Abolish Death Penalty India: "Rape A Very Serious Offence": Centre Defends Death Penalty In Court (Maharashtra)

Wednesday, May 29, 2019

"Rape A Very Serious Offence": Centre Defends Death Penalty In Court (Maharashtra)

The three petitioners were convicted for raping a city-based photojournalist in the premises of defunct Shakti Mills in August 2013.

All India | Press Trust of India | Updated: February 27, 2019 23:31 IST

MUMBAI: Justifying the legislature's decision to provide death penalty for repeat offence of rape, the Union government on Wednesday told the Bombay High Court that rape laws had been amended in 2013 to introduce a powerful deterrent against such crimes. The Centre made the submission before a bench hearing writ petitions filed by the three convicts in the Shakti Mills gangrape case here challenging the constitutional validity of the death sentence awarded to them by the trial court in 2014.

Arguing on behalf of the Union, Additional Solicitor General Anil Singh told the high court that the IPC Section 376, that comprise the penal provisions for the offence of rape, had been amended following much deliberation. None of the provisions introduced through the Criminal Law (Amendment) Act, 2013, was unconstitutional, he noted. "An act of rape is a very serious offence for even when it is non-homicidal, it doesn't merely cause physical harm to the victim, but, it affects her soul and her personality too," General Singh said. "In most instances, because of the stigma attached to the offence of rape, victims do not come forward to register a case.

"Therefore, considering that it is the state''s duty not just to punish, but also to prevent a crime, the new, stricter provisions governing the offence of rape were introduced in 2013," he said. General Singh was arguing before the bench of justices BP Dharamadhikari and Revati Mohite-Dere that is hearing the writ petitions filed by the three convicts - Vijay Jadhav, Kasim Bengali and Salim Ansari. The convicts, through their counsel Yug Chaudhry, had argued on the previous hearing that the death sentence awarded to them violated their fundamental right to life.

They had also said IPC Section 376 (E), under which they had been granted the death penalty, had been introduced by the legislature in "haste" and in an arbitrary manner, without laying down the procedure under the Code of Criminal Procedure for its implementation. General Singh, however, disagreed with their arguments. He said the new provisions were in consonance with legal requirements and they do not need to stand the test of constitutional rights. "Section 376 (E) does not introduce a new category of punishment, and therefore, the existing provisions governing rape laws, the death penalty, and enhanced punishment in cases of repeat offences, are adequate to govern its implementation," the ASG maintained.

'Rape A Very Serious Offence': Centre Defends Death Penalty In Court

The Centre made the submission before a bench hearing writ petitions. (File)

In April 2014, a sessions court in the city held five persons guilty in the case. One of them, Siraj Khan, was sentenced to life imprisonment. A second person, a minor, was sent to a correctional facility. Jadhav, Bengali and Ansari were awarded the death penalty under the then newly introduced section 376 (E) of the IPC since the three had also been convicted in a previous case of gangrape. The trio, however, moved the High Court soon after their conviction, challenging the constitutional validity of section 376 (E). In March 2013, following the December 2012 gangrape case in New Delhi, the Union government amended the rape laws in the country, introducing several stringent provisions, including Section 376 (E).

This section says if a person, who has been previously convicted for rape under IPC Section 376, is subsequently found guilty in a similar offence, the courts can sentence him to imprisonment for the rest of his life, or, even award the death penalty. The three petitioners were convicted for raping a city-based photojournalist in the premises of defunct Shakti Mills in August 2013.

Source: https://www.ndtv.com/india-news/rape-a-very-serious-offence-centre-defends-death-penalty-2000344 (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

"Rape A Very Serious Offence": Centre Defends Death Penalty In Court (Maharashtra)

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