Is the death penalty for rape is a solution?
IS DEATH PENALTY FOR RAPE A PARAMOUNT SOLUTION?
Author: Sonali Sharma, The Law School, JU
INTRODUCTION
Women have been the victims of Sexual Violence overwhelmingly across the Globe and when it comes to Countries like India there has been an alarming increase in Rape Crimes. Rape in India has been the fourth most common crime[1] with most of the cases unreported. Legal Flaws and social conditioning of the Male dominant society are some of the persistent causes behind Rape Incidences here in India. According to the NCRB data, 4,15,786 Rape cases were Reported in India from 2001 to 2017[2] and there has been a continuous and persistent Increase in Such No. In view of the outpouring Anger in Nation after the Nirbhaya Gang Rape case though Death Penalty as a deterrent Mode of punishment is prescribed, with the victims not hanged till now there is a need for a wider Outlook in this scenario.
RAPE IN INDIA AND LAWS RELATED TO IT
Rape is an unlawful sexual offence committed without the consent of the person against whom it is committed due to physical drive or danger or deceitful demonstration of Perpetuator. Rape as an offence is defined under Section 375 of IPC[3] and chargeable under Sec 376 of IPC[4]. Consent is the chief and deciding factor in Rape. According to Sec 375 IPC,
- It includes non-consensual Penetration or Insertion of Penis, any part of the body, any object into any orifice of Women’s body
- Or It can be Non-consensual touching of any orifice in women’s body orally or makes her do it to him or any other Person[5]
All the above stated acts amount to Rape if:
-Committed against her will to do so
-Without her consent
– Done when she was either intoxicated or mentally of unsound mind
-When she is under Eighteen years of age
-She is unable to communicate consent, obtaining her consent on the pretext of marriage,
-All these circumstances fall under the descriptions given in IPC.
Marital Rape not a Crime in India
Spousal Rape has never been treated as a crime and excluded from the definition of rape in the Indian Penal Code. Marriage acts as a protective shield for the perpetrator of Rape in a Marital Institution. Thus Non-Consensual Sexual Intercourse by a man to his own wife who is below the age of Fifteen years is not treated as Rape which is a glaring example of a Discriminative Approach.
ANTI RAPE LAWS: POST CRIMINAL LAW AMENDMENT ACT 2013
Rape as an offence is clearly defined in Art.375 of IPC along with Sec 376 that deals with Punishment for Rape that varies from 7 years to life Imprisonment. After the Nationwide Outrage on the barbaric and inhumane Rape incident in Delhi on December 16, a need was realized to amend the Laws relating thereto. Justice J.S Verma committee was constituted that recommended some changes that led to the passing up of the Criminal Law Amendment Act, 2013. Out of the several amendments related to sexual violence against women, the following were the amendments related to Rape laws:
1. Insertion of any object into women’s body included in the definition of Rape
2. The death penalty can be given to the criminal in cases where Rape leads to the subsequent death of the women or she enters in “Persistent Vegetative State”.
3. Punishment of minimum of 20 years to be awarded in cases of Gang Rape.
4. Post Criminal Law (Amendment) Ordinance, 2018 Rape of a girl under 12 years of age can be punished with Death Penalty or minimum Imprisonment of 20 years along with fine.
DEATH PENALTY: A DETERRENT MODE OF PUNISHMENT IN INDIA
In total 720 prisoners have been executed in India since 1947[6]. Mostly what is seen that Rapists punished with Death Penalty very unlikely are hanged as they have ample other legal recourses to escape Death Sentence. Death Penalty is awarded in Rarest of Rare cases where there is least or no chance of any reformation or the crime is committed so heinously that Death could be ultimate justice to the Victim. Death Penalty could be beneficial only when given time but if we have a look at the past instances hardly any Rapist or criminal is given timely Punishment. If we look at the Delhi Gang Rape case, even after Supreme Court rejected the final Appeals and upheld the Death sentence on 18 Dec 2019 till now they are not hanged with their dates of execution being shifted to other dates on their filing of petitions.
CAPITAL PUNISHMENT IN RAREST OF RARE CASES:
It was in the year 1980 when the Supreme Court ruled out that the Death Penalty should be awarded in Rarest of Rare Cases[7]. Out of most of them Awarded with the Death Penalty, their punishments have been commuted to Life Imprisonment. Moreover, in the past 14 years, only four convicts have been hanged out of whom the latest was Yakub Menon in 2015. Usually, the Death Penalty awarded in cases where there is little or no scope of Reformation and the crime is so heinous that hanging is the Ultimate Solution.
IS DEATH PENALTY DETERING THE CRIMINALS?
Data shows that Death Penalty is not able to deter the crime rate in a country like India where there is a huge backlog of cases, Delayed trials, corrupt officials and moreover the existing deficiency is in just delivery system. There has been a deep-rooted Structural deformity in our patriarchal system that has led to the rising amount of such heinous crimes. There has been delayed execution that has led to the people losing faith in Judiciary with no effect on the hardcore criminals.
REMEDIES AVAILABLE TO A CONVICT OF DEATH PENALTY
Some of the Alternatives available to a person convicted with Death Penalty are:
1. Mercy Petition under Art. 72 of the Indian Constitution[8]
2. Review Petition and curative petition
3. Commutation of Death Sentence
NEED FOR PROGRESSIVE AND PREVENTIVE MEASURES
The death penalty is against the reformative theory for punishing the criminals but still, it is recommended to deal with the cases that are grossly inhuman and cruel. State should take measures for safeguarding public places where women are exposed to such an inhuman atmosphere. Separate Transport Facilities should be available during odd Hours so that women could reach safely to their homes. Every Street should be facilitated with proper street lights and CCTV cameras to survey what is happening. State should recruit more and more police officials to give night duties at such places where women are prone to Sexual Violence. Moreover, women can also take some protective Measures like learning self-defense Tips, keeping Pepper Spray, immediately Reporting crimes, Saving the police No.s, etc. We can’t say that such measures will completely vanish the crime but can play a substantive role in curbing such incidences to some Extent.
VICTIM BLAMING AND CHAUVINISTIC APPROACH:
In a country like India, there has been a male-dominated society often the victim is blamed for such an act of sexual violence. From the very initial years of her life, a girl is taught to be in limits, not to go out in late night hours, wearing full-body covering clothes, etc, this depicts the orthodox mentality existing among the Average Indian while on the contrary a male is never taught how to behave with other girls and females. Thus the main problem is the chauvinistic approach where women is treated just as an object that can be used and misused with lacking physical strength to fight back this is a victim of approach. It is a need of the hour to change this degrading and inhumane approach.
MEASURES NEED TO BE TAKEN ON THE PART OF GOVERNMENT
There need to be strong measures to be taken from the grass-root level, police should not harass the victims, they must be provided with a peaceful and safe environment to pacify the agony they have faced. All the cases related to sexual violence must be handled properly with due diligence and victims must also come forward and report such heinous crimes. Along with it, the below-mentioned measures can be taken:
1. Speedy settlement of cases.
2. Careful Medical examination of the victim preferably by a female expert.
3. Fast Track courts.
4. Introducing new legislative Reforms.
5. Impartial Judiciary.
6. Women Friendly Atmosphere etc.
EFFICIENCY IN JUDICIAL SYSTEM:
Due to the huge backlog of cases and reduced speed of case settlement, people are continuously losing Faith in Judiciary and when it comes to crime like Rape, though the Criminal Rapist is given strict Punishment, most of the time it is either commuted or not implemented timely. Mostly in high profile cases, the victim is suppressed and not allowed to come forward due to corrupt police officials and bribes, etc.
STRICTER LAWS CAN LEAD TO ULTIMATE SOLUTION
A stricter law from the very beginning in order to curb such type of crimes is the ultimate solution. There is a need to keep a check on the crime rates in society and making stricter laws to prevent and setting an example for the society to keep in mind. Women of all age groups should be treated equally; Rape is a heinous crime Regardless of the Age of Innocent Victims. After the barbaric Delhi Gang rape case, there have been amendments in the criminal law that has been mentioned earlier. Not only must this there be strict implementation of these laws for protecting the interests of the innocent victims.
Recent News:
The UN has called on all nations to stop the use of capital punishment or put a moratorium on it, a day after four men convicted of gang-raping and murdering a 23-year-old woman were hanged in India.
Responding to the hanging, UN Secretary-General Antonio Guterres’ spokesperson Stephane Dujarric said the world organization calls on all nations to stop the use of capital punishment or put a moratorium on it.*
CONCLUSION
Thus though the Death Penalty is not the ultimate solution to curb such crimes, but the judiciary is left with no option to give proper justice to the aggrieved victim. Many of the times it is seen that it does not Act as a deterrent mode of punishment due to the rising amount of Rape incidences in India, overburdened Judiciary is still another hindrance in Justice Delivery System. There is a need for the Government to take Measures from the very beginning for such crime Prevention so that rather than searching for Justice, we curb the Crime Rate from the very beginning, moreover victims should come forward and report such crimes so that the criminal justice system comes into play and people fear Punishments.
[1] Kumar, Radha “ The agitation against Rape”, (2003).
[2] NCRB DATA
[3] INDIAN PENAL CODE, Sec 375.
[4] INDIAN PENAL CODE, Sec 376
[5] Criminal law Amendment Act,2013.
[6] Source: Project 39 A reports by National law University, Delhi.
[7] Bachan Singh vs. State of Punjab (1980)( 2 SCC 684).
[8] INDIA. Const. art.72.
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