India needs checks and balances for the effective prosecution of a sexual offence. But the death penalty—imposed by a criminal-justice system that often delivers no justice to either accused or victim—is not one of them.
Mumbai: News of grave sexual offences often reignites the debate on the death penalty.
In early October—following nationwide protests sparked off by a video of a woman attacked by a group of men went viral—the Bangladesh government made rape an offence punishable by death.
Widespread protests in December 2012 following the gang-rape and death of a 23-year-old physiotherapy student, led Parliament to amend India’s sexual-offence laws. including the option of imposing the death sentence if the victim was rendered in a “persistent vegetative state” or for a repeat sexual offence. These are in addition to the fact that rape, when coupled with the murder of the victim, is anyway eligible for a sentence of death.
It was public outrage again that led to the 2019 amendment of the Protection of Children From Sexual Offences (POCSO) Act, 2012, to punish “aggravated penetrative sexual assault” of minors with a minimum of 20 years to death as the maximum. A 2018 amendment to the Indian Penal Code (IPC), had already introduced this for the rape of a girl below 12 or for the gangrape of a girl under 12.
There is a high level of intolerance towards sexual offences and the public has a real and legitimate interest in addressing such concerns. Legislative re-imagination has turned towards making offences which do not result in the death of a person, non-homicidal cases, eligible for a death sentence.
Despite the ever-increasing ambit of the death sentence there has been little effort to address systemic flaws in the criminal-justice system, which should enable (1) the victim to report a case, (2) police to conduct a sound investigation, (3) victim protection throughout the trial and (4) make testifying as easy and quick as possible. These require sensitisation of functionaries of the justice system, allocation of resources and more robust implementation of the law than is currently evident.
Introducing the death penalty diverts attention from all of these long-term solutions and seems to suggest that the reason for such crimes is that the punishment is not severe enough.
The Arbitrariness Of The Death Penalty
Womens-right groups have argued that the death penalty is a knee-jerk and populist solution to counter sexual offences. Child-right activists insist that introducing capital punishment for non-homicidal rape may now lead rapists to kill their victims to erase testimonial evidence. Further, since a majority of instances of sexual offence of children are committed by persons known to the child, such a grave sentence might result in fewer cases being reported.
An expansion of offences attracting the death penalty in a country where the death-penalty sentencing framework is fractured and inconsistent is a combination that spells disaster.
The constitutionality of the death penalty was upheld by the Supreme Court in Bachan Singh vs State of Punjab (1980), where a batch of murder appeals was before the court. But it did so only after laying down broad guidelines for when a sentence of death can be imposed.
In his dissenting opinion in Bachan Singh, Justice P.N.Bhagwati held that the death penalty violates Article 14 of the Constitution, which guarantees equality before the law and equal protection by the law. By the time he was writing the dissent, the Supreme Court had begun to read Article 14 to be a safeguard against arbitrary actions.
Justice Bhagwati held that judicial discretion in the imposition of the death penalty was “unguided and unstructured, like a tumultuous river overflowing its banks and that would render the law open to attack on ground of arbitrariness under Article 14”. In the years since, empirical work undertaken on the death penalty in India confirmed his fears.
The sentencing framework in Bachan Singh is followed more in the breach, found a 2008 PUCL-Amnesty India Report after analysing Supreme Court decisions involving the death penalty from 1950-2006. Similar findings emerged from a 2020 report by Project 39A, a think tank, on Death Penalty Sentencing in Trial Courts, an analysis of trial court judgments from Maharashtra, Madhya Pradesh and Delhi from 2000-2015.
Faced with the same set of facts, different judges are likely to reach different conclusions. Sometimes, relevant facts are not considered and, at other times, irrelevant criteria guide the sentencing process, these studies found.
In addition to the arbitrariness in the working of the sentencing guidelines, the 2013 Death Penalty of India Report from Project 39A revealed that a disproportionate impact of the death penalty was on socio-economically vulnerable categories of people. Structural inequities result in the marginalised being more likely to face the death penalty in this country.
No Justice To Either Accused Or Victim
These vagaries and inherent biases of the death penalty plague sentencing in non-homicidal offences as well, ensuring no certainty either to the accused or the victims.
It might also serve us well to remember that the execution of a sentence of death comes at the end of multiple stages of appeals and avenues of seeking clemency. This time extended to the defendant to exhaust all legal remedies will delay the finality and closure of the judicial process—militating against the competing interest of ensuring speedy justice. It might also see an increase in instances of instant retribution, such as the extrajudicial killing of gang-rape and murder suspects in Hyderabad late in 2019.
The death penalty is an exceptional punishment—an exceptionalism recognised in the Code of Criminal Procedure,1973. The choice of imposing a sentence of death over life requires the sentencing judge to provide “special reasons” under section 354(3). Judicial precedent established by Bachan Singh requires the alternative of life imprisonment to be “unquestionably foreclosed” before the imposition of the death sentence.
It is an exceptionalism that is warranted since death is irreversible, and when executed by the instrumentality of law emanating from a flawed criminal-justice system, there must be as many checks and balances as possible.
We need as many checks and balances as possible for the effective prosecution of a sexual offence. But the death penalty is not one of them.
A Regressive Step In Non-Homicidal Cases
The Justice Verma Committee Report that made recommendations on the laws on sexual offences--some of which translated into the 2013 amendments--said the deterrent effect of the death penalty is “a myth”. The report went on to state that it would be a regressive step to introduce the sentence of death in non-homicidal cases.
The regressive nature of the capital punishment was articulated by the late K. Balagopal with characteristic mathematical precision in this 1998 Economic and Political Weekly piece, “Of Capital and Other Punishments”. He argued that when society sought justice, judicial punishment cannot be assumed to be the complete answer to crime. Society, he wrote, must act through its various wings to restore the order which is disrupted by acts of crime.
It would serve society, wrote Balagopal, no purpose if the blame of the crime falls entirely on the criminal and his disregard of the law, irrespective of the circumstances of the criminal or the circumstances in which such crimes come to be committed. Reduced to this, “at the end what we are going to have is not a solution to any of the social or political problems underlying this degeneration but only a more harsh and inhuman criminal justice system”.
Populist legislative amendments in response to public outrage and judicial sanction of the death penalty on the ineligible criteria of “collective conscience”, give legitimacy to the reductionist argument of harsher punishment for harsher crime, without truly engaging with the task of social reorganisation.
Such legislation also does not address the fact that as a society we also have a role, however oblique, in the creation and perpetuation of criminals and that the retributive demand for the death penalty takes us far away from that deep self-reflection.
“The argument against the death penalty is not to condone the crime,” wrote Balagopal. “It is not even merely to emphasise the right to life, dignity and opportunity for reform of the persons on death row, though all these things are important. It is an exhortation against the society and the State to make a positive statement against violence.”
(Sahana Manjesh is an advocate and legal researcher.)