Impulsive clamour

Print edition : January 25, 2013

At a homage to the rape victim in Ahmedabad on December 29. Photo: AMIT DAVE/REUTERS

A campaign organised by the DYFI in Bangalore on December 31. Photo: K. Bhagya Prakash

A poster in Kolkata calling for the death penalty for rapists, on December 27. Photo: Bikas Das/AP

THE vehement calls from some sections of civil society for an amendment to the law dealing with rape in order to provide for the death penalty for those found guilty of the crime have found resonance among some Members of Parliament, as was evident during the debate in the Lok Sabha on the brutal gang rape of the 23-year-old girl in Delhi.

The government has constituted a committee of jurists under the chairmanship of Justice J.S. Verma, former Chief Justice of India, with Justice Leila Seth, former Chief Justice of the Himachal Pradesh High Court, and Gopal Subramanium, former Solicitor General as members, to recommend within a month necessary changes in the law to ensure quick trials and enhanced punishment for those convicted of sexual assaults.

The issue, however, needs to be examined objectively, as any knee-jerk addition to the list of offences that qualify for the death sentence is likely to cause a setback to the campaign for the abolition of the death penalty or at least a moratorium on executing the death sentences in view of the recent admission by the Supreme Court of errors in sentencing in several cases. Besides, many observers have expressed apprehensions that the rapists may kill their victims in order to wipe out any evidence in case the death penalty is prescribed as a punishment.

Although capital punishment can be awarded for non-homicidal offences, the trend the world over is to limit its application to most serious crimes. In India, most death sentences have been awarded for murder under Section 302 of the Indian Penal Code although a large number of offences other than murder can attract the death penalty. Even in cases of murder, the death sentence is not mandatory. It is awarded only in exceptional cases when the alternative of life sentence is unquestionably foreclosed.

The clamour for the imposition of the death sentence for rape either assumes that it should be a mandatory punishment without the alternative of the life sentence or that it should be an optional punishment to be imposed at the discretion of the sentencing judge, the alternative being the life sentence. If the rape results in the victim’s death, the sentencing judge can consider the imposition of the death sentence if there is an absence of any mitigating circumstance in favour of the accused.

The minimum punishment for rape under Section 376 (1) of the IPC is imprisonment for seven years, unless the court gives adequate and special reasons in the judgment for imprisonment for a shorter term. Section 376 also mentions that the maximum punishment may be for life or for a term which may extend to 10 years and shall be liable to a fine unless the woman raped is the accused’s own wife and is not under 12 years of age, in which case the accused shall be punished with imprisonment of either description for a term that may extend to two years or with fine or with both.

Under Section 376(2), if the rapist takes advantage of his official position to commit the crime, or if he knew that his victim was pregnant or under 12 years of age, or if he commits gang rape, the minimum punishment is 10 years’ rigorous imprisonment and the maximum may be for life, and he shall also be liable to a fine. The sentencing judge is required to mention adequate and special reasons in the judgment if he imposes a sentence of imprisonment of less than 10 years.

Currently, the National Crime Records Bureau (NCRB) has no data on its website to show how many persons convicted of rape have been sentenced to life. If judges are already reluctant to impose the maximum punishment of life imprisonment for rape, the option of the death sentence is unlikely to change their sentencing decisions. According to Indira Jaising, the Additional Solicitor General of India, judges rarely impose life imprisonment on rapists.

The NCRB data show that the number of rape cases rose from 2,487 in 1971 to 24,206 in 2011. The charge-sheeting rate for rape cases in 2011 was 93.8 per cent, whereas the conviction rate was just 26.4 per cent, thus suggesting that a substantial number of rape cases do not result in conviction, let alone a life sentence, to act as a deterrent. The conviction rate for murder in 2011 was 38.5 per cent, which shows that investigation and trial are more challenging in rape cases than in murder cases.

Apart from seeking to punish the offence of murder, the IPC provides for capital punishment for certain non-homicidal offences or for criminal conspiracy to commit those offences that carry death sentence as the punishment (Section 120B)—for waging war or attempting/abetting to wage war against the Government of India (Section 121); abetment of mutiny actually committed (Section 132); and perjury resulting in the conviction and death of an innocent person (Section 194); threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person (Section 195A); abetment of suicide by a minor, insane person or intoxicated person (Section 305); attempted murder by a serving life convict (Section 307(2); kidnapping for ransom (Section 364A); and dacoity with murder (Section 396). All these provisions prescribe the death sentence as an optional punishment (with life imprisonment and fine as other options) to be determined by the sentencing judge. Section 303, which prescribed mandatory death sentence for the offence of murder committed by a life convict, has been declared unconstitutional by the Supreme Court.

The death penalty is also awarded under a number of other laws, such as laws relating to the armed forces; the Commission of Sati (Prevention) Act, 1987 (Section 4(1)); the Narcotic Drugs and Psychotropic Substances (Prevention) Act, 1985 (Section 31A, as amended in 1988); the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Section 3(2)(i)); the Explosive Substances Act, 1908, as amended in 2001 (Section 3(b)); the Arms Act, 1959 (as amended in 1988) (Section 27(3)); and the Unlawful Activities (Prevention) Act, 1967 (as amended in 2004) (Section 16(1)). In addition, there are a number of State laws that allow the imposition of capital punishment.

Section 27(3) of the Arms Act imposes mandatory death sentence with no alternative sentencing prescribed. The Supreme Court has recently declared this provision unconstitutional. Section 3(2)(i), Part II, of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act also prescribes mandatory death sentence for an accused who gives false evidence resulting in the conviction and execution of an innocent S.C. or S.T. person. An analogous provision in the IPC, Section 195A, however, prescribes the death penalty as an alternative punishment. The National Advisory Council (NAC) is currently working on a proposal to make the death penalty an optional punishment under the S.C./S.T. (Prevention of Atrocities) Act.

Recently, the Bombay High Court read down Section 31A of the Narcotics Drugs and Psychotropic Substances (Prevention) Act, 1985, prescribing the death sentence, as an optional rather than a mandatory punishment. A Bill to amend the Act in accordance with the judgment is pending in Parliament.

There is no evidence to suggest that the death penalty has either brought down the crime rate or deterred probable offenders even as an optional punishment to these non-homicidal offences. Evidence also does not suggest that the sentencing judges are inclined to award the optional punishment of the death penalty in these non-homicidal offences, which shows that the judges themselves do not consider the death penalty a proportionate punishment for such offences.

Prescribing the death sentence as the mandatory punishment for rape is unlikely to pass constitutional muster. As an alternative punishment to the life sentence, it is unlikely to make any difference to the current sentencing trend or deterrent effect.

Besides, many women’s rights activists have opposed the demand for prescribing the death penalty for rape because it equates rape with murder and condemns the rape survivor, who aspires for a better future, to the state of a living dead.

But the cases of rape-cum-murder fall under different category. According to A.P. Shah, former Chief Justice of the Delhi High Court, there are conflicting judgments by the Supreme Court on rape-cum-murder. Therefore, the trial court has to take into account the circumstances of the accused in such cases before concluding whether they deserve the death sentence or not.

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