Jayakrishna Sahu
The enactment of a stringent rape law in 2012-13, following the Nirbhaya case, was expected to act as a strong deterrent to such barbaric crimes. But the reality is disheartening; the rate of such crimes is on a frantic rise as usual.
Recently, three persons were convicted to life in prison in the Kathua rape-and-murder case. The nation was shocked as it was expecting the death sentence. At a time when it is a fashion with criminals to brutalise, rape and murder innocent children, such lenience is unacceptable and encourages prospective criminals.
Such heinous crimes have become everyday affairs today. In June alone, an 11-year-old girl in Hamirpur, UP; an 8-year-old girl in Bhopal; a 5-year-old girl in Ujjain; a 4-year-old girl in Jabalpur, a 3-year-old girl in Aligarh and a 9-month-old baby in Hanmankonda, Telangana, were all raped and murdered by monsters of men.
So, why don’t stringent laws intimidate criminals? Has the present system of punishment failed as a deterrent? Unlike western countries, India is yet to abolish the death sentence. In 2007 and 2012, India voted against an UNGA resolution calling for a moratorium on death sentence. The Law Commission of India had in 2015 recommended the abolition of capital punishment in the country, but it was not accepted by the government.
But in practice, the judiciary has virtually abolished the death sentence. In the past 20 years, only four convicts were hanged, although 2,761 convicts were awarded death in the period. Every year an average of 30,000 murders and 40,000 rape cases are being reported throughout the country. The conviction rate in major crimes in India is abysmally low. While in murder cases it is about 30 per cent, in rape case it is about 25 per cent. In states such as Odisha, Gujarat, Karnataka and Andhra Pradesh conviction in rape cases is an alarming 10 per cent. Justice is also very slow. About 65 per cent of rape and murder cases pending before trial courts are 3-10 years old.
Every time a woman or girl child is brutalised, raped and murdered, the entire nation shouts in chorus: “Hang the rapist”. But our justice system awards death in “rarest of rare” cases, and the criteria for capital punishment are very strict and tough. Death sentence for any crime, however heinous it may be, has always been an alternative to life in prison. Only murder (Section 303) invited the mandatory death sentence in the original Indian Penal Code (IPC). But this Section was declared unconstitutional and void by the Supreme Court in 1983, through the landmark Bachhan Singh Vs State of Punjab (1980) case.
In the past 20 years, only four convicts were hanged, although 2,761 convicts were awarded death in the period. Every year an average of 30,000 murders and 40,000 rape cases are being reported throughout the country
A Constitution Bench of the Supreme Court made it clear that capital punishment could be awarded only in rarest of rare cases. Explaining “rarest of rare case”, the Supreme Court held that emphasis was on atrocity and brutality with which the crime was perpetrated, the enormity of the crime warranting public abhorrence and the court’s response to the society’s cry for justice against the criminal. A criminal should be hanged only when the Court is sure that it has no alternative for protection of the state and the society.
Under such circumstances, it is futile to expect that every rapist and murderer will be sent to the gallows. What is the alternative then? Section 53 of the IPC provides for five types of punishments – death sentence, life-imprisonment, imprisonment (simple and rigorous) for several time spans (one month to 14 years), forfeiture of property, and fine. Though the IPC does not define life-imprisonment, the Supreme Court has made it repeatedly clear that it means “jail-term for entire life of the convict”.
Section 55 of the IPC and Section 433 of Criminal Procedure Code (CrPC), however, provide that the appropriate Government (Central or State) can commute a person’s sentence to imprisonment for 14 years or less. Section 433-A of the CrPC clarifies that if a person’s death-sentence is commuted to life in prison, it can only be reduced to a minimum of 14 years in prison. Only if a prisoner is found to have reformed, in accordance with provisions of the Model Prison Manual, can s/he be released prematurely.
Section 57 of the IPC also provides that “in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as imprisonment for 20 years”. Though a prisoner can’t claim premature-release as a right, it is often found that a large number of prisoners are being released prematurely. Such ambiguities create an impression among criminals that life-imprisonment is for 14 or 20 years; and that is not totally wrong.
As a civilised democracy, we can’t imitate autocracies such as Saudi Arabia, Iran or North Korea where convicts are publicly hanged or shot, or their organs amputated. As the civilised world is working to be rid of capital punishment, and the judiciary is reluctant to resort to the death sentence, it is better we make optimum use of the imprisonment system.
Our Courts should come out of their habit of becoming magnanimous to criminals convicted of multiple offences, by allowing them to serve total imprisonment “concurrently”. That is, if a person has committed four murders, then he won’t be punished for four life-terms, but only one.
But the civilised world handles imprisonment differently. In 2004 an Israeli court sentenced terrorist Abdullah Barghouti to solitary confinement of 67 life-terms for taking 67 Israeli lives. A US court similarly awarded 161 life sentences to terrorist Terry Nicholas in 1995. An Australian court in 1996 sentenced a man, Martin Bryant, to 31 life terms. In 1994 a US court awarded 30,000 years jail for raping six times a 3-year-old girl — 5,000 years for each crime. Are they not really scary? Why should we not imitate them?
The writer is an advocate based in Bolangir.