The case of rape and subsequent murder of a trainee doctor in Kolkata’s RG Kar Hospital is still in the news. The main accused Sanjay Roy has been arrested. There is a demand for hanging him. Meanwhile, West Bengal Chief Minister Mamata Banerjee has passed a new bill to award death penalty in rape cases. The bill has a provision for giving death penalty to the culprits of rape.
There is already a provision in the law for the death penalty for rape convicts. Every year, the convicts are sentenced to death in many rape cases. But in the last 20 years, only five convicts have been awarded death penalty in rape and murder cases.
Is death penalty the only option?
There is also opposition to giving death penalty to the culprits. The Supreme Court has also accepted in many decisions that death penalty should be given only in the ‘rarest of the rare’ cases. While giving the decision in Bachan Singh vs Punjab Government case in 1980, the Supreme Court had accepted that life imprisonment is the rule, while death penalty is the exception.
In 1983, in the case of Machhi Singh vs. Government of Punjab, the Supreme Court had laid down five circumstances under which the courts could award death penalty to the convict. These circumstances were the method of murder, the motive behind the murder, the antisocial or heinous nature of the crime, the horror of the crime and the personality of the victim. In this decision, the Supreme Court had also said that the courts will have to make it clear in their judgment why awarding life imprisonment to the convict was insufficient and there was no other option than awarding death penalty.
In May 2009, the Supreme Court had interpreted the term ‘rarest of the rare’ in the Santosh Kumar Satishbhushan Bariyar vs Maharashtra Government case. The Supreme Court had then said that no convict should be given the death penalty unless there is no option of life imprisonment. The Supreme Court had said that while pronouncing the death sentence, the courts should keep two things in mind. First, whether a case is ‘rarest of the rare’ or not and second, whether there is an option of life imprisonment or not.
Similarly, in a case in August 2019, a three-judge bench of the Supreme Court upheld the death sentence of the convict by a 2:1 majority. However, Justice Sanjeev Khanna disagreed with this and said that in previous decisions, the Supreme Court has made it clear that the death penalty should be given only when life imprisonment is not an option. Justice Khanna had said that the accused had confessed his crime before the magistrate without any pressure, so it would be right to sentence him to life imprisonment. The accused was sentenced to death for raping and murdering a minor and killing her minor brother.
Is it possible to execute a death sentence in 10 days?
Laws have been changed from time to time to prevent sexual crimes against women and children. An important change was made in the law after the Nirbhaya incident of 2012. After this, provision for death penalty was made in rape cases.
Now there is a provision in the new bill of Mamata government of West Bengal that the hearing of rape and murder cases will be completed as soon as possible. It is being said that rapists will be sentenced to death within 10 days, but there is no mention of this in the bill. Such cases will be heard in fast track courts.
Statistics show that most of the convicts who are hanged every year are rapists and murder convicts. The report of Project 39 of Delhi’s National Law University shows that in 2023, the Sessions Court had sentenced death penalty in 120 cases. Of these, 64 or 53% cases were related to rape and murder.
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However, if the death sentence is given by the Sessions Court, it is necessary to get it approved by the High Court. Under Section 22(2) of the Indian Civil Defence Code, if the Sessions Court awards death penalty, it is necessary to go to the High Court. The death sentence of the convict is decided only after the High Court approves it.
According to the report of Project 39, 80 cases related to death penalty were filed in the High Courts in 2023. In only one of these cases, the High Court upheld the death penalty. The death penalty of 36 convicts was reduced while 36 convicts were acquitted. The Karnataka High Court upheld the death penalty of murder convict Beluri Thipaiya.
At the same time, the Supreme Court completed the hearing on the cases of 11 prisoners sentenced to death. Out of these, the Supreme Court reduced the punishment of 3 convicts. 6 convicts were acquitted in 5 cases. Whereas, the Supreme Court again sent the case of 2 convicts to the High Court for consideration.
According to the report of Project 39, by December 2023, there were 561 prisoners in jails across the country who were sentenced to death. This number is the highest in 19 years. Earlier in 2004, the number of such prisoners was 563.
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How many rapists have been hanged so far?
If we look at the statistics of the last 20 years, only five convicts of rape and murder have been hanged. Dhananjay Chatterjee was hanged on 14 August 2004. He was sentenced to death in 1990 for raping and then murdering a 14-year-old girl.
After that, four Nirbhaya convicts were hanged on 20 March 2020. On 16 December 2012, a young woman was raped in a moving bus in Delhi. She later died. She was named Nirbhaya. There were 6 convicts in the Nirbhaya case, one of whom was a minor. The minor was released after serving a sentence of 3 years. One convict committed suicide. The remaining 4 convicts Mukesh Singh, Vinay Sharma, Akshay Thakur and Pawan Gupta tried all tricks to stop their hanging, but could not avoid it. In March 2020, all four were hanged in Tihar Jail.
Where does the matter get stuck even after getting the punishment?
Statistics show that in our country, death sentence is given to the culprits, but it is not implemented. It is generally believed that lower courts, taking decisions based on local sentiments, sentence the culprit to death in haste. But when the case goes to the High Court or Supreme Court, the decision is overturned.
In May 2022, in the Manoj Kumar vs Madhya Pradesh Government case, the Supreme Court had expressed concern over the death sentence awarded by the trial court. The Supreme Court had said that before awarding the death penalty, the trial court should thoroughly consider all the evidence related to the convict. Also, in the case of death penalty, the governments will have to provide all the information and evidence related to the convict to the trial court, which includes the age of the accused, family background, level of education, level of income and his psychological level.
In a similar case in April last year, the Supreme Court had also said that if the other party demands the death penalty, then it will have to provide all the information about the background of the accused to the trial court.
However, legally, even if the trial court awards death sentence, the High Court’s approval on it is still necessary.
If the High Court also upholds the death sentence, then the convict has the option of going to the Supreme Court. On receiving the death sentence from the Supreme Court, there is an option of a review petition and then a curative petition. After all legal options are exhausted, the convict also has the option of filing a mercy petition before the President.
If the President also rejects the mercy petition, then many times the convict can go to the Supreme Court again. For example, the mercy petition of Devinder Pal Singh Bhullar, convicted in the 1993 Delhi blast case, was rejected, but later the Supreme Court commuted his death sentence to life imprisonment on the ground that it took 8 years for his mercy petition to be rejected.
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When will death penalty be given in rape cases?
Section 65 of the Indian Penal Code (BNS) provides that if a person is found guilty of raping a girl under the age of 12, he can be sentenced to 20 years to life imprisonment. In this too, the punishment of life imprisonment will remain as long as the culprit is alive. There is also a provision for death penalty if found guilty in such cases. Apart from this, provision for fine has also been made.
If found guilty in cases of gang rape, the punishment is 20 years to life imprisonment and a fine. Under Section 70(2) of the BNS, if found guilty of gang rape of a minor, the punishment will be at least life imprisonment and can also be death sentence. There is also a provision for fine in such cases.
Under Section 66 of the BNS, if a woman dies in a rape case or goes into a coma, the culprit will be sentenced to a minimum of 20 years. This punishment can be extended to life imprisonment or even death penalty.
Apart from this, POCSO Act was implemented in 2012 to prevent sexual crimes against minors. Earlier, there was no death penalty in the law, but in 2019, it was amended and provision for death penalty was also made. Under this law, if a person is sentenced to life imprisonment, then he will have to spend his entire life in jail. This means that the accused cannot come out of jail alive.
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