Open Access Research Article
Death Penalty in Rape: A necessary evil? (By - Aditi Singh)
Published Paper
Article Details
Death Penalty in
Rape: A necessary evil?
Authored
By - Aditi Singh
The West Bengal National University of Juridical
Sciences, Kolkata
Abstract
“Feminism is neither about making women
strong nor empowering them, as women are strong and powerful enough; the real
challenge is to change the perception of the world towards them.”
-
By G D Anderson
(Feminist, author and founder of COVA Project)
The incessant global debate around
the necessity and legality of capital punishment takes a tangential turn in
India. A major chunk of population blindly supports the principle of “eye for
eye and tooth for tooth” and find the solution of rape as death penalty. However,
with the passage of time and increased discourse around the matter, a dichotomy
has been witnessed within the close group of countries. One of the admonitions
against the capital punishment furnished by some feminist scholars is that the
original issue remains untouched, and the root cause or disease remains
uncured. They often propose that capital punishment has a tendency to cause the
opposite effect instead of creating a deterrent effect in the society. The
other impediment in its way is the arbitrary nature of the judgments around the
country and enormous discretionary power vesting with the judiciary on the
grounds of “rarest of the rare case” principle. Death penalty stands as an
exception of Article 21 of the constitution and Article 6 of ICCPR, therefore
it becomes matter of utmost importance for discussion. The research paper
intends to analyse the legal stance in India regarding the penalty for rape and
other types of sexual abuse against women in light of Criminal Law Amendment
Acts of 2013 and 2018 and Maharashtra’s Shakti Act. It will investigate whether
capital penalty is a desirable form of retribution in situations of rape and if
it may serve as a solution to the social problem. It will try to highlight
alternatives to the death penalty in order to properly address the issue of
sexual violence against women. It intends to thoroughly discuss the debates
around capital punishment based on political convenience, notion of deterrence,
retributive and restorative form of justice and patriarchal mind-set.
Introduction
“Until an accused is proved that he is guilty, he is presumed to be
innocent. But till the time, the case is established beyond reasonable doubt
and the victim is proven to be truthful, she is presumed to be liar”
?
Death penalty is the legal tender
given by the state to abolish someone’s right to life by following the due
process. However, it has been a matter of contention throughout the globe.
Several countries have abolished it but a few countries like India still sees
it as a viable option to cater the problem of heinous crimes like rape and
gang-rape.[1]
India is a staunch believer of the deterrent effect, death penalty has in the
society. But many feminist scholars argue against this admonition that the
capital punishment further advances the patriarchal notion of women’s honour
related to her sexuality.
The paper intends to delve into the
discussion of the necessity of death penalty in rape cases and shall also try
to decipher on the unceasing debate on the issue that death penalty is often
administered in states for political convenience rather than looking into the
quint-essentiality of the punishment. It shall also discuss various theories of
punishment in the context of rape and shall unfold the efficacy of deterrent
theory of punishment. It shall highlight the feminist view on the matter
regarding promotion of patriarchal notion and the issue of digression from the
root cause of rape. In the latter part,
the paper shall move from philosophical and principle based discussion to the
practical laws and statutes in India. It shall finally delve into the
substitutive solutions possible to the capital punishment and the need to
change the current criminal justice framework.
Analysis
Chapter 1 – Conundrum of judicial discretion
A drastic change in the legal system
came post-independence when the criminal law went through a re-arrangement and
the courts were freed from the burden and statutory mandate of recording the
reasons behind the punishments that they delivered and what made them not
administer death penalty when they had the option to choose it.[2]
But was it really a positive change? Certainly, the provision in the 1898 Act
had a negative connotation attached to it. In a way, it seemed that it was
necessary to avail the option of the death penalty and reason had to be
provided if not availed. However, the legislation currently in place has a
positive tone and demands the reason of administering the death penalty.[3]
The landmark judicial pronouncement in this regard noted that imposition of
capital punishment cannot be limitless and brought “rarest of rare cases” principle into force.[4] It
was clarified that the first option would be to avail life imprisonment and if
the circumstances are of such exceptional nature that even life imprisonment
would not suffice then death penalty has to be imposed. Nonetheless, in the
famous dissenting opinion, Justice
Bhagwati opined that death penalty cannot be the solution to a problem and
he saw it as the violation of individual’s fundamental right to equality and
life.[5] He
discarded the arguments that it qualified the retributive and deterrent theory
of punishment, and upheld basic human right to be of utmost importance. The
five judge bench also enlisted the mitigating and aggravating factors that have
to be kept in mind while imposing penalty.
