also included in it. The laws relating to
the protection of women was mainly because of the Report submitted by Justice
Verma Committee. The committee was formed to provide a fast trial and provide
for punishment to the criminals in the case of Nirbhaya.
JUSTICE
VERMA COMMITTEE REPORT
The committee was made after the Nirbhaya case to provide
for quicker trial and enhance punishment and criminal provisions in the law for
people who are accused of committing sexual offences against women.
Some of the progressive changes which the committee
suggested are as follows –
✔
Widening the scope of the
definition of rape under the Indian Penal Code. Rape should be treated as a
separate offence and it should not be limited only to the penetration into the
vagina, mouth or anus but also any other non-consensual penetration whose
nature is sexual should be included in the definition of rape under various
laws.
✔
Marriage should not be
considered as a license to perform sexual offences. Laws for marital rape
should also be implemented.
✔
The use of words or any act
or any form of gesture that creates a threat of sexual nature should be termed
as sexual assault and should also be punishable.
✔
The non-penetrative forms
of sexual contact should be regarded as sexual assault.
✔
There are some key
recommendations made by the committee on the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Bill, 2012 which are –
⮚
Domestic workers must be
included within the purview of the Bill.
⮚
The complaint and the
respondent should first attempt for conciliation so that easy settlement of
issue can take place.
⮚
The employer should pay
compensation to the woman who has suffered from sexual harassment at the
workplace in any form.
⮚
The employer should
institute an internal complaints committee to which complaints should be filed
and heard.
✔
A system for online FIR
filing should be established.
✔
It was of the view that the
death penalty should not be awarded for the offence of rape. It recommended
life imprisonment for rape instead.
✔
The Committee has
recommended certain steps for the reformation of the reformation of the police.
This includes the establishment of Security Commissions in states to ensure
that the government doesn’t exercise any kind of influence on the police.
SECTION DEFINED
SECTION
375 – RAPE
A man is alleged to commit “rape” in the following
circumstances -
⮚ If he penetrates his
penis into the vagina, mouth, urethra or anus of any woman or he makes her do
so with him or with any other person.
⮚ If he inserts anything
or any body part other than the penis, into the vagina, urethra or anus of a
woman or if he makes her do so with him or with any other person.
⮚ If he manipulates any
body part of a woman so as to do such penetration into the vagina, urethra,
anus or any part of the body of the woman or he makes her do so with him or
some other person.
⮚ If he applies his mouth
to the vagina, anus, urethra of a woman or he makes her do so with him or some
other person, under the given seven descriptions:
▪
When it is against her will
▪
It is done without her consent.
▪
It is done with her consent, but such consent has been obtained by
putting her or any person in whom she is interested or whom she is concerned
about, in fear of death or of hurt or anything else.
▪
With her consent, when the man knows that he is not her husband
and that her consent is given because she believes that he is her husband to
whom she is lawfully married.
▪
With her consent when she wasn’t of sound mind or in an
intoxicated state or the administration of any harmful substance by the person
who commits rape or through another due to which she is unable to understand
the character or consequences of the act to which she provides her consent.
▪
With or without her consent, when she has not attained majority or
is under eighteen years of age.
▪
When she is not in a
condition to communicate her consent for the act.
Explanation 1 – For the purpose of
this section, “vagina” shall include labia majora.
Explanation 2 – Consent means an
unequivocal voluntary agreement when the woman by words, gestures or any form
of verbal or non – verbal communication communicates willingness to participate
in the specific sexual act.
ISSUES RAISED
⮚ Whether the offenders
should be punished with life imprisonment or death penalty?
⮚ Whether the minor should
also be punished for this heinous act or should be sent to juvenile home?
⮚ Whether the scope of
Section 375 should be expanded?
⮚
Whether the rape laws present in the IPC should amended for good?
PETITIONER’S
ARGUMENT
As the case was made very strong
from its trial from the level of subordinate court, the appeal made by the
respondent against the judgment of the subordinate court at the High Court also
gave the same judgment. The High Court confirmed the order passed before.
✔ The learned counsel
appearing on behalf of the criminals applied for a review petition in Supreme
Court under Article 137. Such a review petition can be filed in Supreme Court
when either of the parties is aggrieved by an order passed by the court due to
some error of facts of the case.
✔ In the review petition,
the petitioner tried to raise a defence that the offenders were absent in the
place and there lies no link between the crime and the offenders. But the
documents and proofs submitted by the state made the court reject this
petition.
✔ The counsel then moved
to Curative Petition. The concept of raising a curative petition is for
requesting any relief for the aggrieved person even after the final judgment
has been passed. But the Supreme Court considering the welfare of the nation,
to stop such crime in the future and to stop the flow of judiciary through a
wrong path of injustice while administering such cases in the future, rejected
the plea.
✔ The final move made by
them was the Mercy Petition. A mercy petition can be filed before the President
of India. The president has the power to reprieve, respite or remit a
punishment given by the Apex Court but such a decision requires consultation
with the Council of Ministers. The President in view of the welfare of the
nation upheld the death sentence given by the Supreme Court.
JUDGMENT
A three judge bench
agreed that the act done by the accused did not deserve any sympathy. In a
strong message, that the diabolic crime had shocked the collective conscience
of the society and that the court can treat it as a rarest of rare cases where
death sentences can be awarded. DNA identification, fingertips, witness
testimonies and odontology proved the presence of the accused in the bus and
their involvement in the crime, as said by the Supreme Court.
