Abolish Death Penalty India: IPC section on death penalty for rape legally right: HC told (Bombay)

Wednesday, May 29, 2019

IPC section on death penalty for rape legally right: HC told (Bombay)

04 MARCH 2019 Last Updated at 9:11 PM | SOURCE: PTI

Mumbai, Mar 4 The Indian Penal Code section that prescribes death penalty for repeat rape offenders was rightly introduced by the legislature to impose a deterrent against such crimes, the amicus curiae in the Shakti Mills gangrape case told the Bombay High Court on Monday. However, the application of this Section 376 (E) in the present case could be questionable, the amicus told a bench of justices B P Dharamadhikari and Revati Mohite-Dere which was hearing a challenge to the constitutional validity of the provision through writ petitions filed by the three death row convicts in the Shakti Mills case.

Section 376 (E) of the IPC that provides for the death penalty for repeat rape offenders was introduced by the Centre through an amendment in existing laws in 2013 following the December 2012 gangrape case in New Delhi. Advocate Abad Ponda, appointed by the court as the amicus curiae to assist it in the case in 2014, told the HC that the section was in consonance with all legal and constitutional principles. However, the section's application in the present case could be questionable, Ponda said. Earlier, during the hearing, the bench had asked the Union government what was the purpose of introducing section 376 (E) of the IPC since another sub-section, sub-section A of section 376, already prescribed the maximum punishment of death for offences of rape.

However, both the Union government and the amicus curiae defended the new section. They told the HC while sub-section A dealt with a grave case in which the victim died, or was reduced to a vegetative state, section 376 (E) provided that a person previously convicted under any sub-section of section 376 was liable to be sentenced to the maximum punishment of death for the subsequent offence of rape, if the court deemed fit. However, while the Centre has maintained that such repeat offence can occur anytime after the first offence, Ponda told the court the accused person could be termed a repeat offender only if the second offence was committed after he was convicted for rape for the first time.

The amended law has been challenged by Vijay Jadhav, Mohammad Kasim Bengali and Mohammad Salim Ansari, who were sentenced to death by a sessions court in April 2014 for raping a photojournalist in Shakti Mills compound here on August 22, 2013. The sessions court had awarded them the death penalty as they were also convicted for having raped a telephone operator in July 2013. The trials in both cases were held simultaneously and the conviction was handed out the same day. However, the sentences were awarded to the convicts within a period of two weeks from each other. The sessions court first pronounced the punishment in the telephone operator case, sentencing the convicts to life imprisonment.

It subsequently allowed a prosecution plea to charge the convicts under Section 376E and awarded the death penalty to three out of the five convicts in the Shakti Mills case. The three, however, challenged the death sentence and the constitutional validity of Section 376 (E). Their counsel in the HC, advocate Yug Chaudhry, has argued that the first conviction ought to be secured before the second offence was committed for Section 376E to be applicable in a rape case. AYA RSY RT

Source: https://www.outlookindia.com/newsscroll/ipc-section-on-death-penalty-for-rape-legally-right-hc-told/1489937 (accessed on 29 May 2019)

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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

Abolish Death Penalty India

Wednesday, May 29, 2019

IPC section on death penalty for rape legally right: HC told (Bombay)

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