Photographs of Netaji Subhas Chandra Bose draped in garlands had started appearing in various parts of India in November 1945, a few months after his disappearance. Three of his deputies, P.K. Sehgal, Shah Nawaz and G.S. Dhillon, were being court-martialed at the Red Fort in Delhi. By seeking the death penalty for the three leading lights of the Indian National Army for treason and waging war against India, the colonial government was sending out a clear message. Death is the only inevitable consequence for heinous crimes in colonial India.
Ordinary citizens refused to be scared into submission. Spontaneous protests in support of the brave soldiers of the INA broke out nationwide. They were so pervasive that the commander-in-chief of the British Armed Forces in India, Claude Auchinleck, feared that the nation would go out of control. Despite the trial finding the accused guilty, he commuted their death sentences. At once pragmatic and introspective, Auchinleck’s pardon drew a line under the trial. Justice had been done.
Eighty years on, last week, in yet another trial, Judge Anirban Das found accused Sanjay Roy guilty of rape and murder of a junior doctor in the R.G. Kar Medical College and Hospital. In a carefully-reasoned, 172-page judgment, Judge Das examined the evidence to conclude the following:
a. The junior doctor had been raped and then strangulated and smothered to death.
b. The act was done by one person and there was no evidence to suggest gang-rape.
c. The accused, Sanjay Roy, had no credible alibi.
d. He was caught on relevant CCTV footage that led to the inference that he was at the scene of crime at the time the crime took place.
e. The DNA of the accused had been found on the victim and the blood of the victim on the clothes of the accused.
f. The principal of the hospital showed dereliction of duty in not intimating the police on time and attempting to show the case as one of suicide. This was done seemingly to fulfil an “illegal dream” of suppressing the facts to avoid any consequences.
On this basis, he found the accused guilty of rape and murder. The case against the principal continues elsewhere and the judge’s observations will no doubt be used by the prosecution in that case.
However, in a startlingly cogent analysis of a standard that one rarely finds, the judge refused to award the death penalty. He found the actions heinous, but not of a nature that is ‘rarest of the rare’, the legal standard that needs to be met for the death penalty in independent India. Instead, he sentenced Roy to rigorous imprisonment for the remainder of his natural life. Roy will never again see life outside jail.
This sentence has been met with widespread condemnation and dismay. While the disappointment of the parents of ‘Abhaya’, the junior doctor, is understandable, without disrespecting it any way, it is necessary to point out that as a matter of law, the sentence is justified. Roy was ultimately convicted on the basis of circumstantial evidence. There were no independent witnesses who saw the act. Instead, it was a connection of facts which pointed to Roy’s presence at the scene of crime, evidence of penetration and the undisputed fact of the doctor’s death. While the entire episode was heinous, for the death penalty to be awarded, there needs to be aggravated heinousness. This is the standard laid down by the Supreme Court and by following it, Judge Das has applied the law dispassionately to the facts. Such aggravated heinousness is difficult to prove in a case without direct eyewitness accounts. Such an inference should not be taken as normalising the brutal act of rape.
On the other hand, the political clamour for the death penalty is a standard move from the playbook of a compromised political class. Posturing as ‘tough on crime’ by seeking the death penalty is an easy cover-up for the governance failures that led to the circumstances that make rapes commonplace in India. So is passing a facile and unconstitutional law like the Aparajita Woman and Child (West Bengal Criminal Law Amendment) Bill, unanimously passed recently by the West Bengal legislative assembly, that mandates the death penalty for all cases of rape with murder.
The arrest of the principal of R.G. Kar Medical College and Hospital for financial irregularities and maladministration shows how deep the rot in West Bengal’s medical establishment runs. Decades of chronic under-funding meant that the junior doctor was sleeping on a dais in a seminar room. As the judge notes, there was no security worth the name, as any person could enter the hospital premises. Roy may be the rapist, but it is the West Bengal government and its predecessor governments that are the kingpins.
If the pathetic state of working conditions for government doctors was not enough, the judgment paints an equally grim picture of investigation and forensic analysis in the state. Some police officers appeared to have flouted basic protocols while conducting the investigation. One of them even returned the mobile phone of the accused after seizing it, only to confiscate it again at the time of arrest. No police procedural manual
anywhere suggests such a course of action. Again, blaming the officer would be misdirected. Decades of administrative malaise and lack of professional training of police personnel have enabled this state of affairs.
The awarding of the death penalty would have drawn a neat line under this incident. Again, this is exactly what happened post-Nirbhaya. Hang the rapists, pass a law mandating the death penalty in cases of rape and murder and all is well again. Let us move on. The political party in power may be different, but the script is the same.
But the judgment of Judge Das has meant that we are not ready to move on just yet. The systemic reforms demanded by the West Bengal Junior Doctors’ Front will remain live issues that still need to be tackled. Hospitals, Central and state, need more funding. The nexus among hospital administrations, politicians and favoured agencies for procurement of supplies needs to be fully investigated. Better working conditions for junior doctors need to be provided. Their representatives must be on all hospital boards in the state. The flame of the protests which was on the verge of being extinguished has now found renewed light.
In all this, what of Abhaya’s parents who quietly suffer the death of their daughter with such dignity? Their hurt and disappointment are understandable. The death penalty has an easy equivalence in cases of rape and murder. You kill my daughter, the State hangs you. But in this case, as in many rape cases, it is not the rapist alone who is guilty. How does one hang the system? How does one take revenge against a compromised political class that plays jurisdictional games — ‘CBI or Kolkata Police’ — or blame games, pointing fingers at each other for not being able to secure the death penalty rather than seek justice?
By refusing to award the death sentence, Judge Das has not only done his job well, but also done West Bengal great service. Like Auchinleck, his judgment demonstrates introspection and pragmatism. At considerable cost of unpopularity, he has taken a step that is unlikely to please most. But he has set the state and its doctors on the path to justice.
The quest for justice for Abhaya has only just begun. Let it begin a clean-up of West Bengal’s dirty public health system. May her blood be the life-spring for our freedom from the shackles of ineptitude, misgovernance and maladministration. This year, on January 23, let a photograph of Netaji on our prabhat pheris be accompanied by a song remembering Abhaya, two brave children of Bengal.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal