Death Penalty for Rape: Does it actually deter Crime? - Amit Swami Nohar and Khushalchand

Death Penalty for Rape: Does it actually deter Crime?

Author- Amit Swami Nohar

Co-author- Khushalchand Agarwal

यावती गंगा कुरुक्षेत्रे, यावती इष्टति मैदानी

यावती कथा सितालोके , तावत जीवे तू बालिका।

Human rights are superior of all law on the land. From last couple of years we are facing an apex level of crime in nations. For a criminal (offender), victim is just a toy and he/she ill-treated by the offender. Apart of all this, we make such a law which gives them a big-harsh punishment. But it is also clear that many innocent will also suffer this and killed, against justice.

Nirbhya Gang and recently, Dr. Priyanka Reddy rape is an example of administration failure. 

Both are the cases which gives fire to movement for Death sentence to such criminals. But (according to me) the Death penalty is not a solution for this problem.

No doubt that rape is a major challenge in front of law. The girl who suffer this kind of heinous crime, can understand pain behind this. The Indian society is always ready to protest against such crime but it is also clear that if the victim survive than society and their relatives criticise her and nobody will get ready to marry her without any excuse or with respect. But if we look the rape cases after the Criminal Amendment Act, 2013 the picture is like this: in the year 2011-24206, in 2012-24923, 2013-33707. And after this amendment also in 2014-36735, 2015-34651, 2016-38667 and still increasing. 

General Definition of Rape-

Rape is defined in most jurisdictions as sexual intercourse, or other forms of sexual penetration, committed by a perpetrator against a victim without their consent.

If we talk about the definition from a side of a victim, Rape is a Failure of mentality, Morality, Sacraments and Feeding of their Parents and a slap on their upbringing. Rape is end of humanity.

Punishment in Some Countries-

France- In France max. 20 year for rape or Sexual assault, max. 30 years victim died, life imprisonment when it is preceded accompanied or followed by torture or acts of barbarity.

Germany- section-177 if serious not less than 2 years, subsection (3), (4), (5) provide additional stipulations on sentencing depending on aggravating or mitigating circumstances.

Section 178 if the offender through sexual assault or rape causes the death of victim at least by gross negligence the penalty shall be imprisonment for life or not less than 10 years. 

Case laws- 

In the landmark case of Bachan Singh v. State of Punjab the court observed that death sentence may be awarded in rarest of the rare cases in which the alternative sentence of the life is unquestionably foreclosed.

• The Constitution-makers were fully cognisant of the need of death sentence for grave offences like murder and this becomes lucid from certain indications in the constitution. For example- Article 134 provides for the power of the president of governor to commute remit or suspend death penalty and right of appeal to the apex court, espousing the fact that capital punishments are not cruel, unreasonable or unusual.

• In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law inforce at the time of the commission of the crime and not contrary to the provisions of present covenant and to the convention on the prevention and the punishment of the crime of genocide.

There is no consensus among judges-

In the 16 years between 2000 and 2015, 30% of death penalties awarded by trial courts ended in acquittals (and not just reduced sentences) when appealed in higher courts. Another 65% of cases saw the death sentence being commuted, Project 39A found. With this level of uncertainty on what the correct punishment is – and whether the accused are even guilty – sending people to the gallows can have serious consequences? 

Suggestions- 

1. Firstly we should eradicate the illiteracy among the people because this lead to change their mind-sets towards the women. From the childhood we should teach the male child that all are equal and a women is not weak and she is not only for sexual pleasure and procreation of children. 

2. It is a high time that the govt. should setup a committee which should check the strict implementation of the laws made for the rape. 

3. Stress and addiction of intoxication is also a reason for the rape. It is needed by the govt. ban the intoxicated drugs or liquor and start counselling the people.

4. Shifting of focus from reforming substantive law to reforming procedural law.

5. According to Delhi Commission of Women report of 2014 there are 53.2 percent cases of rape which are false. In these cases an innocent will be victimised. There is need to strict investigation by the police so that an innocent cannot be prosecuted. 

Conclusion-

The feeling of social insecurity coupled with the inability of existing societal resources to cope with the problem of capital crimes it would appear, has been the basis for the retention of the death penalty. However, we can no longer shy from the truth. The only logical step to take in the face of overwhelming evidence flawing the efficacy arguments of the death penalty is its abolition. The time is indeed ripe to adopt a reformative mode of sentencing policy that is human right friendly. Yes, landmark judgement should be given to such offenders. But we must to understand, why lawmakers need to get realistic and not fan public sentiments. We must create an environment, where girls can breathe peacefully without any fear.

Thankyou.

©Amitswaminohar

©Khushalchandagarwal