Every time there is a crime that gets the public mood to up their ante, the shout ends at “Capital punishment ” . The mood and the call right now is on a near fever pitch on the heels of a fast track court convicting all four accused in the Delhi gang rape case. With the persecution lawyers seeking the death sentence for the four and defense lawyers naturally aiming at a life imprisonment term, the quantum of punishment now set for sentencing on Friday will be waited and watched with bated breath by the entire country. Legal processes in India are none too easy and what is announced on Friday, can still be appealed by both parties in a higher court going on till the Supreme Court gives its verdict. Technically a death sentence handed out by the Supreme Court can be appealed again and if it remains the same, the President of India has the power to give a pardon. But in the Delhi case, if one is to look at the hypothetical possibility of the Supreme Court sticks to a death sentence and a clemency plea is tendered to the President, the tide of public scrutiny and the details that are emerging about the brutal nature of rape case is unlikely to lead to a Presidentail pardon. The death sentence has been in existence from ancient times in India and other countries and was in practice in the country under the British rule as well and was retained after India attained independence in 1947.
A 1983 ruling of the Supreme Court of India said that the death penalty be imposed only in “the rarest of rare cases.” In India, crimes punishable by the death sentence include murder, abetting the suicide of a minor or insane person, honour killings, gang robbery with murder, waging war against the nation, and abetting mutiny by a member of the armed forces. The public rage following the Delhi rape case in fact led to an ordinance which calls for the death penalty in cases of rape that leads to death or leaves the victim in a ‘persistent vegetative’ condition. But many have questioned this move since judges would be more prone to give such an extreme sentence, thereby making the legal process even lengthier since a sentence of the penalty is not always followed by execution due to the possibility of commutation to life imprisonment. Also, much of what happens in court again depends on the nature of police investigation and the statements given by witnesses etc. In the case of Aruna Shanbaug (1973), then a junior who was brutally assaulted and sodomized by Sohanlal Bhartha Walmiki, a ward boy of the same hospital the extent of sexual assault was not disclosed to the police by the doctors attending on Aruna since they thought the disclosure would lead to social stigma. As it turned out, the extent and nature of Aruna’s injuries were such that she is still in a vegetative state while Sohanlal was only tried for robbery and assault.
The Narcotic Drugs and Psychotropic Substances (NDPS) Act passed in 1989 applied a mandatory death penalty for a second offence of “large scale narcotics trafficking”. Later on 16 June 2011, the Bombay High Court ruled that Section 31A of the NDPS Act, which imposed the mandatory sentence violated Article 21 that enshrines the Fundamental Right to Life of the Constitution and that a second conviction need not be a death penalty, thereby giving judges the discretion to decide and take a call on awarding capital punishment. The advent of terrorism in the country has also seen the imposition of new anti terrorism legislation under which the death penalty has been given to people convicted of terrorist activities. With the country still not doing away with capital punishment, it is worth noting that the Supreme Court also recommends for death sentences to be awarded to police officials who commit police brutality in the form of extra judicial encounter killings. many countries that have done away with capital punishment have done so by arguing that it is an inhumane sentence and violates the very fundamental and basic right human right: that of the right to life. Those who oppose doing away with capital punishment take the stand that those who commit violent crimes must get the most severe punishment so that it serves as a reminder to others. Many others argue that keeping criminals alive and feeding on public money after they have committed crimes is not fair and that they should be handed the death sentence. Yet, there is no strong evidence the world over that details the threat of death as punishment, working as a deterrent to crimes.