by Pinky Anand
The verdict also caused much uproar among the public at large, fuelled by vehement tirades in Karanjia’s Blitz.
In addition to overwhelming public interest, this case was also marked by a degree of political strong-arming. Before the final pronouncement of the life-imprisonment sentence by the Supreme Court, the then prime minister, Jawaharlal Nehru, was approached to intercede and advise the suspension of the sentence. Accordingly, the then governor of Bombay, Sri Prakasa, passed a decree ordering the suspension of the sentence and placing Nanavati under naval custody. This could easily have been construed as illegitimate use of political clout in favour of Nanavati, who was a regular in the Nehru–Gandhi circles.
In a nutshell, there were two factors that favoured Nanavati—public opinion of him as a wronged martyr and the immense support that the Indian Navy and the Bombay Parsi Panchayat exhibited. In one instance, 8500 people assembled to support the governor’s decree in a rally held at Cowasji Jehangir Hall.
This case also had an impact on the case against Bhai Pratap, a freedom fighter from the Sindhi community. Charged with misusing an import licence for his sports-goods business, Pratap’s case was to be scrutinized by two bureaucrats, B.B. Paymaster and R.L. Dalal. Of the two, Paymaster was Parsi. Although found innocent, it was suspected that Bhai Pratap’s chances of acquittal could have been marred by the acrimony between the Sindhi and Parsi communities that the Nanavati case had created. To find a way around this, Ram Jethmalani, adviser to the prosecutor in the Nanavati case, conferred with Rajni Patel, Nanavati’s defence lawyer, and Sylvia Nanavati to persuade Mamie Ahuja to grant a written pardon to Nanavati. This took some effort, but Mamie eventually gave in. In 1962, both Bhai Pratap and Kawas Nanavati, who had been in prison for three years by that time, were pardoned by the new governor of Bombay, Vijaya Lakshmi Pandit, who was also Nehru’s sister.
Nanavati moved to Canada with his wife and children shortly after his release. He never spoke publicly about the case and was hidden from the media glare till the time he passed away in 2003.
Fallouts
The main legal fallout of the case was that jury trials were given a quiet burial and removed from the statute books. In any case, jury trials had been limited only to serious criminal cases, barring a few exceptions. The argument of the abolitionists was that had jury trials been such an important component of the criminal justice system in India, then, like Australia and the US, where trial by jury is a constitutional right, the constituent assembly would have given it the same exalted status in India as well. As this was not the situation, and the experience of the Nanavati case had presented the drawbacks in the system, jury trials were excluded from the revised CrPC of 1973. Around the same time, jury trials, for their own particular reasons, were also abolished from fellow commonwealth countries like South Africa, Pakistan and Singapore.
Jury Trials in the US
Jury trials might have been abolished in India but they are still prevalent in many countries around the world, including the UK. The country where it is still most prevalent is the US, where jury trials are a common feature in both civil and criminal cases. Trial by jury in some sense has become a part of the American consciousness and to a large extent has come to define the American legal system. In any society governed by the rule of law, the dispensation of justice is of paramount importance. But to be able to do that in an effective manner, the legal system has to be free from biases and prejudices as much as possible. However, at times, there are cases where justice as envisaged by the law is at odds with the collective morality of the people. The following example serves to highlight this point very well.
The O.J. Simpson Murder Trial
The O.J. Simpson murder trial was perhaps one of the most watched events of the last decade of the twentieth century and certainly the most publicized criminal trial in American history. Simpson, an African-American former NFL star was put on trial for the murder of his white ex-wife, Nicole Brown Simpson, and a white waiter named Ron Goldman. This case again highlighted the racial fault-lines and the effect they have on the justice system. Simpson, despite substantial evidence against him, was acquitted by a predominantly black jury. In subsequent analysis, it was claimed that the jurors on arriving at a not-guilty verdict were swayed more by race considerations than actual evidence.
