May 19, 2013

Is Capital Punishment for Rapists Justified?

In this Guest Post, N.U.J.S. students Prateek Bhandari (5th year) & Waseem Shuaib Ahmed (4th year) discuss if capital punishment for rapists is justified. Views are personal.
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The Indian criminal justice system, envisages death sentence to be imposed only in cases of murder and mutiny. This scheme of things is neither random nor accidental. The confinement of the death sentence to only specific crimes involving murder is rather deliberate. This is because death penalty differs from all other forms of criminal punishment, not in degree, but in kind. It is unparalleled in its total irrevocability and in its rejection of the rehabilitation of the convict as an essential object of criminal justice.

It is the uniqueness of the crime and the sentence that led our lawmakers to confine the death penalty to the crime of murder. And even for murder, our criminal jurisprudence has evolved the standard of ‘the rarest of rare cases’ when the court feels that reformation and rehabilitation of the convict is out of the question. In the Indian criminal justice system, life imprisonment is the rule and death penalty is an exception. Thus, any suggestion that the death penalty should also be introduced in cases of crimes against women is a radical suggestion that directly challenges the existing criminal jurisprudence of India. The onus is on those who argue for the death penalty in such cases to show that such crimes also bear the quality of irrevocableness which is specific to murder. 

The question of introducing the death penalty for heinous crimes against women has been raised in the context of the widespread disillusionment with the ability of the state to protect women from such crimes. This disillusionment became very apparent immediately after the gang rape in Delhi last December which led to widespread protests across the nation. Death penalty was suggested as an option because of the belief that the existing criminal law was too lenient on offenders and therefore the punishment had to be enhanced. However, the real problem is not with the quantum of punishment, but with shoddy police investigations, ineffectual prosecutions, judicial delays, etc.     

As the law stands, life imprisonment is the maximum punishment for rape which normally turns out to be a term of 14 years because of commutation of the sentence. If the death penalty were to be introduced, the Court’s options would then become limited to either a term of 14 years or the death penalty. Whereas the term of 14 years may seem inadequate, the death penalty too would seem excessive and disproportionate to the enormity of the crime. To balance the two extremities, a life imprisonment without the possibility of remission/ commutation is proposed, which will run for the entire duration of a convict’s natural life.

Death penalty for heinous crimes against women is also bound to prove counter-productive. In all cases where rape is committed, the perpetrator of the crime has already invited the death penalty upon himself and would, therefore, not be deterred from murdering the victim. Indeed, he would have a reason to murder the victim i.e. destroying the evidence of rape or other heinous crimes.

Death penalty for heinous crimes against women would be a regressive step in the sphere of sentencing and reformation since the global trend has been towards the restriction of the use of the death penalty and the diminution of the number of offences for which it may be imposed. Thus, apart from repeat offences of rape or rape which leads to murder or a permanently vegetative state of the victim, the requisite circumstances for the justification of such a radical and extreme change to our criminal law do not exist.