To note, the entire judgement vests
enormous discretionary power in the hands of judges. Though, it cannot be
denied that it highly depends on the heinousness of the crime and circumstances
around it, and a certain amount of subjective approach is required but due to
the absence of any stringent sentencing policy in our country, it has a
tendency to backfire causing judgements to be enigmatic and indefinite. But
what factors actually lead to the determination of “rarest of the rare cases”, considering each case is heinous in itself,
traumatising the victim for life. As mentioned in the death penalty report that
judges make their decision based on their own understanding, paving a way for
arbitrariness.[6] There
have been instances of sheer vagueness where courts have ignored the mental
condition and agony of women and have ordered her to tie Rakhi to the accused and receive money as gift for Rakhi. Even though, the judgement was
scrapped by the apex court, but it highlights a complex issue of criminal
justice system.[7]
Project 39A also
analyses the drastic effect it has on the people of lower economic strata.
Therefore, it has to be kept in mind that subjectivity has to be removed to an
extent from legal parlance.[8]
Chapter 2 – Penalty IN CASES OF Rape IN India
·
Existing Legal Framework
Since, the beginning of the criminal
law, the punishment for rape laws varied from 7 years to imprisonment for life.
However, a major change came post Mathura
Rape case[9],
where the need for amending the definition of rape was felt and also some
additions were made in the evidence Act[10]
to establish the fact that in rape cases it shall be presumed that consent of
the victim was absent.[11]
Subsequently, major changes were brought in 2013 and 2018. But the concerning
factor in the philosophical arena is the ignition point of these amendments.[12]
The changes were made post the mass backlash and protest in light of the two
most heinous rape cases. Post the infamous Nirbhaya
case[13],
the Verma Committee[14]
determined the “lack of proper and
adequate governance” as one of the aggravating factors behind the
commission of crime. The recommendations were adhered to and the definition of
rape was broadened.[15]
It also, deciphered the punishment extending from imprisonment of life to death
penalty.[16]
However, it had a major backdrop as it neither did look into the similar
problems that occurs due to the laws like AFSPA nor did it deal with the issue
of marital rape. The 2018 amendment came into force in the form of ordinance
and increased the quantum of punishment[17],
but similar to the previous amendment it did not deal with any of the mentioned
issues.
·
Shakti Act: Planting powerful tool for Women
Eyeing specially on the most heinous
crimes like gang-rape and rape, after Andhra Pradesh, Maharashtra passed the Shakti Act, which stands as a bulwark to
the criminal justice system. It has
incorporated capital punishment in the existing criminal justice jurisprudence.
The only pre-requisite is the conclusive evidence furnished in the court which
has the capacity to prove
the heinous nature of the case beyond
reasonable doubt.[18]
Circumstances are also considered while determining the sentence under the Act.
It has also increased the quantum of penalty in such cases. The Act has also
brought significant changes in the application of POCSO Act, and has introduced
death penalty for penetrative sexual abuse.[19]
Certain features of the Act are: -
-
Avoidance
in delay of trial and its completion within 30 days subject to extension of
concerned authority.
-
Till
the passage of the Act, any harm to the modesty of women was considered a
crime, but now in addition to this any threat to a women by any means shall
also be an offence under IPC. [20]
The offender here can be of any gender and the Act can be via any mode,
physical or electronic.
-
With
the advent of technology, the mobile data companies can be made to furnish any
data within 3 days, required for the cohesive investigation of POCSO case.
-
The
Act has also catered to the problem of false sexual harassment cases, and has
mentioned appropriate penalty for the same.
-
The
option of anticipatory bail has been revoked, and only session and higher
courts are authorised to grant bails in well-analysed situations.
-
The
Act states that bail in cases of acid attacks, rape and gang-rape can be
decided only by Sessions court and higher courts. Grant of anticipatory bail in
such cases has also been prohibited.[21]
However, like any other legislation,
the Shakti Act has also faced severe criticism and has been called draconian[22].
