Abolish Death Penalty India: HC upholds death penalty clause for repeat rape offenders (Maharashtra)

Thursday, August 13, 2020

HC upholds death penalty clause for repeat rape offenders (Maharashtra)

Updated: Jun 04, 2019 01:29 IST

The Bombay High Court amended section of the Indian Penal Code under which repeat offenders in rape cases can be awarded life imprisonment or death penalty.

The Bombay High Court (HC) on Monday upheld constitutional validity of Section 376E of the Indian Penal Code (IPC) which states that a repeat rape offender can be awarded life imprisonment or death penalty. Vijay Jadhav, 27, Mohammed Kasim Shaikh Mohammed Hashim Shaikh, 24, and Mohammed Salim Mohammed Kudus Ansari, 32, who were convicted for the gang rape of a 23-year-old woman at Shakti Mills on August 22, 2013, had challenged constitutional validity of the legal provisions under which they were awarded life sentence in 2014. During probe, the police found the trio had also gang raped an 18-year-old woman on July 31 at the same place.

The amendment brought in place in 2013, after the brutal gang rape of a 23-year-old woman in Delhi in 2012. “Section 376-E is not ultra vires the Constitution,” a bench of justice BP Dharmadhikari and justice Revati Mohite-Dere said while dismissing petitions filed by the three convicts. The bench rejected an argument advanced on behalf of the trio that “Section 376E was arbitrary, disproportionately harsh and therefore violated the mandate of equality enshrined in the Constitution of India”. Their argument further said “the section prescribes death penalty, even when no death (murder) is caused by the accused person. The bench said it would be “highly unrealistic” to compare rape with the offence of murder, as the “consequences are incomparable”. “A victim of rape undergoes a traumatic experience with which she has to live for rest of her life. Rape is a highly reprehensible crime and demonstrates a total contempt for the personal integrity and autonomy of the victim. Needless to state, the stigma that is attached to rape victims is lifelong,” the bench said, adding, “In a sense, the offence of rape can be said to be graver than that of murder.”

The bench said the legislature, while enacting Section 376E, was aware of people’s needs and necessary measures to meet those needs (the growing incidents of rape). It added there was no doubt that “courts have the jurisdiction to interfere when the punishment prescribed is outrageously disproportionate to the offence, but legislature is in the best position to understand the needs of the society”. Besides, the judges said “there were other penal sections that prescribed death penalty for offences involving no murders”. The bench also rejected the argument that Section 376E created a new punishment – imprisonment till death of the offender – that is unknown to the penal law in India. In this regard, the judges referred to Supreme Court rulings holding that life imprisonment means imprisonment for rest of the natural life of the offender and therefore, it was not a new punishment.

In 2013, the three convicts were tried in the two cases simultaneously, and on March 20, 2014, the accused were convicted in both cases. The next day, the trial court sentenced the trio in one of the cases. When proceedings for sentencing in the other case were taken up, the prosecutor presented an application for amendment of the charge added under Section 376E. On March 24, the trial court allowed the application and invoking Section 376E handed death sentence to the trio.

Source: https://www.hindustantimes.com/india-news/bombay-high-court-upholds-death-penalty-clause-for-repeat-offenders-in-rape-cases/story-ju1oScEdZuxAAqNP3EAugK.html

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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George