Can Death Penalty Be Awarded To Rapists In India

Posted on January 4, 2013 in Gender-Based Violence

By Kush Kalra:

State should not punish with vengeance“. Emperor Ashoka

Death penalty has been a mode of punishment since time immemorial. The arguments for and against have not changed much over the years. Crimes as well as the mode of punishment correlate to the culture and form of civilization from which they emerge. With the march of civilization, the modes of death punishment have witnessed significant humanized changes. Presently around 11 mercy petitions from 14 convicts are pending before the President following the rejection of a similar plea from Mumbai Terror Attacks convict Ajmal Kasab. According to a RTI filed by Subhash Chandra Aggarwala, Karnataka has the highest number of petitions pending: four from seven convicts on death row. Since 1981, Indian Presidents have considered and disposed of 98 mercy petitions the latest being that of Kasab. India was among the 39 countries that voted against a UN General Assembly draft resolution which called for abolishing the death penalty, saying every nation had the “sovereign right” to determine its own legal system. The non-binding resolution called for a moratorium on executions with a view to abolishing the death penalty. Recently India hanged Kasab the terrorist who was involved in deaths of many people in Mumbai. The ‘Peoples’ Movement against Death Penalty’ headed by Justice VR. Krishna Iyer described the execution as an “unconstitutional act” of the State.


India has retained the death penalty on the ground that it will be awarded only in the ‘rarest of rare cases‘ and ‘for special reasons’. In fact, India is one of 78 retentive countries and has even retained the death penalty for political offences. The Supreme Court also has refused to lay down a clear distinction of what constitutes ‘rarest of rare cases’ and left it to the discretion of judges hearing the case, knowing that this would lead to a differing set of results. India’s apex court has recommended the death penalty be extended to those found guilty of committing “honour killings” with the Supreme Court stating that honour killings falls within the “rarest of the rare” category and deserves to be a capital crime. The Supreme Court of India has also recommended death sentences to be awarded to those police officials who commit police brutality in the form of encounter killings.

The execution of death sentence in India is carried out by two modes namely hanging by neck till death and being shot to death. The jail manuals of various States provide for the method of execution of death sentence in India. Once death sentence is awarded and is confirmed after exhausting all the possible available remedies the execution is carried out in accordance with section 354(5) of the Code of Criminal Procedure 1973 i.e. hanging by neck till death . It is also provided under The Air Force Act, 1950, The Army Act 1950 and The Navy Act 1957 that the execution has to be carried out either by hanging by neck till death or by being shot to death.
The test laid down in Deena v. Union of India provides that the execution of death punishment should satisfy the threefold test viz;

1. The act of execution should be as quick and simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner’s apprehension.

2. The act of the execution should produce immediate unconsciousness passing quickly into the death

3. It should be decent.

4. It should not involve mutilation.

The United Nations Economic and Social Council (ECOSOC) whereas describes one of the important standard and safeguard against the death penalty enunciated in safeguard No.9 as,
“Where capital punishment occurs it shall be carried out so as to inflict minimum possible suffering.”

People in India are now demanding death penalty for rapists. We have so many mercy petitions pending of people who are involved in murders of many, people with more heinous crimes are not awarded death penalty by state. So is it possible for our legal system to provide death penalty to those involved in rape? Section 376 of the IPC clearly provides that maximum punishment for rape is 7 years to life imprisonment. It is high time to think whether demanding death penalty for rapists is meaningful and purposeful when people with many heinous crimes are roaming free in our society.