December 31, 2018

Capital Punishment & Rape

Misbah Haqani

Capital punishment” word always makes me go back into the times and hits my mind with the same choatic and confusionary question,what it really includes and what not? I remember the first day going through “penology” and seeing the word written in capital letters makes always curious to know more and more about it.
Back in Mughal era,various methods were used in dealing with criminals whether simply criminals or Recidivists. Various torturous methods were used in the execution of condemned criminals so that it may have a retributive effect on others.However today there are only few crimes for which death penalty is imposed. There need to be four characteristics of capital punishment, pointed out in India:
1) Capital punishment is only given for selected seven crimes.
2) 2) Hanging in presence of public is totally abolished.
3) No painful methods are used in executing death sentence.
4) Capital punishment is awarded only by a governing authority.
The Indian Penal Code recognises capital punishment under Eight sections (121,132,194,302,303,305,307 and 396) for different offences. Article 21of the Indian Constitution provides that “no person shall be deprived of his life and personal liberty except according to the procedure established by Law”. On the basis of this Article, the constitutional validity of capital punishment by our Honourable courts on several occasions, if the procedure adopted is “Just, fair and reasonable ” and not “fanciful, oppressive and arbitrary “.However the question regarding awarding capital punishments to rapists was firstly proposed in mid 1999. However this view was no doubt accepted by some people but not by all even National Commission for women in its recommendation made in April 2000 didn’t recommend capital punishment for rape. This recommendation was made on the basis of opinions expressed by social workers, victims of rape, counselors, psychiatrists, NGO’S etc in sixteen workshops organised by state women’s commission’s in different parts of the country. Only four workshops recommended capital punishment, ten were against it and two did not express any specific opinion.
I personally didn’t know what made them to arrive at such a conclusion and to my opinion capital punishment for various crimes especially for the Rape has been continued to be the question of dilemma on our society. Can we punish a rapist with a death sentence? Does such a rape comes under rarest of rare cases? Was there any pre -meditation of the crime? What was the circumstances of rape, heinous or not?Since there is no statutory definition of rarest of rare cases and it is this ambiguity which has caused the delimma in our society.
The unfortunate spine -chilling rape cases of Unnao and Kathua ,a number of people who previously were against the death penalty, for any crime ,are now in support of the capital punishment for voilent and heinous sexual assaults. Continuous shifting of opinions has to be ended by ultimately setting out the clear statutory provisions regarding sexual assault, rape etc by clearly stating death sentences for the culprits.
The question is that every time people don’t need to come out on the roads in order to make the system workable. It is the need of the hour that Criminal Law amendment Ordinance need to amend the Indian Penal Code (IPC),the Evidence Law Act, the Code of Criminal Procedure (CrPC)and the Protection of Children from sexual offences (POCSO)Act to introduce a new provision to sentence convicts of such crimes to death and most important, the speedy justice accompanying with prudence and wisdom.

(The author of this article isa student of law at University of Kashmir. Views are her own.)

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