Tuesday, March 28, 2023
HomeJudiciarySplit between SC & state courts over death penalty in rape cases

Split between SC & state courts over death penalty in rape cases

Bombay HC upholds validity of death penalty for repeat offenders of rape or sexual assault, months after apex court took a softer stand on the issue.

Text Size:

New Delhi: A division bench of the Bombay High Court Monday upheld the constitutional validity of death penalty or life imprisonment for repeat offenders of rape or sexual assault, triggering a debate about the prevailing contradictions between institutions about capital punishment.

An increasing number of state courts uphold death penalty, but legal observers say there appears to be a strange dichotomy, with the Supreme Court treading more cautiously on the issue. Even the Law Commission has suggested abolishing the death penalty, except in cases involving terrorism.

Only last year, the Supreme Court commuted 11 death penalties to life imprisonment, while rejecting the review plea filed by the 2012 Delhi gang-rape case convicts. But states like Madhya Pradesh and Arunachal Pradesh are passing laws for death penalty.

“The larger problem with law-making in our country is that it is rarely ever evidence-based,” said Surendranath, executive director of Project 39A, at National Law University, Delhi.

“Sexual violence is a deeply sociological problem that cannot be solved by knee-jerk legislative amendments.”

What Bombay High Court said

The high court’s verdict came on a plea filed by persons who were accused in the August 2013 gang rape of a photojournalist in Shakti Mills, Mumbai.

Repeat rape is to be viewed more seriously and, therefore, a more stringent punishment is prescribed, the high court said.

Justices B.P. Dharmadhikari and Revati Dere backed the Parliament’s decision for a harsher sentence, suggesting it was “to send a strong signal to the accused persons not to indulge in the offence of rape”.

The court also clarified that the death penalty for a repeat offender was not the only alternative.

In its 117-page judgment, the high court said the legislature is in “the best place to understand the needs of the society”, but the courts have jurisdiction to interfere when the punishment prescribed is “outrageously disproportionate to the offence” or “inhuman or brutal that the same cannot be accepted by any standard of decency”.

It said the Parliament, “while making its desire clear also did not encroach on the Court’s power and discretion, and left the field of punishment open for the Court, to choose a “just” punishment”.

“Attempt is to strengthen the law,” said the court.

The court stressed the need for the State to enact legislations and introduce a “mechanism to keep a track/watch on sex offenders, to prevent repeat crimes”.

Dichotomy between legislature and courts

In a November 2018 verdict delivered by a bench led by now retired Justice Kurian Joseph that upheld the constitutional validity of the death penalty by a 2:1 majority, the judge had penned a powerful dissent note and sought a re-examination of the capital punishment.

Senior advocate Colin Gonsalves said capital punishment laws are being reversed around the world, but “India on the contrary is a blood thirsty society. It upholds the notion of revenge and bloodlust. If courts start looking at demands of the people, it would be a wrong way to look at the death penalty”.

He pointed to the 262nd Law Commission report on the death penalty in 2015, which recommend its abolishment except in terror cases.

Death penalty, a populist tool for governments

In 2017, Madhya Pradesh became one of the first states to amend the law to hang those who have been convicted of raping children under the age of 12.

In June last year, Madhya Pradesh CM Shivraj Singh Chouhan condemned the alleged kidnap and rape of an eight-year-old in Mandsaur and said the rapists were a “burden on the earth” who do not deserve to live.

Since then, Madhya Pradesh has accounted for almost 22 of the 162 convicts who were sentenced to death by lower courts in India last year.

Last year, Arunachal Pradesh became the fourth state to pass a legislation allowing the death penalty in child rape cases. The bill found support in light of the 170 per cent increase in the number of child rape cases in the past few years.

In the wake of the outrage over the Kathua rape-murder case last year, the Modi government passed an ordinance and amended the POCSO Act allowing death penalty in cases of rape girl below 12 years of age.

Surendranath called it “a quick-fix for a political problem”, and added that this is just an “illusory solution to the social problem of sexual violence”.

“The death penalty ultimately is a terrific political distraction from very difficult social questions,” said Surendranath.

Also read: SC allows post-conviction mental illness to be a factor in deciding death penalty appeals

Subscribe to our channels on YouTube & Telegram

Support Our Journalism

India needs fair, non-hyphenated and questioning journalism, packed with on-ground reporting. ThePrint – with exceptional reporters, columnists and editors – is doing just that.

Sustaining this needs support from wonderful readers like you.

Whether you live in India or overseas, you can take a paid subscription by clicking here.

Support Our Journalism

Most Popular