The Capital Punishment For Rape - Is It Really Helping
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
THE CAPITAL PUNISHMENT FOR RAPE: IS IT REALLY
HELPING?
Deepika Soni, Advocate, Rajasthan High Court, Jaipur
ABSTRACT:
The Indian laws have sufficient punishment for rape including death penalty. With revolution law has changed too. If law and order are doing so much to stopping the rape then why it isn’t stopping. The procedure of filing FIR and complaint, while investigating the offense there are so many loopholes in the process. We can see misusing of the powers, carelessness, overseeing the facts by police and long procedure of investigation and trial make the chances of conviction very less. Not all the rapists get punished and not all victims get justice. NHRC and NCRB statistics show, how we are failing to serve justice. The second most populated country has most number of cases of rape. In this paper we will see how the capital punishment is not helping in cases of rape. The news of rape is spreading like sea fungus.
Newspapers, news channels, social media, internet, restaurant, tea stalls and every platform are filled with these topics. Every month you will see a news, which crosses new level of cruelty and brutality and people start questioning the government and judiciary that what are they doing. We have to admit the fact that people believe more in judiciary than government. Every person whether he/she supports that government or not will initially hope that government will protect him/her or ensure security which is duty of government but when crime happens than last hope he/she expect from is judiciary But after so much efforts of government and strict actions of judiciary, rape news is increasing day by day. This paper will effectively talk about stopping rapes.
Years of Efforts of Many women welfares associations, NGO’s, many individual’s endeavors, protests and thousands of deaths of victims are not sufficient for stopping this heinous crime. Society is progressing at full pelt in technology, in science, in economy. Humans are touching the new skies every day. Other planets are also approachable now but women’s condition is tantamount.
Usually family do not allow their daughters to go out at nights and work outside late at night because they know that it’s not safe outside and when we talk about safety, parents and guardians are not wrong and this is not how a progressive country should be. Stopping daughters and women from going out is not going to help the situation, teaching women to behave appropriately, don’t laugh too much in public, don’t wear tight clothes, don’t wear short dresses, don’t make male friends and worse comes to worst getting them married in early age without even asking them whether they want to get married or not is not a solution. Women in families get raped by their father, brothers, uncles, cousins, in –laws even by husband. It is worst to see that how politicians make situations worst by give such statements that encourages rage in people.
Therefore as we can see law cannot help, protests cannot help, government cannot help, and then what can we do. What kind of potent step can we take for stopping this atrocious act? It is not a new fact for anyone that how the Government had to pass the law in the case of “NIRBHAYA” and how the Government took rigid steps for punishing the convicts and by giving this kind of harsh punishments, it is a clear intention of lawmakers and the Government to stop the crimes but this is actually not a case. Crimes are rising like crops. India and other countries are not about giving punishments they are more about reformation and in form of school of liberty but punishments are not helping in today’s case. The Reformative Theory The Indian law’s attitude towards punishing the convict is always reformative and it should not be very rigid and always in favor of avoid the capital punishment.
The reformative theories have agendas to reform the offender and reintegrate him into the society. According to this theory, most crimes are committed because of a conflict between the criminal’s character and intent. It is mentioned that one might commit an offence because the temptation of the aim is larger or the constraint imposed by character is comparatively weak. According to reformative philosophy, punishment is restorative than deterring. The object of punishment should be reformative because a person may have committed that crime in certain exceptional cases but he doesn’t stop to be a human, so the effort to reform the offender is in favor of humanity. He can be a good human being by good guidance and
can be transformed into a well behavioral person. The reformative theory is also known as rehabilitative sentencing. The purpose of punishment is to “reform the offender as a person, so that he may become a normal lawabiding member of the community once again. Here the emphasis is placed not on the crime itself, the harm caused or the deterrence effect which punishment may have, but on the person and the personality of the offender. ” When a person commits a crime there are many factor which make him do those acts which he do not mean to do, like - psychological factor, personality defects, deprivations of social things, by bad company etc. there might be more aspects of it. A criminal act of a person does not define a person how actually he is.
That is the reason reformative theories are there to correct the person and bring out that side of him that how a person can be so good for society if he gets proper treatment from world. So here we can say “punishment should be rare, but reformation should always be there”. There are many laws for reformative approach for convict to include him in main stream of society so he doesn’t repeat the offence. Laws are always liberal to first offenders. The probation of offenders act, 1958 is about how a reformative approach can be done to a person for more secured society. The act speaks about to give him a probation or admonition or by ordering punitive damages or by supervision of probation officers etc. The Criminal Procedure Code, 1973(section 360) or Bharatiya Nagarik Suraksha Sanhita, 2023(section 401) court can order to release on probation of good conduct or after admonition.
