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A Rope for Rape?

JURIST Guest Columnist Ashish Goel, an LL.M. candidate at King's College London, discusses a recent death penalty conviction and how to improve India's current system...

The death penalty debate in India largely centers on the same old but rephrased arguments based on deterrence and reformation. People rarely questioned the power of the Indian state to take lives. In this piece, I argue that the laws on capital punishment in India are so vague that they cannot be judiciously implemented.

After the brutal gang rape, attempted murder and eventual death of a 23 year-old medical student in India's capital in December 2012, the collective public opinion was that any justice falling short of the death penalty was no justice at all. The Additional Sessions Judge Yogesh Khanna, who pronounced death for all the accused, had perhaps, succumbed to this public opinion. While the Delhi High Court begins to hear the death penalty reference against the four convicts on a daily basis, the family of the rape victim, who earlier stated that they had no "room for mercy" for the accused, felt relieved by Khanna's sentencing.

The capital punishment sentence caused celebration worldwide, but there are a minority with reservations about the death penalty and its deterrent effects on sexual offences, particularly rape. For example, some women rights activists feared that the death penalty would encourage the offender to murder the victim to destroy the evidence against him. Others argue that the death penalty, which deviates from the core issues of police reforms and improper legislative framework, is, if anything, an ad hoc, transient solution. The driving factor in both of these propositions is the lack of deterrence in capital punishment.

At the time of the gang rape in December 2012, Indian laws did not use the death penalty in rape cases unless the victim was murdered. Capital punishment for homicide, however, is not unqualified. In the 1980s, the Indian Supreme Court evolved the phrase "rarest of rare cases," which guides death penalty sentencing in India. Over time, the jurisprudence progressed to show that hardened convicts must be sentenced to life imprisonment as a general rule and that the death penalty may be meted out in certain exceptional cases that could be said to be the "rarest of rare."

There is no definition of "rarest of rare," but the phrase insinuates an impossibility of the convicts' reformation or rehabilitation. "Rarest of the rare" analysis is guided by the nature of the crime committed, the history sheet of the convicts and the age and social status of the convicts. The determination of these factors takes place inside court rooms and, some argue that, the phrase "rarest of rare" is "judge-centric": the sentencing reflects the mood of the judges sitting on rape trials on a case by case basis. At times, the judges themselves are not confident about their verdicts: some judges have admitted sentencing 13 convicts erroneously to death on an incorrect understanding of "rarest of rare." It is, perhaps, this fear of gross judicial error that led a judge to declare recently that the sentence of death penalty by judges is, after all, the "will of the people."

Several lives have been lost amidst this cloud of ambiguity. Take for instance, the recent execution of an alleged Kashmiri terrorist, Afzal Guru, who was supposedly involved in the December 2001 attacks on Lok Sabha—India's lower house of Parliament. Activists believe that Afzal Guru—whom the Supreme Court found had no involvement with any terrorist group — was denied the right to a fair trial and that his secret execution was a mockery of India's rule of law. There, the Supreme Court stated that, the act of attacking the Parliament shocked the "collective conscience" of the nation and constituted a "classic example" of the "rarest of rare." Sadly, the court did not look at other mitigating factors while sentencing Afzal Guru.

Indian laws concerning sexual offences against women, particularly rape, have changed drastically after the December 2012 gang rape incident. The background facts that led to these changes in Indian criminal laws are summarized succinctly in a previous post on JURIST. The Criminal Law Amendment Act 2013 [PDF] expands the definition of 'rape' and section 376A punishes an act of rape which results in the death of the victim or leaves her in a "persistent vegetative state" with the death penalty. This implies that, rape does not, even today, warrant death penalty unless it is accompanied by murder of the victim or leaves her in a "persistent vegetative state."

Section 354(3) of India's criminal procedural law requires judges to advance "special reasons" for death penalty sentencing or to put it in perspective, "special reasons" to suggest why the case falls under the "rarest of rare" category. Khanna first took into account several mitigating factors put forth by the defense such as socio-economic status and age of the convicts but then dismissed all of them, including the fact that the convicts were under the influence of alcohol — considered to be a mitigating factor by a Supreme Court judge in 2011. Thereafter, Khanna continued to describe the agony that the victim went through, prior to and after the act of rape and, stated that the incident which "shocked the collective conscience" fits the sentence of death penalty before breaking the nib of his pen.

The death penalty in the December 2012 gang rape incident is largely founded on the "beastly" rape and murder of the victim. The last time a rapist was sentenced to death in India was in 1994 for raping and then killing a 14 year-old girl. Both these cases have one thing in common: both erupted significant public outrage which eventually guided the death penalty sentencing. And so far as the actual sentencing is concerned, a careful reading of both judgments will suggest that efforts were being made by the judges to establish why the death penalty was adequate instead of why a life imprisonment was inadequate. But unlike the 1994 rape and murder convict who was hanged in 2004, the convicts in the 2012 incident await several appeals and, possibly, the President's clemency.

The Delhi gang rape incident caught worldwide attention for all the right reasons. India has a history of violence against women—from sati, to child marriage, to female foeticide, to forced prostitution and to rape. However, these deep-rooted social evils cannot be eradicated overnight through a convenient, transient alternative such as capital punishment. India needs to show that it is not soft on crimes against women by bringing about systematic changes and not solely by executing those accused of such crimes.

Ashish Goel graduated from National University of Juridical Sciences. Currenly, Goel is pursuing his Masters in Law at King's College London. He blogs on Indian laws here and can be reached at ashish.g@nujs.edu.

Suggested citation: Ashish Goel, A Rope for Rape? JURIST - Dateline, Oct. 21, 2013, http://jurist.org/dateline/2013/10/ashish-goel-death-penalty.php.

This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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