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WILL CAPITAL PUNISHMENT DETER RAPE?

Punishment refers to penalty imposed upon the offender for any offense or fault by the concerned authorities. The object of punishment is to correct the wrongdoer and not wrecking gratuitous punitive vengeance on the criminal.

What is Punishment?

Punishment refers to penalty imposed upon the offender for any offense or fault by the concerned authorities. The object of punishment is to correct the wrongdoer and not wrecking gratuitous punitive vengeance on the criminal. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and men are not improved by injuries.[1]Sentence must bring home to the guilty person consciousness that the offence committed by him was against his own interest as also against the interest of the society of which he happens to be a member.

What is Capital Punishment?

Capital Punishment refers to execution of death sentence after the conviction of an offender of any criminal offense by a court of law. It is to be awarded only in rarest of rare cases. Many may be satisfied with the present legislation on giving of capital punishment but to many of those it’s still not serving the purpose it is deemed to serve. History is evidence to the fact that capital punishment has never acted and would never act as deterrence to crime especially rape.

Definition of Rape

An unlawful activity pertaining to sexual intercourse or penetration on a woman without her consent or against her will amounts to rape. If the victim stays with such stigma in a judgmental society like this, let the rapist also bear or suffer equally if not for revenge but at least for providing justice to both of them.

 

 In Machhi Singh v/s State of Punjab,[1] SC laid down following guidelines:

  • The extreme penalty of death need not be inflicted except in gravest cases of crime.
  • Before opting for the death penalty the circumstances of the offender also requires to be taken into consideration along with the circumstances of the crime.
  • Life imprisonment is the law while death sentence is considered to be an exception.
  • A balance has to be struck between the aggravating and mitigating circumstances before the option is exercised.

     

      Rarest of rare cases are those where courts award death penalty to the offender as no other alternative is left so as to provide justice to the victim as punishment should be in proportion to the crime. On the basis of Doctrine of Rarest of rare case, the capital punishment is inflicted or awarded in India. Capital Punishment is granted in rape cases where the accompanying brutality leads to the death or leaves the victim in a persistent vegetative state and in cases of repeat offenders.

 

Recent Amendments:

Punishment for raping a woman is ten years of rigorous imprisonment which might extend to life imprisonment-Section 376(1). Punishment for raping women below 16 years is minimum twenty years of rigorous imprisonment which may extend to imprisonment for life. Section 376 (3). Punishment for rape on a woman under twelve years of age is defined as a minimum twenty years rigorous imprisonment which may extend to imprisonment for life. Here, death penalty can be awarded. Section 376ABSection 376DA and 376DB states punishment for gang rape on a woman under sixteen years and twelve years respectively. In such cases, punishment would uniformly be imprisonment for life. If a woman below twelve years of age is raped, then death penalty can be awarded. In August 2019, death penalty for the non-homicide offence of penetrative sexual assault on children was introduced by amending the POCSO Act.

Following are the theories of punishment which needs to be taken into consideration whilst dealing with capital punishment.

  1. Deterrent Theory– According to this theory, people are most likely to be restricted from committing crime if the punishment is stringent in nature.
  2. Retributive Theory– The purpose of retribution is to injure the criminal offenders in proportion to their injuries to society and so to relieve them of guilt.
  3. Reformative Theory– It intends to reform an individual as even though he is a criminal, he does not ceases to be a human and would be considered as a great asset to the society. This theory is a mixture of sentiments, emotions and utilitarian motives.
  4. Preventive Theory– This theory helps preventing repetitive crimes by disabling the offender through methods such as imprisonment, death, forfeiture, suspension of license etc.

Can capital punishment deter such crimes?

Many believe in reformation and rehabilitation. In fact no conclusive study shows that death penalty will deter rape. Instead we should strengthen our social culture and bond and avoid discrimination amongst men and women. It is a fallacy that punishing the rapists with capital punishment would help deter rape cases. Capital punishment is unjust and barbaric form of revenge and also an irreversible process. Also death penalty is not feasible in a country like India where there is huge backlog of cases, corrupt officials and deficiency in justice delivery system. Delay in execution has led to the people losing faith in judiciary without any hard-core effect on the offenders.

Statistics-

  • Total Number of Prisoners on Death Row as on 31st December, 2019 –378
  • The Supreme Court in 2019 pronounced the highest number of decisions (27) in capital punishment cases since 2001, primarily under Former Chief Justice Ranjan Gogoi’s tenure.
  • The apex court heard 12 death penalty cases in 2018-2019 but confirmed death penalty in only one case which is Nirbhaya gang rape and murder. Another NLU Delhi study found that 162 death sentences were awarded across the country in 2018. Only 23 were confirmed by the High courts.

Conclusion

The certainty of punishment is of paramount importance than the severity as that would help to deter crime rather than provocation of crime. The police authorities take their own sweet time to resolve the cases may be due to political pressure as well which eventually fades or vanishes crime from the minds of the people. Capital Punishment is brutal and inhumane and also makes the economically weaker offender even more vulnerable. If death penalty is to be awarded, then it is the burden of the courts to prove that option of life is without any doubt is ruled out. Hence, capital punishment shall be awarded in extreme or rarest of rare cases.

References:

  • AIR 1977 SC 1926
  • 1983 SCR (3) 413
  • Criminal Law (Amendment) Bill, 2018
  • https://www.project39a.com/annual-statistics

(1) Comment
  • user2

    Very nice and informative blog. Loved reading it. Keep it up

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