The juvenile justice (care and protection of children) act, 2015 empowers to care, protection, treatment, development, rehabilitate, reintegration of delinquent children. So as there are law schools which gives reformative theories but these theories did not work out that well. There is negative side of every aspect. Critics have shown many adverse effect of this school, such as: - RECIDIVISM rate can be higher which is certainly happening. Criminal may reoffend because there is no strict actions against him which he may afraid of.
RISK TO SOCIETY will be increased with this idea and there will be a lot of safety issues. - Reformative theories may not DETERRENT a criminal minded people and it cannot effectively prevent future crime and because of that there will be no crime free society - As increasing offence THE COST on counseling, rehabilitation, community based programs will go so high that it will cost huge sum to tax payers which may trouble our economic system. - The offenders cannot be trusted, there will be NO ACCOUNTABILITY it will be close threat to safety for our society because we do not know what’s in a person’s mind so this will create a disruptive situation. The critics are actually making absolute fair point here the crime should be stopped than reforming criminals. Society’s safety is more important rather than taking questionable reformation of criminals.
It should be balanced, like if courts are dealing with heinous crime or habitual offenders, there should not be reformative approach. Specially the case where a person’s life has been taken or make that person unable to live or deform the person to live a normal human life where reformation or even sentence for life isn’t suffice for the crime he has committed. The heinous act of rape or a person’s condition which is so degrading for human’s life should not hold any places for reformative treatments. A number of rising cases, even life imprisonment is not sufficient or even death penalties are not enough for stopping the devilish act. So where conditions are this poor, we cannot even think of reformative punishments. In those circumstances capital punishments becomes necessary.
The government already has introduced death sentence for rape in irreversible extreme circumstances, courts are bind to follow procedure and need irrefutable proofs for giving capital punishment. Capital punishment should be given into rarest of rare case. Supreme Court’s judgments have been given that says where capital punishment should be given. The doctrine of rarest of rare case has been given by the Supreme Court in 1980 case Bachan Singh v. State of Punjab. THE DOCTRINE OF RAREST TO RARE is a legal principal which states that the death
penalty should be imposed in the exceptional cases. The circumstances should be extreme and imposing death penalty should be given after viewing all the facets of the case like, brutality of crime, motive of criminal, the impact on society and the potential of criminal for rehabilitation and should look reasonable. Although India is member of the International Covenant on Civil and Political Rights and the abolitionists emphasize that the doctrine is not reasonable and against the person’s right to live and full of cruelty, still it’s not totally reasonable to avoid death sentences when a criminals are causing this hazards to society and the situation is distressing. The famous economist and philosopher Adam smith once said that “Mercy to the guilty is cruelty to the innocent”.
Abolishing death sentences in India, remitting it, commuting it cannot be a solution but here we are raising the question that after giving such punishments, is rape stopping? The answer would be “NO”. It can clearly be observed. Although UN advocates about abolishing the death sentence but our country’s increasing statistics about rape cases abolishing capital punishment would not be a great gesture, although it’s not helping, but after abolishing the capital punishments, the number of rape cases would increase thrice. Every protest, every person, every victim is questioning from many years to change the mode of punishments. It should be more severe and eye opening example. Entire nation have been tired of requesting for changing the mode of punishments.
Punishments in other countries and statistics: On the other hand other countries that have more severe punishment for rape have less increasing ratio than India. The type of punishment, way of executing it, is different than India. Let’s dive a little deeper into this, for example: Saudi Arabia - Saudi Arabia executes the rapists with flogging, imprisonment and with heavy fine. The execution can be done publicly. Their sexual offences rates are 0. 3 on per 100,000 populations of their country which is still less than our country. There is no written law for the offences and the country governed by the Shariya law so it is totally up to the concerned government. Saudi Arabia is one of the countries where media is ban and not all news get public so they punish the accused accordingly. We cannot avoid the fact that they
punish the victim too if victim goes public about the offence that has happened with her. North Korea - The country punishes the rapist with death sentence. They execute it by firing, decapitation or by hanging. The authorities say that public execution is rare and it only used to deter the crime however the country is more about secrecy and the news which comes out most of depends on heavily anonymous sources or by paid US services that operates in East Asia. On questions by UN the concerned government said that there is only
9 people were convicted in 2008, seven in 2011 and five in 2015. This ratio cannot be trusted
because the world media is banned in the country. Only the people who left the country or people who are ex officials of government have shared the actual situation about the country that real situation are not that good when it come to women so far as the North Korean do not public the news and actual crimes and their execution, it is hard to believe what they tell to the UN but the rates of crime is still less than India the sources are confident about this fact. Afghanistan - In Afghanistan rape convicts punish with death sentence, life imprisonment and long-term imprisonment. The punishment can be carried out secretly or publicly. It can be executed by hanged, shot to death, stoning, flogging and amputation too. It has been researched that the crime against women has been increased by 35% and Taliban playing the big role in increasing the sexual crime rates there.