This trial highlights two important facts—first, that in a jury trial, a large number of people examine the same situation and that these people, drawing upon their varied experiences, offer a better chance of looking at the case from all directions to come to a final conclusion. Second, the jurors, unlike judges, are not trained to be objective in their approach and, therefore, are more likely to get swayed by extra-legal considerations such as morality.
Similarly, in the case of Nanavati, it was alleged that the jury had been swayed by extra-legal considerations of morality and the mass hysteria whipped up by Karanjia’s Blitz, and this had led to an overturning of the decision.
Parsi Matrimonial Courts
In India, personal law is largely the domain of religious communities and sees little interference from the government. Although there have been demands from many quarters for enacting a uniform civil code, it is yet to become a reality. Given this situation, the Parsi community—which has given India illustrious personalities such as J.R.D. Tata, Homi Bhabha, Sam Manekshaw and Nani Palkhivala—continues to adjudicate their matrimonial matters by jury trial.
The system of holding jury trials for settling matrimonial disputes is unique to the Parsi community and is a good example of the past continuing to survive in the present. In this 150-year-old tradition, a five-member jury selected from a pool of twenty Parsi jurors settles matrimonial disputes between community members. The twenty members are nominated by the community council for a decade and usually consist of retirees.
The five members that constitute a jury are selected by the presiding judge through a draw of lots, but the lawyers appearing on behalf of the plaintiffs and defendants can veto a particular juror to avoid any conflict of interest.
The Parsi community, given their unique culture and history, have preserved this long-standing tradition, but not without inviting criticism. Though these trials don’t deal with criminal law, they continue to represent a long-gone era of Indian history.
Conclusion
As much as we would like to see the world in Manichaean terms—black and white, good and evil—it is not possible to do so. The complexities of life often throw up situations where you cannot take a binary view. The case of Nanavati is one such situation. Like the O.J. Simpson case, the jurors in this case sympathizing with Nanavati saw justification in his actions and, therefore, held him to be not guilty.
Our rule-of-law-based society necessitates that we pick a side. One is either on the side of Nanavati, the great patriot and husband wronged by his wife’s infidelity, or Ahuja, the playboy mercilessly murdered by Nanavati for having an affair with his wife. The jurors deciding the case picked Nanavati’s side. The higher judiciary, purely on the touchstone of law, found Nanavati guilty. But beyond the realm of law is the world of morality: Was Nanavati morally right in killing a man who had destroyed his marriage and family? The public opinion felt that Nanavati had been wronged, so did the jury—but not the law.
8
THE UNAFRAID: WE CALLED HER NIRBHAYA
As I was having my morning tea on 17 December 2012, a headline caught my eye—a girl had been found raped and grievously wounded on the streets of South Delhi. The news reports stated that the young woman had been raped in a moving bus and was in a critical condition. Little did I realize that morning that this gruesome incident would ignite a nation and change the way we viewed society.
Individually, we are small but integral cogs in the huge machinery that operates and controls our behaviour and our sense of morality, right and wrong. Even though as a society we have common ideas about what is acceptable or unacceptable behaviour, there are times when certain issues challenge cer
tain notions. Then these instances are often watered down to drawing-room talk about how something terrible had happened to someone and how the system had failed him or her. At these times, I have often found people lamenting about how society is a passive onlooker to these tragedies and making a vague reference to ‘something’ that needs to be done.
The anger and indignation that we felt as a collective group at the gang rape and murder of a twenty-three-year-old woman became one such defining moment in our history where that vague reference to ‘something’ took on a more concrete form. The mass protests brought to the fore the power of the people, and to my mind questioned the reliance on already structured systems. Considered unsafe for women, the streets of New Delhi became witness to a movement so large and vehement—the likes of which have rarely been seen. The reverberations of that one incident in December 2012 are seen even as I write this, in the form of posters on buses, rickshaws and taxis. And hopefully, this would trigger a change in attitude towards brutality and objectification of women.