Chapter 3 - Death Penalty Vis-À-Vis Society’s
Collective Conscience
·
Deterrence theory of punishment
Often a times, whenever we listen
about such heinous incidents, the very first reaction that comes out is to hang
the offender. So is the calling of the mass population. To begin with, it is
important to look from the policy point of view, as to why it still exists in
our criminal justice system. One of the foremost reason is the “Deterrence theory”, as it is widely
believed that harsher the punishment, stronger the effect. If a person is given
death penalty, others would think twice before committing the same crime.
However, it has been observed that not much efficacy of the theory is seen in
the past few decades. The increase in rate from 121 to 186 in the span of one
year i.e. 2017 to 2018.[23]
On the other side, many scholars
argue that in Indian scenario, where trial is time consuming and torturous for
victim, the harsher punishment serves no purpose in favour of victim. It is
also a fact that to avoid shame, and unnecessary delay victims often do not
report the cases, then merely amending the amount of punishment will not solve
the actual problem.[24]
It is wiser to examine the efficacy
of death penalty by observing the numbers, and the statistics speaks in against
of death penalty having deterrent effect in the society. The best solution to
the problem is strengthening the executive and judiciary which can remove the
impediments in the way of criminal justice system, so that real efficiency of
capital punishment in Indian scenario be realised.
·
Capital Punishment or political Blandishment?
It has been often a times,
scrutinised that to hide a bigger problem, politicians tend to resort to some
unethical ways using the veil of ethics. Similarly, instead of solving the
actual cause of rape and improving safety valves for women, they take harsher
measures on the offender, in order to skip the wrath of public. Institutional
reformation has never been their priority, which can be the solution
ultimately. Scholars have analysed that vote bank politics is one of the
reasons behind it. Even if the state lacks capacity to take any reformative
action, they resort to harsh punishments so that they can be remembered during
their tenure.[25]
Chapter 4 – Feminist Theory Vis-À-Vis Death Penalty
“Words
of sexual or racial abuse and humiliation will be nonsensical syllables in a
society where equality is a truth, not just a term.”
-
Catharine A. MacKinnon
It has
often been contested by many feminist scholars that capital punishment or death
penalty is a staunch promoter of the patriarchal mind-set. They pose this
argument defining the fact that women’s honour and respect is not associated
with her sexuality. The fact that women have the right to choice as do men
have, is disregarded when the claim of death penalty is arisen, as in this way
it promotes the notion that life of a women is equivalent to a dead person
after she is raped. This in a way, also leads to double victimisation of women,
limiting her scope of reconcilement with the society.[26]
However,
the other school of law promoting deterrent theory of punishment argue that the
heinousness of the crime cannot be responded in any other way but death, and it
shall bar other people of society in committing the same.
The paper,
nonetheless opines that this incessant debate needs a lot of deliberation, in
light of the practical difficulty a victim faces post the crime. The mental
agony she suffers is irreparable. Therefore, the approach should not only be to
punish the accused but also to take steps to bring the victim’s life back on
track.
Chapter 5 -
Substitutive Solutions To Death Penalty And The Need Of Sentencing Policy
One of the major flaws in our
criminal justice system is lack of a stringent framework for the judiciary and
executive to adhere to. The famous Malimath
committee took the initiative to highlight the need and importance of
sentencing policy in India.[27]
It cannot be denied that under political and societal pressure, the judiciary
tends to take subjective decisions. In order to avoid the situation, in which a
person’s right to life is taken back and the other person is given relatively
lesser punishment in similar circumstances at some other place, the desire to
bring uniform framework was posed. For curbing this uncertainty, it was
proposed that there should be an establishment of a body headed by the retired
judges of the apex court which can draft the policy. But like any other
proposal, this was not given much heed, however, the matter was brought up
again by Dr Menon[28].