The women who raped if report crimes there in Afghanistan they have been charged with adultery and get punished. If we see the ratio before attacks of Taliban it was lesser than the current situation. China - china punishes the rape convicts with life imprisonment and death. It executes the convicts through lethal injection, firing squad or organ removal. (monash. edu) china always keeps their news and execution secret so exact number of executions and rapes cannot be assured but with a huge population, it can be believed that China is the world's largest executioner, carrying out thousands of executions annually. In 2022, the National Bureau of Statistics of China recorded 39,693 rape cases which is not a hundred percent right estimate. Statistics in India - with effective and astonishing facts in India, it has been recorded in
1148 and above age 60 were 80. Cases reported in POCSO Act were 61067 where victims
were only girl child. 30% of total number of cases where women have been killed and died. Half of total number of cases are disposed by police, Some of them are pending, some cases are there where charge sheet still isn’t filed. Some of them are abated on investigation stage, some of them are quashed on investigation stage and some of them are not even investigated.
39000 rape cases were filed in 2016, which is Highest in history, and with very less ratio of
conviction and executions. The fact would not affect you that UP has highest number of rape cases in 2023 and in every year UP is on top for highest reporting of rape cases. Delhi, Maharashtra, Bihar and Rajasthan are in top in country for filing maximum rape cases. this statistics are from states and UTs. Indian cultures, laws, the concept of executing the sentences are liberal and it has always been liberal, but why it should always be liberal? Why the ideology of peace and liberality is in need with changing scenario. Article 13 of constitution’s basic is on doctrines that on the revulsion of country, time and situation the laws can be changed and it has been changed. After the soul-shattering act in 2012 of NIRBHAYA, government had passed the criminal law (amendment) act, 2013 (which is also called NIRBHAYA act) after the upheaval situation in country.
the amendment was much needed for the current situation and it changed and added some provisions in Indian penal code, 1860 and criminal law (amendment) act, 2016 also add some provisions for minor girls in Indian penal code,1872 such as: Section 376(IPC, 1860) and section 64(BNS, 2023) - punishment for rape was 7 year and fine before the amendment but after the amendment of 2013, punishment for rape is 10 years and shall be extended to life imprisonment and in section 376(2) and 64(2), in specific circumstances it will be not less than 10 years but shall extend to life imprisonment which shall mean imprisonment for the remainder of person’s natural life and file.
Section 376A (IPC, 1860) and section 66(BNS, 2023) – this section is added in the amendment which states that whoever commits offence punishable under section376(1) and section 376(2) and while committing the offence inflicts her such injury which causes her death or causes her to be in persistent vegetative state, shall be punished with imprisonment which shall not be less than 20years but may be extended to imprisonment for life or remainder of that person’s natural life or with death. Section 376AA (IPC, 1860) and section 65(BNS, 2023) - the section says whoever commits
rape to a women up to twelve year or under 16 years (65(1) BNS, 2023) of age shall be punished with rigorous imprisonment which shall not be shall than twenty year but may extent to imprisonment for life which shall mean imprisonment for person’s natural life and fine. Section 376 AB (IPC, 1860) and section 65(BNS, 2023) –if a woman under age of 12 gets raped the person who raped her shall be punished with rigorous imprisonment which shall not be less than 20 years but which may extent to imprisonment for life or which shall mean remainder of person’s natural life and fine or with death. Section 376B (IPC, 1860) and section 67(BNS, 2023)- if a husband has sexual intercourse without his wife’s consent whether under a decree of separation or otherwise shall be punishment which shall not be less than two year which may extent to seven years and fine.
