Capital Punishment: Should it be gender biased?

Prachi Kumari, Student, Law School, BHU, Varanasi

Honourable President Pranab Mukherjee late last month rejected Renuka Kiran Shinde and her sister Seema Mohan Gavit’s mercy petitions. Now the Maharashtra Government is all set to hang them. Two Kolhapur women, who were sentenced to death in 2001 for kidnapping 13 children and killing nine of them, may become the first women ever to be hanged in India.

In India, as per directions of the Supreme Court, death penalty is used very sparingly and is awarded only in the cases, which fall under ‘rarest of the rare category’. The test of ‘rarest of rare’ case was laid down by Honourable Supreme Court for the first time in the case of Bachan Singh V State of Punjab ((1980 (2) SCC 684)). The apex court laid down a few principles which were to be kept in mind while deciding the question of sentence. One of the very important principles is regarding aggravating and mitigating circumstances. It has been the view of the court that while deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case has to be drawn. Full weight age should be given to the mitigating circumstances and even after that if the court feels that justice will not be done if any punishment less than death sentence is awarded, then and then only death sentence should be imposed.

Again in Machhi Singh V State of Punjab ((1983 (3) SCC 470)), the court laid down: – “In order to apply these guidelines inter alia the following questions must be asked and answered:-

  1. Is there something uncommon about the crime which render sentence of imprisonment for life inadequate and calls for a death sentence?
  2. Are these circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weight age to the mitigating circumstances which speaks in favour of the offenders?

In the present case, While awarding the death sentence to the sisters in 2001, Judge G L Yedke in Kolhapur had described the nine kids’ murders as ‘the most heinous’, and observed that the two sisters seemed to have enjoyed killing the children.

Capital Punishment has always been a controversial issue and in the present case as well, there is possibility that some NGOs and Human Rights activities may make hue and cry over gender issue.

In India, an offender is given so many chances to defend himself/herself. For instance, after the award of the death sentence by a sessions (trial) court, the sentence must be confirmed by a High Court to make it final. Once confirmed, the condemned convict has the option of appealing to the Supreme Court. If this is not possible, or if the Supreme Court turns down the appeal or refuses to hear the petition, the condemned person can submit a ‘mercy petition’ to the President of India and the Governor of the State.

This system ensures protection of an innocent person from death penalty and is gender-neutral. I strongly support this system and want every criminal to be punished be it male or female. If a woman can commit such heinous crime, she must be awarded the same penalty a man gets. Therefore, this system should stay gender neutral.

Violence against Women: A Social Stigma

Author: Sandeep Suresh

Violence against Women, this title needs no further introduction in the present Indian scenario where the citizens of this diverse nation have come forward together to fight a socially immoral crime legally. Like a siren, the recent row of rape and molestation cases has opened many eyes in this nation. Especially, the gang rape of the girl fictionally named Nirbhaya in Delhi in mid-December has opened streams of parallel protests and demands. For the past 2-3 weeks, almost all the major cities have witnessed some sort of protest condemning the fateful Delhi incident.

Violence against Women: A Social Stigma
Image Courtesy: naaree.com

The Union Government is not only facing the agony of common masses in the roads, but the chaos inside the Parliament caused by the opposition parties and parties within the UPA coalition has also put the Government under pressure. In such a situation, it is necessary to understand the crux of these protests. The prime demand by the protesters is the introduction of death penalty as the punishment for rapists. True, rape is not less atrocious a crime than murder. But is death penalty an answer for all the problems? Firstly, there has been a long standing call for abolishing death penalty as a deterrent punishment for any crime in the international arena.

On 20th November 2012, the General Assembly of the United Nations had introduced a resolution ((http://news.outlookindia.com/items.aspx?artid=781236))for abolishing death penalty to maintain civilised societies all over the world. Unfortunately, instead of abolishing death penalty, India abolished the resolution itself. Our nation is one among the only 58 nations that are still in favour of execution of convicts. India’s argument in voting against the resolution was that, as a sovereign nation, it had all the rights to set up its own kind of legal system and procedures. Can sovereignty be a bar for respecting human rights and other civil rights of a nation’s subjects? Sovereignty should be armour for the nations to protect the citizens from outside forces and not for upholding such inhumane measures.

In the context of the judiciary as well, the usage of death penalty is also suffering from major drawbacks. Judicial misinterpretations and the inconsistent application of the decision in Bachan Singh v State of Punjab (((1980) 2 SCC 684))in the subsequent cases has made the Judiciary a shameful constitutional body in implementing death penalty. Moreover, doesn’t an eye for an eye make the whole world blind? The reformative theory of punishment advocates this very saying. What is the difference between us and a criminal if we also demand and promote measures like castration or death penalty? The conscience and morality of the population of the world’s largest democracy will be brought under scrutiny.

If we think for a while, it becomes clear that protestors are going hard at the Government due to their agitation and agony. Such horrific incidents have tickled the tender conscience of the masses. We need to calm down ourselves and think logically. Yes, we need to fight against this crime. Can it happen only by demanding for change in laws? As the title reads, any kind of violence against women is not a legal issue per se. It is purely a social issue that needs to be solved involving the minds of human individuals. The law has a role in the latter part only after the crime has happened.

Of course, laws and punishments may act as a deterrent force for those with violent intentions. However, to a person who is not aware of the legal consequences of an act, which majority of the Indian population is, the law doesn’t prevent them from doing a crime. Therefore, with the old proverb which says ‘prevention is better than cure’ in mind, we should try practically to address and prevent these social crimes. It is not intended to mean that legal solutions are unnecessary. Yes, we do need special fast track courts to try such crimes and provide speedy trials by adopting strict measures.

Along with it is necessary to press for huge investments in technology for implementing various safety measures in major cities of India. With the current state of technological and scientific advancement, if the Government budget is structured appropriately, cities can be made safer for our women. Till date, I have not even heard a single line of argument supporting such practical steps. Instead of politicising this issue, let us broaden our vision and thought process to think and effectuate practical solutions for making India a civilised nation.