Updated: Jun 19, 2020
Author: NANDINI SRIVASTAVA,
Manipal University, Jaipur
No one is unaware about the horrifying and heart breaking incident that happened on the night of 16th December 2012. Jyoti Singh (also called Nirbhaya), women of 23 years of age was brutally assaulted and gang- raped by six men on a moving bus and was left in a half – dead state along with her friend on a road where a man informed the police about them. The level of assault and rape was so heinous that only 5% of her intestine was left in the body and she was immediately taken to the Mt. Elizabeth Hospital in Singapore but she died on 29th December 2012 because of multiple organ failure. In her dying declaration she demanded for justice and wanted all the 6 men including the juvenile to be punished for the crime. This incident created ruckus in the country. Public were so agonized by this incident that many candle march and silent protest were organised by them where they demanded justice for the victim and this case also grabbed a lot of media attention. The court after final evaluation of all the evidences awarded capital punishment to the five men Ram Singh, Mukesh, Akshay, Pawan and Vinay in year 2013 and sentenced the juvenile involved in the crime imprisonment of 3 years in the reform facility. The judgment for the capital punishment was given in the year 2013 but the execution of 4 men apart from Ram Singh who committed suicide in the Tihar jail on 11th March 2013 was only done few months back that is on 20th perpetrators have finally been given the punishment they deserve but there was an air of criticism as well. People complained as to why it took judiciary 7 years to finally punish the convicts. The notion of “Justice Delayed is Justice Denied” was used in regard to this matter.
Though death penalty is allowed in India yet it can only be given as a punishment in “rarest of the rare cases” as quoted by Justice Dipak Mishra. Death penalty can be provided when one is found guilty under Section 121(Guilty for waging war against the Government of India), S 132 (Abetment of Mutiny actually committed), S 194 (Perjury resulting in the conviction and death of an innocent person), S 195 A (Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person), S 302 (Murder), S 305 (Abetment of a suicide by minor, insane or intoxicated person), S 307(2) (Attempted murder by a serving life convict), S 376 A( Rape and Injury which causes death or leaves the women in a persistent vegetative state), S 376 E (Certain repeat offenders in the context of rape) and Section 396 (Dacoity with murder) of the Indian Penal Code, 1860.
Other laws other than Indian Penal Code, 1860 under which capital punishment can be given are Protection of Children from Sexual Offences Act (Amended), 2012, Unlawful Activities Prevention Act, 1967, Narcotic Drugs and Psychotropic Substance Act, 1985, Maharashtra Control of Organized Crime Act, 1999 and Schedule Caste and Schedule Tribe Atrocities Act, 1989 etc.
Capital form of punishment is one of the most severe form of punishment which on one hand is criticised by the human rights activists and the organisation on the ground that no individual whatsoever is the situation deserves to be hanged to death and “an eye for an eye” can never be a way to combat the issue of increasing crime rate but on the other hand it is appreciated by people who believe that in some cases justice can only be served when the guilty is hanged to death. The debate on capital punishment has had existence in India from very long. Its constitutionality has been challenged many times in the court. One such case is Jagmohan Singh v. State of Uttar Pradesh where the appellant stated that this form of punishment is a violation of Article 14, 19 and 21 as freedom to live is a non – expressive right embedded in the fundamental rights. The contention put forward in the case was rejected by the honourable Supreme Court which communicated that the right of the person can be denied if it is done on reasonable grounds and in the favour of interest of the society.
One more issue regarding this that has received organisation, public and media attention is delay in its implementation. Over the past few years judiciary has come across many cases pertaining to the matter of delayed execution and it has given many landmark judgements on the same. One such case is Sher Singh v. State of Punjab where the court pronounced that delay in execution is inhumane and degrading in nature and if such delay has taken place the court should decide whether it is still appropriate to give death penalty or the punishment should be commuted to life imprisonment. This case also introduced the two year rule that is if there is delay of more than 2 years in executing death penalty then the punishment should directly be substituted with life imprisonment. This rule was in practice for a considerable period of time but was changed by the judgement of the case Triveniben v. State of Gujarat. In the case it was stated that no fixed time period can be prescribed for this because it usually takes at least five to six years between imposition of the capital punishment and the execution of the same. It is also important to take into account other factors before modifying the capital punishment into life imprisonment.
REASONS FOR DELAY IN EXECUTION
Benjamin Franklin said “It is better 100 guilty person should escape than that one innocent person should suffer”, therefore India has adopted strict legal framework for this to ensure that no innocent gets mistakenly punished for a crime that he did not commit.
Section 366(1) of the Code of Criminal Procedure, 1973 states that if the Session Court passes an order for death sentence then same shall be executed only when the High Court confirms with the proceeding. Section 367 (1) and (3) of the same code provides that if the High Court believes that further enquiry is needed based on any additional evidence which might have effect on the guilty or the innocence of the person concerned then the same shall be reconsidered either by the High Court or the Session Court. If the Session Court takes the matter for reconsideration then it shall provide the High Court with the relevant details of the same. The code also specifies that in cases where death penalty is being awarded the awarding judge should mention special reason for the same in the judgement.
Article 134 of the Indian Constitution, 1949 permits appeal in the Supreme Court if the High Court on appeal has reversed the judgement and awarded death penalty to the offender or if High Court in its discretion taken before itself any trial from any subordinate court and given the convict capital punishment. Supreme Court through Article 136 has been given the authority in its discretion to grant special leave appeal to any order, decree, judgement, sentence or determination. Once all the rights to appeal in the court ends, he is entitled to file mercy petition under Article 72. Article 72 prescribes to the President the power to “grant pardons, reprieves, respites, remission of punishment or to suspend, remit or commute the sentence” in “all cases where sentence is of death sentence”. The decision of the President on the mercy petition is subject to judicial review only if the court finds it to be arbitrary and unreasonable.
Once mercy petition and petition of its review has been rejected the convicts can file for the curative petition. In curative petition the convict can get relief from the final judgement of the Supreme Court and the dismissal of mercy petition by the President. This right is available to the people to ensure that justice is administered and power is not misused. This concept is supported by Article 137 of the Constitution which states that in those matters related to which rules and laws are made under Article 145, the Supreme Court has the power to review any judgement passed by it. The petition for this can only be filed within 30 days from which judgement has been passed and on the ground that the petitioner’s right to natural justice (person was not heard before passing of the judgement) has been violated.
Sometimes like the Nirbhaya case there can be more than one convicts each of the convict has the right to file individual mercy and curative petition because each of them has the right under Article 21 of the Constitution “No person shall be denied of his life or personal liberty except according to the procedure established by law” and thus there petition cannot be clubbed. The court has no power on this; the convicts can either file it together or can file it individually.
If the convicts want to exercise all these rights then the execution of the punishment can only be done when all the rights have been exhausted.
What good is justice hurried but never right. It is important that the victims and their family are given justice as soon as possible because dragging the case for a long period of time creates emotional, physical, monetary stress and obstructs them from attempting to live normal life but it is also important that punishment is given to right person and in the right quantum that is it should neither be less nor much of what he deserves for the crime committed. Therefore it is better to be late and right than to be quick and wrong.
1. Jagmohan Singh v. State of Uttar Pradesh AIR 1973 SC 947
2. Sher Singh v. State of Punjab AIR 1983 SC 465
3. Triveniben v. State of Gujarat AIR 1989 SC 142
4. “How 16 December gang – rape convicts are using the law to avoid execution” by Debayan Roy (The Print, 15 January 2020)
5. “What is Curative Petition?” by Insights Editor (InsightsIAS, 29 February 2020)
6. “Mercy Petition” by drishti (drishti, 1 November 2019)