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Capital Punishment. This term in itself is hefty and entails an embodiment of the spirit of the law of a country. It is legally authorized killing of a person as a punishment for a crime that has been committed. According to the Article 21 of The Constitution of India, "no person shall be deprived of his life or personal liberty except according to procedure established by law." Capital Punishments have always been a topic of debate within the Judiciary and outside, amongst the media and the masses. The final judgment of life and death is left to a “judge,” who is susceptible to value preferences and error in judgment like any other. It is this that the constitutionality of laws providing death penalty becomes suspect.

Considering the 2012 Nirbhaya rape case; all the accused in the case were sentenced to death, the court ruled the case to be “rarest of the rare.” However, there have been countless more rape cases that have occurred all across the country. It depicts the inefficiency of the “death penalty” being a deterrent to the crime. Also, in Madhya Pradesh itself, a couple of days before this bill was passed, the Trial Court had convicted a man named Vinay for rape and murder of his niece, who was just a thirteen-year-old girl at that time. The prosecution case was that after committing rape, the accused and his juvenile friends killed her by hitting her on the head with a stone and then hanged her from the roof using a red coloured saree. Now as gruesome as it seems, it shows the nature of certain people and what crimes it leads them to do. Rape and sexual assault are an expression of the power of the male over the female.

According to the Ministry of Women And Children, the crime of child sexual abuse is highly under-reported in India. This situation where most cases of abuses go unreported happens due to many reasons like social stigma, safeguarding family honour, a threat to life and adverse repercussions by perpetrators belonging to a supposed higher caste or familiarity or relationship status of the abuser. Additionally, the other operational issues are administrative indifference, a laid-back attitude while registering FIRs at the time of reporting the incident – and also insensitivity, ineffectiveness and re-victimization during various stages of the investigation and other undue delays. These issues need to be addressed at the earliest.

While these judgments are passed as the rarest of the rare cases. The question we need to ask here is, does it matter to execute the convicted person? Would that prevent others from committing the same crime? No! There needs to be a change in the attitude that has to begin at home, from the very fundamentals. So, whatever the crime may be there can be no capital punishment in a civilized society. Life imprisonment or permanent incarceration for the most heinous of crimes, even terrorism should suffice as the most inflicting punishment that a judiciary can give. Nearly 138 countries all over the world have abolished the practice of meting out the death penalty to offenders of serious crimes. It also prevents any chance for the person to be rehabilitated or to improve upon his crimes. It also, in some instances, if a man is wrongly accused or has been framed somehow, it will involve the killing of an innocent person.

Recently the bill that has been passed by the Madhya Pradesh State Assembly states that death penalty will be meted out to a person who has been proved guilty of committing the crime of rape against a girl of age 12 or less. Necessary amendments are to be made in the Indian Penal Code (IPC). After the required amendments, the accused will be booked under section 376 AA and 376 DA of the IPC. Also, there are other aspects of the law that guarantee the protection of children from sexual abuse. The Protection of Children from Sexual Offences Act (POCSO Act) defines any human as a child under the age of 18 years. Even though the POCSO Act has several conflicts, it serves as an umbrella which protects young children, irrespective of gender.

At the moment, judges in India can impose the death penalty in the rarest of the rare cases. Cases which fall under this bracket include treason, mutiny, murder, abetment of suicide and also kidnapping for ransom. All these convictions can result in the passing of a death penalty. Back in 2013, an amendment to the law permitted death as a punishment in cases where rape was fatal, or the incident left the victim in a persistent vegetative state and as well as for certain repeat offenders. Also, there have been cases of false claims where the man is wrongly accused of committing rape of a particular woman, and the woman was proved to have taken undue advantage of the situation and the laws which are presented in our Constitution.

Hence, awarding death penalty by hanging as a punishment for rape is therefore neither a solution nor a deterrent to the crime being committed. On the contrary, legal experts claim that such a punishment may only encourage the perpetrator to eliminate the victim in different ways to escape the gallows instead of stopping the crime itself.

Here’s another question to end this article, if death is awarded in the “rarest of the rare” cases, where the case involves the death of the victim, then how does the bill passed by the Madhya Pradesh State Assembly, of meting out death penalty to perpetrators who rape girls 12 or younger, where the victim doesn’t lose her life, have any significance? The Supreme Court passes a death sentence to the accused of rape in three distinct cases, one where the victim dies. Second, when the victim is left in a perpetual state of disability or a vegetative state unable to perform the activities of a normal person by themselves and thirdly when the accused has committed the crime more than once. The High Court may pass a death sentence, but the perpetrator may move the Supreme Court. Now, can the Supreme Court award a death penalty in this case?



Abrams, Corinne. The Wall Street Journal. September 3, 2015. https://blogs.wsj.com/indiarealtime/2015/09/03/the-reasons-indias-law-commission-says-the-death-penalty-should-be-scrapped/ (accessed November 14, 2017).

IndiaToday. July 30, 2017. https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=India (accessed December 14, 2017).

Kanimozhi. The Hindu. June 5, 2013. http://www.thehindu.com/opinion/op-ed/Why-the-death-penalty-must-end/article12057852.ece (accessed December 12, 2017).

LiveLaw. LiveLaw.in. November 30, 2017. http://www.livelaw.in/mp-hc-commutes-death-penalty-imposed-man-convicted-rape-murder-minor-niece-read-judgment/ (accessed December 14, 2017).

Parthsarathy, Suhrith. The Hindu. September 16, 2013. http://www.thehindu.com/opinion/lead/indias-muddled-thinking-on-punishment/article5131843.ece (accessed December 12, 2017).

PTI. The Hindu. December 4, 2017. http://www.thehindu.com/news/national/other-states/death-penalty-for-rape-of-girls-aged-12-and-below-mp-assembly-passes-bill/article21260343.ece# (accessed December 14, 2017).

Singh, Smriti. Times of India. September 13, 2013. https://timesofindia.indiatimes.com/india/Delhi-gang-rape-Case-diary/articleshow/22455125.cmshttps://timesofindia.indiatimes.com/india/Delhi-gang-rape-Case-diary/articleshow/22455125.cms (accessed December 27, 2017).

The Hindi. October 11, 2017. http://www.thehindu.com/news/national/what-is-the-conflict-between-ipc-375-and-pocso-act/article19839944.ece (accessed December 26, 2017).

Vincent, Monica. Time of India. December 9, 2017. https://blogs.timesofindia.indiatimes.com/toi-edit-page/madhya-pradeshs-blunder-death-penalty-for-rape-is-no-solution-but-further-endangers-child-rape-victims/ (accessed December 14, 2017).

Wikipedia. https://en.wikipedia.org/wiki/Child_sexual_abuse_laws_in_India (accessed December 27, 2017).

 Picture Credits: thewire.in (https://thewire.in/192759/madhya-pradesh-high-court-christian-children-forced-religious-conversion/)


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Written By Indrashish Mitra

A passionate writer and an inquisitive soul. Also, an author.

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