The capital of our country, New Delhi, built from seven cities, and conquered, pillaged and rebuilt over and over has accumulated a charm of its own. The streets are a mixture of the old and the new, from the shiny new colonies of South Delhi to the old-world charm of the old city, embodying the polarity between modern and traditional attitudes. On a cold December night, a twenty-three-year-old medical student from Ballia, Uttar Pradesh, was subjected to a horrific crime on the streets of this very city. What she went through that fateful night shook our very cores and her death questioned our very ability to function as a civilized society. She embodied the ideal Indian woman, planning to give free medical care to the needy, provide for her family, and change the perception that a woman can’t dream big in a traditionally male-dominated society. She was the bridge between the old and the new India, one of the many young people in the country trying to break through the stifling fixity of their lives. She could have been anybody—our daughter, neighbour, friend, sister . . .
The trauma that ‘Nirbhaya’ underwent struck our hearts and seemed to be felt by every citizen. Not only did the incident lead to large-scale civil protests, it also led to revolutionary changes in the criminal justice system, both in a substantive and administrative manner.
A cold night in foggy Delhi saw Nirbhaya and her male friend returning home after watching the movie Life of Pi at a theatre in Saket, South Delhi. They tried to find an autorickshaw to take them to the outskirts of the city, and even though it was only a forty-five-minute drive, they could not find transport. Left with few options, they boarded an off-duty bus at about 9.30 p.m. from Munirka for Dwarka. It was not late at night by any reckoning; she was not out alone; and they were taking public transport—she had done all the things that women all over the world are told to do in the interest of safety.
On the bus were five other male passengers and a male driver. At first, nothing seemed out of the ordinary. But shortly after they boarded the bus, things went very wrong. The bus deviated from its normal route and its doors were shut. The driver switched off the lights. The male friend of the girl objected when three of the passengers, namely Ram Singh, Akshay Thakur and Mohammed Afroz started misbehaving, asking him why he was with the girl at this late hour: ‘Tu itni raat ko ladki lekar kahan ghoom raha hai?’ An argument began and a scuffle ensued. Little did they know this was no ordinary scuffle and would end up in death and then the resurrection of humanity and our faith in it. The young man was beaten, gagged and knocked unconscious with an iron rod.
What happened next beggars description. According to newspaper reports, the bus was driven around Delhi for over an hour with its curtains drawn. The girl was mutilated, beaten and raped by the men one by one while her friend lay unconscious.
The extent of injuries was brutal, the worst being the insertion of an iron rod into her genitals. The rod, which was later recovered, was a jack handle.
After the assault, Nirbhaya and her friend were robbed and thrown out of the moving bus. The Supreme Court judgment mentions the fact that the assailants were exhorting that they should not be left alive.
Both victims lay unconscious and partially clothed on the Vasant Vihar road that connects to Mahipalpur. Several people and vehicles would have passed them, but probably due to the harassment of complainants in road accident cases, no one stopped, and they continued to lie there unclothed for almost forty-five minutes. A passer-by found them at around 11 p.m. and alerted the police, who took the couple to Safdarjung Hospital, where Nirbhaya was placed on ventilation. The extent of her injuries was such that immediate surgery was required. Unfortunately, the trauma was not yet over for her, and she had to undergo multiple surgeries. In the final operation that she underwent in India, most of her intestine was removed. The matter inflamed the public imagination to an extent that the authorities decided to send her to Singapore for treatment.
Nirbhaya was to be moved to Mount Elizabeth Hospital, a multi-organ transplant specialty centre. She was transported on 27 December. During the six-hour-long air ambulance flight, she collapsed, never to regain consciousness again.
Debates raged on news channels as to whether she was in a condition to be taking a flight. The entire nation followed the news with bated breath and hoped for recovery; I too was amongst them. A young girl was fighting for her life, and an entire country was behind her wishing and praying for her recovery, but to no avail. The girl we had all come to know as ‘Nirbhaya’ succumbed to her injuries at 4.45 a.m. (IST) on 29 December. Her body was cremated on 30 December in Delhi amid high security.
