The debate over the capital punishment has in the recent past acquired renewed vigour. The government of the day has been insisting on the increased use of capital punishment for crimes other than murder, particularly rape. Certain women’s group have welcomed this. The judiciary too has been awarding the capital punishment for violent crimes with increased regularity, with the awarding of death penalty to all the 26 involved in Rajiv Gandhi assassination, it was time for the abolitionists
to once again hold a banner of protest. Despite being a party to the ICCPR1 towards abolition of death penalty, India appears to be heading the other way. The Constitutional validity of §302 IPC was questioned before the Supreme Court in Jagmohan Singh v. State of U.P 2 article 14 of the Constitution of India and suffers from excessive delegation. After tracing the judicial decisions which upheld the constitutionality of the death penalty, and the evolution of the ‘rarest of rare’ test in the landmark Bachan Singh case,
by the court in subsequent cases.Till date the capital punishments have only acted as deterrence for those families who could hardly earn bread and butter forget about hiring a smart lawyer. In the year 1994, a man named Dhannajay was given capital punishment for raping and then killing a minor girl. His act as such was brutal calling for severe action against him, but it seems that the ends of justice have not actually been met out. So many cases of murder go not unnoticed but without any punishment because the doer has money to defend himself.
In order to do justice to one person we cannot do injustice to so many others. Why should the innocent family of the rapist suffer for an act for which he the culprit is the only one responsible?Moreover would capital punishment really bring justice? Thanks to the idea of capital punishment that an easier way to do away with the crime has been found by the doers of the heinous crime. To kill the victim and throw her somewhere and move away and if lucky enough then the crime would never
be traced back to the offender. The cardinal questions to be asked here is are the circumstances of the
crime as such that there is no alternative but to impose death sentence?
Hindu dharma talks of nark for evil doers, Muslim talks of jhanum and Christianity talks of hell for evildoers but at the same time without any exception every religion talks of reforms. Giving a chance to the culprit to compensate the victim would go a long way in reforming the person. Moreover Social protestation towards such things would also help in the long run. The unfortunate part is that even the law is very restricted and limited in its definition about rape.§375 IPC specifies that sexual intercourse comprises rape wherein penetration alone suffice to constitute that sexual intercourse which amounts to offence of rape. Least heed has been paid to the fact that rape is much wider a term and as such should be given a much wider interpretation. Even if rape is not done in the strict sense of §375 IPC, the prima facie impression of rape having been
International Covenant on Civil and Political Rights
(1973) 1 SCC 20
Bachan Singh v. State of Punjab AIR 1980 SC 898
Dhananjoy Chatterjee @ Dhana v. State of West Bengal and Ors. AIR 1994 SC 626
on the ground that imposition of capital punishment of death sentence is violative of
it is proposed to examine how the test has been applied Is Capital Punishment Justified in Heinous Crimes Involving Women?
committed does an equal harm to the victim. Nonetheless, it is not intended to take sides; it is said that if justice is to be delivered it should undoubtedly be fair and reasonable. Justice should mean justice. Also if torture is deemed best for the rapist then, why not this torture is constructive? For instance, the convicted can be made to compensate the victim or her family by his income through employment or community services. Even if all this sound a bit dis satisfactory to the victim of rape or her family then it is submitted that capital punishment is quite a merciful punishment for a crime as heinous as rape. Why should the rapist be killed with a pain of just two seconds contrary to the victim who in a society like ours would still live with so much shame and un-acceptance? If the girl has to continue with this stigma throughout out her life let the rapist also live with the stigma of rapist. He should be made to suffer equally, if not to avenge then at least to strike a balance.
By-: Priyan Garg