The Options for Those Guilty of Delhi Rape An Indian court is set to decide Friday the punishment for the four men convicted of the gang rape and murder of a 23-year-old student in Delhi in December. Prosecution lawyers have argued that only the death penalty fits the crime, while defense lawyers pleaded for a lighter sentence to give their clients a chance at reform. Regardless of which way the court goes, lawyers for all four defendants said they will appeal the conviction, setting the stage for a judicial process that could take a few more years to complete. Here’s a roundup of the next steps. If Friday’s verdict is a death sentence, the trial court must send the case to the High Court whether the defendants appeal the verdict or not. Under India’s criminal laws, a death sentence handed down by a trial court can be carried out only after a High Court bench of two judges confirms the decision. “It is the harshest possible punishment given in the rarest of rare cases,” said Ujjwal Nikam, a Mumbai-based senior criminal lawyer who has been appointed the public prosecutor in the alleged gang rape of a photojournalist in Mumbai on August 22. “The reference to the High Court acts as a safeguard against any error or lapse on the part of the trial court,” Mr. Nikam said. If the defendants file an appeal against their conviction, the court combines the appeal with the automatic reference, hearing them as one case, said Rebecca John, a Delhi-based criminal lawyer. In cases of so-called death reference, the High Court does not usually hear witness testimonies or record evidence. Instead, it re-evaluates the evidence recorded by the lower court, including statements of witnesses, medical reports and other documents, and re-assesses the conclusions of the lower court, said Mrinal Satish, an associate professor at New Delhi’s National Law University. The court also hears arguments by both sides. After examining the case, the court may do one of three things: uphold the death penalty, replace it with a lighter sentence, or acquit the defendants. If the judges think any evidence or line of inquiry has been omitted during the trial, they can record the evidence themselves, or direct the trial court to do so. Many criminal lawyers said death references are given priority by High Courts, particularly for sensitive or highly publicized cases. Courts often hear them day-to-day, rather than having long adjournments. “It won’t take years and years,” Ms. John said of a possible reference in the Delhi gang rape case. “A murder reference takes precedence over other cases.” Mr. Nikam said the amount of time a High Court takes would depend on the amount of evidence it has to scrutinize, and estimated the High Court would finish hearing the case in one year. The Delhi High Court currently has three benches of two judges each tasked with hearing death sentence references among other criminal cases. Mr. Satish said that while high profile cases get urgent attention, those that receive less public scrutiny may drag on for over two years. The decision of the High Court can be appealed to the Supreme Court. Mr. Nikam said if the defendants in the Delhi gang rape case are given the death sentence and file an appeal in the apex court, it is likely to be disposed of in one year. For those convicts whose death penalty is confirmed by the High Court and upheld by the Supreme Court, the final recourse is a presidential pardon. Known in India as a mercy petition, this stage may become a bottleneck as some cases remain pending for years. Delays in granting pardon have become grounds for death sentences to be reduced to life imprisonment. There is no time limit for a mercy petition. If the court gives a life sentence, the procedure is slightly different. The case is not automatically referred to the High Court. Instead, defendants must file an appeal, which in most cases is heard rather than rejected outright, said Mr. Satish, the law professor, since it is the first appeal from the decision of a lower court. High Courts typically take from one to three years to decide appeals of life sentences, criminal lawyers said. “There is no procedure for fast tracking here, nor can any time limits be set for the higher courts,” said Mr. Satish. All rape cases are tried in fast track courts in Delhi and the new rape law provides for the disposal of these cases, as far as possible, within two months of the charges being brought. One rationale for fast tracking trials is to prevent the suspect or his family from attempting to influence the woman, her family, or witnesses, with money or threats. But that rationale doesn’t hold for appeal proceedings, since the statements are already recorded during the trial, Mr. Satish said. This is also true for an appeal to the Supreme Court. Criminal lawyers said it is difficult to predict how long it would take when a life sentence upheld by the High Court is appealed to the Supreme Court. Judges exercise a great degree of discretion and may or may not accelerate the hearing of the appeal, the lawyers said. Read an extract of WSJ’s e-book “Crimes Against Women: Three Tragedies and the Call for Reform in India” here. Buy a copy of the full version here. 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Posted on: Fri, 13 Sep 2013 03:34:53 +0000
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