'Boston Legal' (2004-2008) is one of the more popular American TV series on the 'Law' genre. Created by David E. Kelly, 'Boston Legal' ran for 5 seasons and 101 episodic narrations of the lives and the cases conducted by the lawyers of the fictional law firm 'Crane Poole and Schmidt' based out of Boston, Massachusetts. The only real lawyer in that series and that too an alumnus of Boston University School of Law, was the creator David E. Kelly himself!
The two main protagonists in this TV series were Denny Crane (William Shatner, who plays the first "named" partner - Denny Crane and who is immortalized in the pantheon of the 'Star Trek' Universe as Captain James T. Kirk of the USS Enterprise) and Alan Shore (played by James Spader). Alan Shore is the best litigator in the firm and best pals with Denny Crane.
Almost all episodes deal with fictional cases based in Boston courts. However for one episode, in Season 4 Episode 17 Titled 'The Court Supreme', Alan Shore and Denny Crane travel to Washington D.C to argue for a mentally challenged man accused of child-rape before the Supreme Court of the United States (SCOTUS).
Unlike our Supreme Court, the SCOTUS consists of only 9 justices who sit en banc to annually hear approximately 80-100 cases only in open court. During the course of "arguments" before the SCOTUS (consisting of 9 actors bearing remarkable resemblance to the 9 real life SCOTUS Justices), Alan Shore relies on a real-life judgment of the SCOTUS in 'Coker v Georgia' - 433 U.S. 584 (1977), in which case the SCOTUS struck down the mandatory death penalty for rape, where the offence of rape was a standalone offense and not accompanied by any aggravating charge like murder etc.The "judges" promptly dismiss Shore's reliance on Coker, distinguishing it as a case where the rape was committed on an adult woman whereas in the case at hand, the rape was committed on a minor and hence Coker wouldn't apply on facts.
The episode doesn't reveal the judgment that the SCOTUS ultimately passes in that fictional case, but as a lawyer practicing in the Supreme Court of India (SCI), I could only watch, with unalloyed amazement, (and a large dollop of envy!), Alan Shore launching into a theatrical broadside against the "Justices" for letting down the common man and the Constitution. In his argumentative flourish, he says:-
"My point is, who are you people? You've transformed this court from being a governmental branch devoted to civil rights and liberties into a protector of discrimination, a guardian of government, a slave to monied interests and big business and today, hallelujah, you seek to kill a mentally disabled man."
This was not all. He censures the "Chief Justice John Roberts", denounces "Justice Antonin Scalia" and sledges "Justice Clarence Thomas". His partner-in-crime Denny Crane isn't far behind and takes several cinematic liberties, flitting from flatulence to flirtation (at "Justice Ruth Bader Ginsberg") in open court. To the credit of the "Justices" of the SCOTUS, they let Alan Shore and Denny Crane strut out of the Court despite the aforementioned shenanigans. If Alan Shore had tried to pull off this stunt before the SCI, then there was a very real likelihood of Alan Shore being intimately acquainted with the interiors of the Tihar Jail, for a few rather disagreeable nights.
Interestingly, this episode was aired on 22nd April 2008 and merely six days prior to that, the real-life SCOTUS had heard arguments and reserved for judgment, a case based on similar facts. The judgment was delivered on couple of months later in 'Kennedy v Louisiana' - 554 U.S 407 (2008), in which the SCOTUS modified/enlarged the ratio laid down in Coker and scrapped the law meting out mandatory death penalty for child rape also (without any aggravated charges). The SCOTUS relied upon the Eight Amendment of the US Constitution which inter-alia prohibits "excessive" or "cruel" punishments. It also relied on the Fifth Amendment and Fourteenth Amendment (Due Process Clauses) to hold that death penalty law for a convict who though commits rape on a child but does not kill nor intended to kill the victim, is unconstitutional.
Which brings to the position of law, for such type of cases in India.
Section 376 IPC (dealing with Rape) was substantially amended in post-Nirbhaya rape outrage (2012) by the Criminal Laws (Amendment) Act 2013. Section 376A was inserted which provided for punishment of a rigorous imprisonment for a term of not less than 20 years or death if rape causes the victim to be in a 'permanent vegetative state'.
A further amendment in 2018 inserted Section 376AB, where punishment of rigorous imprisonment for not less than 20 years or for the rest of the natural life of the convict or death was prescribed for Rape on a woman less than 12 years of age. Similarly Section 6 of the POCSO Act too was amended to provide for death as one of the punishments that can be imposed upon conviction.
The recent amendments of Rape Laws in India and the provision for Death as one of the possible punishments for rape, is at variance to the SCOTUS decisions in Coker and Kennedy. The SCOTUS has increasingly moved towards adopting a restrictive application of the Death Penalty in Rape cases. In fact in Enmund v Florida - 458 U.S 782 (1982), the SCOTUS overturned the capital sentence of a convict accused of aiding and abetting a robbery during which murder took place but did not kill, nor intend/attempt to kill.
No doubt the nation's Collective Conscience was shocked beyond belief and words when the gory and gruesome details of the Nirbhaya rape case emerged in the public domain. Nirbhaya wasn't the first and unfortunately she isn't the last of India's daughters to fall victim to this barbaric crime. But is the imposition of the Death Penalty the panacea? The Justice JS Verma Committee constituted in the immediate aftermath of Nirbhaya didn't think so. In its report dated 23 January 2013, it does not support Death Penalty as one of the punishments for Rape.
This piece does not seek to make a value judgment either in favour or against the Death Penalty for rape cases. This is not the place or time for it. There are compelling arguments, in favour and against Death Penalty for Rape cases, which would merit an entirely separate dedicated piece. Sooner rather than later, the SCI would be in seisin of this question of law. And on that day, who knows, the spirit of Alan Shore may actually invade an intrepid counsel's soul and permeate the impregnable walls and pierce the impervious minds of our SCI.
Views are personal only
(Author is an Advocate-on-Record, practicing in the Supreme Court of India)
(This is the seventeenth article in the "Law On Reels" series, which explores legal themes in movies.Views Are Personal Only)