Indian State Practice on Mass Crimes Jurisprudence: An International Law perspective on Bilkis Bano’s Judgement

W
idely acclaimed and criticized at the same time, the judgment in Bilkis Bano’s case is likely to remain enmeshed in Indian public memory for a long time to come. On 4th May, the Bombay High Court apart from upholding the conviction of 11 persons for gang rape and murder convicted seven people including 5 policemen and 2 doctors for destruction of evidence and non-performance of duties. In total, 18 persons were held guilty for the dastardly crime that continues to haunt the public conscience of the country.

It should be recalled that the rape of Bilkis Bano and the mass murder of her relatives in the aftermath of the Godhra incident in February 2002 was amongst the most heinous acts of barbarism unleashed against members of the Muslim community in the state of Gujarat at that time. However, the most talked about aspect of the judgment was the decision of the Bombay High Court not to award the death penalty for three of the eleven convicts, namely, Jaswant Nai, Govind Nai and Shailesh Bhatt.

While laudable in its conclusion that death should not be awarded to any of the three convicts, the Court’s reasoning left much to be desired. The reasoning of the Court to drive home the logic that the case does not constitute a ‘rarest of the rare’ case were the following points:

  1. The case does not involve history sheeters or hard core criminals.
  2. They were motivated by revenge against Muslims in the context of the Godhra violence.
  3. The inability of the Prosecutrix to directly attribute a major role for the convicts against whom the death penalty is sought.
  4. The convicts have been in custody for 15 years ever since the commission of the crime.

While none of the above mentioned factors all rooted in factual circumstances of the particular case can conclusively establish the case of ‘rarest of the rare’, given its highly subjective and arbitrary nature, the judges totally overlooked the international jurisprudence pertaining to sentencing in cases involving mass crimes which, is submitted, holds high relevance in this case, despite its obvious ‘obiter dicta’ (non-binding) nature.

International Criminal Law and the Death Sentence

The branch of International Law concerned with individual criminal responsibility for mass crimes is referred to as International Criminal Law. While the Godhra case and its aftermath neither involved any international/quasi-international mechanism for accountability, the case nonetheless involved a mass crime targeting a members of a specific community. This is consistent with the accepted international law principle of ‘Complementarity’ under which Indian Courts have the natural jurisdiction to try and punish cases involving mass violence occurring in their domestic territory. This distinguishes Bilkis Bano and other cases emanating in the aftermath of the Godhra riots with ordinary cases of murder which do not necessarily involve targeted mass violence.

Though International Criminal Law is widely known for creation of international courts like the International Criminal Court (ICC), and prior to it, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) it has additionally set global benchmarks in international criminal jurisprudence like the clear rejection of death penalty for even the most heinous crimes, despite initial differences among countries. The statutes of both the ICTY and the ICTR reject the possibility of death as a punishment. Additionally, none of the context specific hybrid tribunals created under the auspices of the United Nations have the power to impose the death sentence, implying the overwhelming rejection of the punishment in international criminal settings. Among domestic mechanisms only the International Crimes Tribunal (ICT) of Bangladesh has awarded death penalties to convicts but here again the award of the penalties was not without widespread international criticism.

In fact, while death penalty is totally abolished as a punishment by the Rome Statue which created the ICC, life imprisonment is neither a compulsory punishment with Article 77 of the Statute stipulating that ordinarily the punishment should be for a specific number of years which should not exceed 30 years. Life imprisonment is to be awarded only when the extreme gravity of the crime requires it in light of individual circumstances. This clearly shows that life imprisonment has emerged as the punishment to be awarded in cases of extreme brutality and depravity which will have to be specifically marked out and articulated before such a punishment is imposed on convicted individuals.

The norm of avoiding the death penalty in even the most heinous cases though strictly not binding in domestic scenarios reflects the progressive growth and development of criminal jurisprudence at the international level which ought to have nothing less than a persuasive influence on domestic criminal jurisprudence.

While it could be argued that Article 80 of the Rome Statute does not bar States from applying penalties prescribed under their respective domestic law, the Chair on the working group of penalties Norwegian diplomat, Rolf Einar Fife which hammered out the Article was emphatic in his assertion that the existence of the provision in no way influences the present or future limitations in international law on the national sentencing policies including appropriate penalties in light of emerging international human rights benchmarks. This clearly leaves room for domestic criminal courts to factor in international human rights obligations in the form of treaties like the International Covenant on Civil and Political Rights (ICCPR) in addition to sentencing norms of other international tribunals while awarding punishments in cases involving mass violence in respective domestic settings.

In many ways, the criticism leveled against the Bombay High Court for its refusal to award the death sentence flows from its failure to clearly articulate satisfactory reasons for not awarding the death sentence. The failure to cite international criminal justice norms on sentencing have aggravated the lacuna in this regard rendering the reasons unconvincing and jurisprudentially incomplete. BilkisBano’s assertion on her desire for ‘justice’ and not ‘revenge’ is ample proof that closure can be obtained without the necessary recourse to the death penalty when viewed from a victim’s perspective. A judicial reflection by the Bombay High Court on International Criminal law sentencing guidelines could have harmonized Indian domestic criminal jurisprudence with international norms and benchmarks in addition to developing Indian state practice on sentencing norms involving acts of mass violence, which unfortunately, did not happen in Bilkis Bano’s judgment.

Abraham Joseph

Advisory Board Member

Abraham Joseph is a PhD candidate in International Criminal Law from NLSIU, Bangalore and an Assistant  Professor in Ansal School of Law, Ansal University, Gurugram.

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