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HindustanTimes Thu,10 Jul 2014

Death for Delhi gang-rape convicts but legal dilemma remains

Satya Prakash, Hindustan Times  New Delhi, September 14, 2013
First Published: 02:14 IST(14/9/2013) | Last Updated: 15:15 IST(14/9/2013)

A special court's verdict in the 16/12 gang rape and murder case has been welcomed, for, it awards the death penalty to four convicts held guilty of the barbaric crime.

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Many think capital punishment would act as a deterrent and other criminals would think hundred times before committing such acts. This widely held perception, however, may not be entirely correct.

Crime and punishment - both have existed since time immemorial as punishment is the most natural response to any crime. Be it an individual, a society or a State - they all have a natural tendency to react in their own way to a criminal act. Letting off criminals can lead to vigilante justice.

But punishment has to be proportionate to the degree of crime and mitigating circumstances have to be taken into account while deciding the quantum of punishment. Also, different societies react to crimes in different ways. Like crime, punishment too has witnessed progression. Primitive societies used to give retributive punishment. Then came deterrent, reformist and restorative approaches to punishment.

Law provides a system for adjudicating disputes. Justice is all about striking the right balance between competing, and often conflicting, rights.

In any crime there are three parties - the offender, the victim and the State, which represents society and is duty-bound to prosecute the criminal.

Many believe, a mix of various approaches to punishment can achieve better results if properly used keeping in mind the nature of crime and the mitigating factors can help in striking the right balance

Does death penalty serve this purpose?

In India, capital crimes are murder, robbery with murder, abetting the suicide of a child or insane person, waging war against government and abetting mutiny by a member of the armed forces. Death penalty is also prescribed under some anti-terror laws.

Section 354(3) of the Criminal Procedure Code requires a judge to give "special reasons" for awarding death sentences. In the Bachan Singh case (1980), the SC propounded the "rarest of rare" doctrine and since then, life sentence is the rule and death sentence an exception.

In fact, a scrutiny of SC verdicts indicates that the judiciary is becoming averse to death penalty. The SC refused to give death penalty in the Graham Staines, Jessica Lall and Priyadarshini Mattoo murder cases, holding these did not fall within the category of "rarest of rare."

There is growing demand for India joining the comity of nations that have abolished death penalty.

Notwithstanding India's December 2007 and November 2012 votes against a UN resolutions calling for a moratorium on the death penalty, in effect, there had been a moratorium on the death penalty in the country. There was just one execution of Dhananjoy Chatterjee between 1995 and the execution of 26/11 terrorist Ajmal Kasab in November 2012. This was followed by hanging of Afzal Guru in February 2013.

Most death penalties are commuted to life imprisonments and there appears to be a consensus that only terror convicts should get death penalty. This conclusion is further strengthened by rejection of mercy pleas of other terror convicts.


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