Section 376C (IPC, 1860) and section 68(BNS, 2023) – a person commits sexual intercourse being in a authority and abuses such position and fiduciary relationship to induce or seduce any women in her custody or under his charge or present in the premises to have sexual intercourse with him shall be punished with imprisonment which shall not be less than five years but may be extended to ten years and fine. Section 376D (IPC, 1860) and section 70(1)(BNS, 2023) – where a woman gets raped by one or more person or by a group or acting furtherance of a common intention each of those shall be punished with rigorous imprisonment which shall not be less than 20 years but which may extent to imprisonment for life which shall mean to remainder of person’s natural life and fine.
Section 376DA,DB (IPC, 1860) and section 70(2)(BNS,2023) - if a woman who has been gang raped is under age of 18 years, the punishment shall be rigorous and not less than of 20 years of imprisonment which may extent to imprisonment for life but shall mean to remainder of person’s natural life and fine or death. Section 376E (IPC, 1860) and section 71(BNS, 2023) – whoever has been previously convicted of an offence which has mentioned previously and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean to remainder of person’s natural life or with death.
The punishments which have been given in above sections will be rigorous and the fine will be that just to meet the medical expenses and rehabilitation of the victim and shall be paid to the victim. We see the legislation has done a lot. Every possible endeavors they have made is remarkable but it is not making a good reformative effects as intention of law makers But people are not afraid of punishments because the loophole in procedure of try the accuse, the participation of police and their corrupts way with dealing with accuse, intention of legislation are still same but effects of law is not, rapes are increasing with soul stirring acts by criminals.
The intention of legislation for punishing with strict laws is clear that crime should not be repeated and it should be stopped with causing deterrent effect but unfortunately the strict form of punishments are not working and courts are overloading with these kind of offenses. Let’s know a little about indian investigation system and how it is effecting the trials and raise suspicion on accuse which leads to acquittal – INVESTIGATION is very important first stage to find whether offence has been committed or not, police investigate the offence and try to find that how, where, in what circumstances, to whom offence has been committed and who has committed it. First stage of investigation is where police file the FIR. Let’s see this keenly: when the offence has been reported the first thing police will ask the place and the time when offence has been committed.
It is very crucial to report the crime as soon as it has committed, filing late FIR will raise the question and police will ask relatable questions about filing late FIR. Filing late FIR coast a lot to a victim. There is higher chance that police would not find significant proof in place of crime which is very important in building up the strong case. Taking late statements of witnesses by police affects the matter and there is good chances that accuse will threat and bribe to witnesses to shut their mouth and temper with evidences. Basically the accuse will have so much time to removing of objects from the places which can flash the crime, tempering with evidences, mislead witnesses etc. In most cases police don’t file FIR because many of the victim don’t have solid proof then the victim go for complaint to S. P. or will register a complaint direct to magistrate which takes time.
As a result it weakens the point of investigation and makes the case weak. Recovery of clothes, inspection of place, the timing of recovery of clothes, medical of victim and time of medical, spots of sperms and spots of vaginal discharge, the hair, nail, blood of
victim or accuse, the findings of FSL reports, relation between accuse and victims, consent etc. these are main aspects of investigation. If anything in investigation goes wrong the chances are high that accuse will be discharged or acquit. In most of cases carelessness of police plays very big role in depriving victim to get justice. The final report carries all the information of investigation and the lawyers of opponent understand it very well where police’s carelessness would create doubts on accuse which would benefit the accuse in concluding the case. Police’s loose and irresponsible behaviour is biggest reason that huge number of accuse get discharged or acquitted. The motto of investigation is to find the truth but if we truly see in the courts and the police station, it is a total mess and full of doubts and proofs are mostly distorted.
This is how the administration and judicial system is working. No doubt judiciary has done a lot and many accuse get sentenced too but it is very short number as compare to cases which have filed. The ratio is disappointing and unbalanced. This is the big reason the investigation and procedure to try the offence should fair and just and chances of corruption should be null. We have to take that kind of harsh punishments even for police and people working for it. If the country’s situations are this worse and even getting worse than before, it is the right time that we should go further and cross the border line of liberty and make right effect of punishment, the state has responsibility to protect every citizen and it should take more effective step to stop the crime. In reformatory way, we don’t know how many more victims we have to loose and nobody is ready for that.
It is obvious that punishing convict with capital punishment would not bring back life of a victim but for stopping the crime the criminals should have the terror of punishment. So many surveys have done on social media and a question about rape has been asked to people and the common answers were that “amputation of penis and beheading with public execution”. People have tired and terrified with these infuriating news. The reaction, frustration, rage clearly can be seen now. The failure of justice and administration in maximum cases has made people hopeless. It is time now to make our attitude towards rapists like other countries have so the people can live in peace and women of every age can be free in every possible way.