Taking into consideration that the penalty for rape varies widely from ten
years to capital punishment, it is of utmost significance to have a defined
policy framework. Various high courts and Supreme Court from time to time have
also discussed the issue, but all in vain till date. Hon’ble Supreme Court in Prem Sagar’s case[29],
determined that penalty varied from state to state for similar circumstances,
and held that it was highly problematic. In another case, it highlighted that
sentencing policy is the most fragile aspect of the entire system.[30]
This research paper is however, of
the opinion that even though it is not wrong to say that India is in dire need
of uniform and stringent sentencing policy, but it cannot be denied that a
certain amount of discretion has to be vested on the judiciary. No two rape
cases are absolutely same in nature, and it the case is highly dependent on the
circumstances, henceforth a little amount of subjectivity has to be present in
the decision. The author also extends the support in favour of such policy to
come into existence which can remove the loopholes in the system mentioned
above.
·
Alternative to Capital Punishment
The argument of human rights versus
death penalty acquires fire whenever anyone is penalised with the same. There
has been a drastic change in the approach taken by the public at large. The
public who at once, supported the idea of capital punishment as the only
solution is now thinking in a different way and accepting feminist view point
and restorative justice.
The International Covenant on Civil and
Political Rights (hereinafter ICCPR), establishes the international legal
instrument which favours the right to life and human rights of each individual.[31]
Even though the covenant does not have the authority to completely ban the
capital punishment globally, however it sets up the plan which directs the
states regarding commutation of sentencing etc. Similarly, organisations like COSA (Circles of support and accountability)
have demanded the sentencing system to take a back gear and shift to
restorative justice, which will ultimately preserve the human rights.[32]
It is important to
understand what actually is meant by restorative justice. Where other forms of
punishment focuses on penalising one party in order to give justice to the
other, restorative justice provides opportunity to both victim and offender to
reconcile with the society and a chance to guilty to repair the harm caused.[33]
It gives an option to offender for self-realisation and limits his chance to
re-commit the crime, additionally preserving his right to life and his role in
the society. The major objective of COSA is two-fold that is to establish a
sense of duty in each individual of the society towards one another and
simultaneously finish the root cause. However, the approach seems easy in
principle but is very difficult to apply as it requires each member of the
society to be acceptable and tolerant enough to let the offender reconcile with
them and behave normally with them.[34]
Considering its positive effect, it can curb the problem in a long term basis.
Statistical data of COSA has from time to time shown the positive outcome as
the number of re-offence committer has reduced radically.[35]
Nonetheless, the
paper would like to highlight its shortcomings in the third world countries.
India is a country where women are given the status of goddess, but if any
mis-happening occurs, then the same women find death to be the safer option
than to live in the society that questions her integrity again and again. Where
the mass population is illiterate and is the perpetrator of double
victimisation, it becomes a humongous task to make them understand the
importance of being tolerant and acceptable.
Conclusion
Death penalty in all circumstances
has been a matter of controversy and bone of contention between two schools of
laws, one which advocates the right to life of each individual and the other
which sees the deterrent effect of it. Post the 2018 amendment in criminal law
parlance, scenario has changed a lot as it catered to the need of rational and
justified cause before administering the capital punishment in rape cases of
minor girls. The argument of morality in capital punishment can be used in both
ways, favour and against. India, has shown a substantial support towards the
capital punishment which can be witnessed from the statutory framework present.
Using the qualitative and quantitative method of research, the paper has
highlighted how far has the capital punishment or death penalty been successful
in causing deterrent effect in the society. The paper has come to the
conclusion based on the empirical data that the goal of the law makers has not
been fulfilled and it is time for bringing the changes in the criminal justice
system, not only in sentencing policies but also spreading awareness in the
mass. The paper also concludes that it is high time to end the patriarchal
notion prevailing in the society that women’s honour is related to her
sexuality and any harm to it will end her honour. She has similar right to
choice as men. There is a dire need of policy change and institutional
restructuring. Restorative method can be opted via help of closely knitted
people’s association and NGOs, who deal with public at ground level. As has
been mentioned by judges, a stringent sentencing policy should be formulated.
The paper opines that complete removal of discretionary power of judiciary is
not a viable option, and therefore it needs to be considered while drafting the
blueprint.
Article Information
Death Penalty in Rape: A necessary evil? (By - Aditi Singh)
Author Name: Aditi Singh
Title: Death Penalty in Rape: A necessary evil?
Email Id: aditi218068@nujs.edu
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/01
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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