This extract from the Supreme Court judgment details the horrific injuries suffered: ‘The trial court has recorded that the victim’s complete alimentary canal from the level of duodenum up to 5 cm from anal sphincter was completely damaged. It was beyond repair. Causing of damage to jejunum is indicative of the fact that the rods were inserted through vagina and/or anus up to the level of jejunum’. Further ‘the septicaemia was the direct result of internal multiple injuries’.
In the days following the incident, a Delhi-based tabloid had revealed the victim’s name, for which the Delhi police registered a criminal case against the editor as disclosure of a female victim’s identity is an offence under Section 228(A) of the IPC, unless the family of the rape victim agrees to it.
Soon after, the victim’s father was quoted as saying, ‘We want the world to know her real name. My daughter didn’t do anything wrong, she died while protecting herself. I am proud of her. Revealing her name will give courage to other women who have survived these attacks. They will find strength from my daughter.’1
Protesters congregated on every street corner and the atmosphere was one of anger and disbelief. One of our own had been taken in a fashion that shook our very belief in the inherent goodness of human beings. The city I had spent all my life in felt unsafe for me and for my loved ones, and this fear propelled us all.
The youth of India, it seemed, had had enough. Women it seemed had had enough. Among candlelight vigils and mass silent gatherings, Delhi seemed poised to fight for their rights. The police tried to control the demonstrations by summoning the Rapid Action Force, and demonstrators faced batons, tear gas and water cannons. The extent of the movement seemed surreal to me. I have rarely seen mass protests on the scale witnessed on the streets of India those days.
The police found and arrested the suspects within a day of the crime. CCTV footage was taken from Hotel Delhi 37, which was located on the route that the bus driver had taken during the dastardly act; this helped identify the white bus with yellow-and-green stripes, a private vehicle hired by one of Delhi’s schools. That led the police to Ram Singh, the driver.
Six men were arrested, including Ram Singh and his brother Mukesh Singh, who were both found in Rajasthan. Two others, Vinay Sharma, a gym instructor, and Pawan Gupta, a fruit seller, were arrested in Delhi. Akshay Thakur was arrested on 21 December from Karmalahang village in Aurangabad, and the seventeen-
year-old Mohammed Afroz from Badayun, Uttar Pradesh, was arrested at the Anand Vihar terminal in Delhi. The latter had met the other perpetrators for the first time on the day of the incident itself.
The night of 12 December had started for these six with dinner at Ram Singh’s house; he was an employee of Yadav Travels. They planned to drive around in the bus and try their luck at robbing somebody. Right before they picked up Nirbhaya and her friend, they had robbed a carpenter by the name of Ram Adhar.
All six were put on trial. The fight for justice was long and complicated, going on for many months. The charges were rape, kidnapping and murder. In March 2013, the bus driver Ram Singh was found hanging in his cell—by using his own clothes.
Mohammed Afroz was adjudged to be seventeen years and six months old on the day of the crime by the Juvenile Justice Board (JJB), and even though a request for a bone ossification test was made by the police for accurate determination of his age, it was denied by the JJB. As a result, Afroz was tried separately in a juvenile court. Due to the extremely violent nature of his alleged crime, a petition seeking his prosecution as an adult was filed, but was subsequently rejected by the JJB.
He was convicted of rape and murder on 31 August under the Juvenile Justice Act. The court sentenced him to three years’ imprisonment in a reform facility; this term included the eight months that he had spent in custody since the beginning of the trial. The board opined that although Afroz was involved in a heinous crime, there was no evidence that he had been the one who brutalized the girl the most, even though the charge sheet filed by the police stated so. The board cleared him of charges under Sections 307, 396 and 397 of the IPC, but found that he had committed the offence of hatching a criminal conspiracy. Despite the gruesome nature of the attack on the girl and her companion, he was released on 20 December 2015.