The casual manner with
which she was treated and the devilish manner in which they played with her
body, her identity and her identity and her dignity is humanly unthinkable –
said the bench. The Supreme Court administered justice to the family of the
victim and all the women in the country by confirming the punishment of death
sentence to the four convicts in the Nirbhaya gangrape and murder case terming
it as the rarest of rape most brutal and barbaric attack on a 23 year old paramedic student, Jyoti Singh.
The convicts treated the victim as an object of enjoyment and exploited her
sexually to the worst level.
A three – judge bench,
through a unanimous verdict, upheld the Delhi High Court Judgment that had
concurred with trial court decision of the case. Mukesh (29), Pawan (22), Vinay
Sharma (23) and Akshay Kumar Singh (31) were hanged till death for the
brutality they had shown against a woman of the country. The bench awarded them
the death sentence because their crime met ‘rarest-of-rare’ threshold. After
the incident, the fifth accused was not tried and he was sent to a correction
home for three years because he was a minor at that time.
EFFECTS OF RAPE AND SOCIAL REACTION
The effects of rape
can include both the physical trauma as well as psychological stress. Women
also suffer from health issues and reproductive problems after rape and mental
instability continues even after the rape is over. It is really a curse for a
woman if she gets raped.Women
don’t even complain about it because they think it is shameful for them and
their family also. They fear that if they get blamed for what has happened with
them what will be the consequences of it. It ruins their life and makes them
restless for the rest of their lives.
It makes them lose their interest in
working of the system of our country and they don’t even think about justice as
it becomes just a word for them.Rape is one of the social problems and the
victims suffer from physical, mental, and emotional consequences and various
other traumas which ruin their life.
There
was a lot of social outrage due to the gruesome incident. There were a lot of
candle light marches, solidarity movements and protests. India has always been
notorious for being unsafe for women, and this was the spark which ignited the
fire of public outrage. A British documentary called “India’s Daughter” was
banned by the central government because it portrayed India in a very
derogatory and poor light.
A
majority of the outrage poured out on social media. In the contemporary times,
with easy access to technology, the reactions on social media often reflect the
mood and situation in the country. The hashtags #GangRape, #JyotiSingh
#Nirbhaya and so on became “trending” on various websites. Organisations like
All India Progressive Women’s Association (AIPWA) also made its mark. Its
secretary became one of the lead voices for women’s rights on Twitter.
Feminist
and women’s movements gained momentum and incentive. The culprits were made an
example of and condemned. Not just social, there were legal repercussions of
the incident too. The UPA government was being pressurised to make stricter
laws regarding rape and dealing with juveniles committing heinous crimes.
CASE ANALYSIS
The Nirbhaya gang rape was
definitely the spark that ignited the fire for women’s rights and women’s
safety. But sadly, the fire was short lived. The public outrage died in a few
months, and with it, women’s issues took their usual place in the daily agenda.
In early 2016, a dalit girl was brutally gangraped in the Ernakulam district of
Kerala. The rape was as brutal as the Nirbhaya gang rape case. But the social
outrage about the incident was disproportionate to that of the Nirbhaya case,
and as some argue, disproportionate to the crime.
This raises the question, whether
the fact that Nirbhaya was a Delhi based upper caste girl as opposed to a poor
law student from Ernakulam, Kerala, had some role to play in the difference in
the social reaction. It could probably just be luck and insufficient media
presence in that district, but the contrast is uncanny. The idea that a
difference in location can make so much difference in media coverage for such
issues is disturbing. This raises the question whether there are other
unreported incidents.
This incidence shows the death of
humanity. It was one of the most cruel rape case one has ever come across. The
society mostly blames the women for being raped pointing out their dressing,
their hangouts and the timings at which they are out but the fact being a girl
never invites a man to rape her it is always the sick mentality of those men
who consider women as an object to be exact as a non-living object who are
meant to face any level of cruelty. In today’s society every single parent
teaches their daughters to live a limited and restricted life with certain
boundaries for every act they perform but not a single parent teaches their son
to respect every single women be it in their family or someone from outside.
Those men with sick mentalities should be restricted not the women who suffer
without any fault of theirs.
The Indian Judicial System takes a
lot of time in granting justice which serves as a slow poison for the victim
and their families who are struggling every single day fighting for justice.
The trial should be quick and the punishment should be heinous enough as the
criminal act is so that it is a teaching for the society that the brutal act
can cause them a lot.
CONCLUSION
Even
after such a landmark judgment and punishment, India still witnesses many
noticed and unnoticed rape cases, such as the Shakthi
Mili Gang Rape which took place in 2013, the Hyderabad Rape Case took place in the year
2019, etc. All these incidents are not just a violation of human rights but far
from that where the victim’s sustainability becomes a big question mark. Though
India made its presence in modern society by updating various laws and creating
awareness about gender equality which is present in the Indian Constitution,
the sudden action and delay in judgment caused India to stand back in
controlling such crimes because ‘justice delayed is justice denied’. But in the
case of Nirbhaya, the justice is not denied though it is delayed. However, such
a delay paves way for other serious crimes.
BIBLIOGRAPHY
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