‘To be hanged or not to be hanged?’
In this question lies a sharp-edged argument whether ‘Capital Punishment’ should be abolished in India?
As the date of the hanging of the four adult accused in Nirbhaya rape and murder case is postponed owing to the filing of mercy petition by one of the four accused, Mukesh Singh, the intellectual and legal fraternity is again embroiled in the discussion about the relevance and deterrence factor of capital punishment. Under Article 21 of the Indian Constitution, no person can be deprived of his life except according to the procedure established by law.
The first person to be hanged in independent India was Nathuram Godse along with Narayan Apte in the Mahatma Gandhi assassination case, on November 15, 1949.
The word capital punishment is associated with some of the gruesome crimes under the Indian Penal Code (IPC). However, to award a death penalty requires a lot of weighing of facts and pieces of evidence in the court of law. A person can be awarded death penalty only in the rarest of the rare case.
This precedent was established by the Constitution Bench judgement of Supreme Court of India in Bachan Singh vs State Of Punjab (1980). ‘Rarest of rare case’ is solely decided upon on the discretion of the Judge. Here lie the prudency and humane factors of law and the person who carries the responsibility of delivering justice to the aggrieved party or the victim.
The following are the offences against which capital punishment can be awarded to the guilty:
Capital Offences, Section Under IPC Or Other Law And Nature Of Crime
120B of IPC
Being a party to a criminal conspiracy to commit a capital offence.
121 of IPC
Waging war against India.
132 of IPC
Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny.
194 of IPC
Giving or fabricating false evidence with intent to procure a conviction of a capital offence.
302, 303 of IPC
Murder
305 of IPC
Abetting the suicide of a minor
Part II Section 4 of The Commission of Sati (Prevention) Act, 1987
Aiding or abetting any act of Sati
364A of IPC
Kidnapping, in the course of which the victim was held for ransom or other coercive purposes.
31A of the Narcotic Drugs and Psychotropic Substances Act, 1985
Drug trafficking in cases of repeat offences
376AB of IPC; 42 of Protection of Children from Sexual Offences Act, 2012 (POCSO) and Criminal Law (Amendment) Act, 2013
Rape and gang rape of a girl under 12 years of age.
396 of IPC
Dacoity with murder. In cases where a group of five or more individuals commit dacoity, and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.
376A of IPC and Criminal Law (Amendment) Act, 2013
Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender.[46]
Bombay Prohibition (Gujarat Amendment) Act, 2009
Only in Gujarat: Manufacture and sale of poisoned alcohol which results in death(s).
The Code of Criminal Procedure (1898) called for the method of execution to be hanging. The same method was adopted in the Code of Criminal Procedure (1973). Section 354(5) of the above procedure reads as “When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead.” The hanging method is a long drop, the method devised by William Marwood in Britain.
In the recent Nirbhaya case, the four convicts wait for the outcome of the mercy petition. The common man of the nation feels that they should not be spared as the nature of their crime was heinous and barbaric. This shall set an example and act as a deterrent judgement. However, another question which arises at the same time is why the accused of Unnao rape case or Kathua rape case have been slapped with life imprisonment instead of the death penalty? In both cases, the victim was brutally raped and murdered. Was the pain, agony and trauma of the family any lesser?
For crimes like rape of minors, there should be no mercy. The persons committing such sick crimes are a danger to the future of society. Whenever there is a case of waging war against the nation or act of terrorism, the convicts are sent to gallows without much furore. The same should apply to the rapists of a minor. Though, the adult victim of these heinous sexual crimes also suffers an equal amount of trauma and stigma throughout life.
The debate regarding the abolishment of the death penalty has been taking place since long past. Some of the human rights activist and judicial expertise feel that death sentence is against the principle of natural justice. That, no human has the right to take the life of another human being as it violates the fundamental right of a citizen. Also, they argue that the death penalty doesn’t act as a deterrent punishment. There is no record or evidence that the death penalty has contributed to lowering the crime rate.
However, what they overlook is the pain and agony the victim had undergone, fatal one in most of the cases, leaving behind a jeopardized family. The whole system and process of justice delivery in India consume a lot of time, sometimes a whole lifetime. During this period, the family of the victim has to undergo a lot of social and financial strains along with the stigma if the case is of rape.
With the rise of crime against minors, the laws need to become stringent and applied with swiftness and sans any bias towards caste, community, creed or class difference owing to the financial strength of the accused. Unfortunately, social status and money play a vital role in legal matters in India. The use of muscle power by the privileged class often leads to failure of justice, and the victim not only loses his/her case but hard-earned money too.
Though denied by the authorities, it is pretty clear that some of the influential convicts enjoy a lenient atmosphere in the jails with facilities of normal life. Also, the time of parole and early release due to good behaviour can lessen the gravity of the crime the convict has committed. Thus, in the cases of heinous crimes, life imprisonment does not serve as the punishment in totality.
No doubt, the death penalty is something which actually hangs the head of humanity of a civilised society in shame, but sometimes message needs to be delivered strongly and concretely. Even after so much protest and march against the Nirbhaya case, innumerable rape cases continued to happen. But, a landmark decision will definitely act as a deterrent and contribute a little in changing the mindset of society.
We all believe in reformative punishment, but when you look at a three-year-old victim who was brutally murdered and repeatedly raped by the monsters, there is no other punishment other than death. Because, such crimes are not rarest of the rare, but cruel-est of the cruel.