People wait outside the Supreme Court that confirmed death sentence for the four convicts in the December 16 gangrape case, in New Delhi.(PTI Photo)
People wait outside the Supreme Court that confirmed death sentence for the four convicts in the December 16 gangrape case, in New Delhi.(PTI Photo)

December 16 gangrape verdict: It’s time India rethinks death penalty

The ambiguity of the definition of “rarest of the rare” is a serious flaw. It is time that India joined the majority of nations that have abolished death penalty.
By Meenakshi Ganguly
UPDATED ON MAY 11, 2017 10:32 AM IST

Courts in India upheld convictions in two infamous rape cases this week.

During the terrible attacks on Muslims in Gujarat in 2002, a mob targeted Bilkis Bano and her family. Bilkis, who was pregnant at that time, was gang-raped. She survived, but witnessed her three-year-old daughter being slaughtered along with 14 others. On May 4, 2017, the Bombay high court upheld sentences of life imprisonment for 11 accused (one died during trial). The court also reversed the acquittal of seven others, including five policemen who were accused of negligence and tampering with evidence. The court rejected the prosecution’s plea to convert three life sentences to death, saying “though such crime is not justifiable and is shunned,” the sentence is not “completely inadequate”.

A day later, the Supreme Court upheld death sentences for four of the six accused convicted for the gangrape of a 23-year-old paramedic in Delhi on December 16, 2012. She died from her injuries 13 days later. One of the accused had allegedly committed suicide in prison, while another, 17 at that time, was prosecuted in juvenile courts. The Supreme Court said the convicted deserved the death penalty for reducing the victim “to an object for their gross sadistic pleasures”.

Indian law requires that the death penalty only be imposed in the “rarest of rare” cases. In both these cases, the prosecution had argued for capital punishment on the basis that the crimes met the “rarest of rare” threshold.

The death penalty should be abolished because it is an inherently irreversible, inhumane punishment. However, the ambiguousness in the application of “rarest of the rare” criteria is a serious concern, as is apparent in the two cases described above, where the convicted acted on the worst form of heinous intent.

While all sentences handed down by judges will be subjective to some degree, disparities can be magnified in capital cases. In November 2012, the Supreme Court had ruled that there is “little or no uniformity in the application” of the rarest of rare standard for capital punishment and suggested a “fresh look”. In August 2015, India’s Law Commission submitted a report calling for abolition of the death penalty for all but terrorism-related offences and “waging war” against the state, saying that it was arbitrarily imposed and disproportionately used against socially and economically marginalised people.

Bilkis Bano and the family of the December 16 gangrape victim received a measure of justice this week. After the verdict, Bilkis Bano said in a statement: “My rights, as a human being, as a citizen, woman, and mother were violated in the most brutal manner, but I have trusted in the democratic institutions of our country. Now, my family and I feel we can begin to lead our lives again, free of fear.”

During India’s Universal Periodic Review at the United Nations Human Rights Council this week, several UN member countries recommended that India revoke the death penalty. It is time that India join the majority of nations that have abolished this cruel punishment.

Meenakshi Ganguly is South Asia director at Human Rights Watch. The views expressed are personal.

The author tweets @mg2411

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