Why No Death Penalty For Gang Rape In India?

“Brother, please save me, I don’t want to die. I want to live. Those who have done this to me, I want to see them getting a death sentence.”

These were the most emotional last words of Unnao gang rape victim who was brutally gang raped in March and when police allowed those gang rapists to be released on bail then they decided to burn her while she was on her way to attend the court hearing pertaining to this gang rape case as they were hundred percent convinced that the judiciary of India does not hang gang rapists and it is only once in 15 years that a poor Dhananjoy Chatterjee who could not afford fees to hire lawyers and whose petition was drafted by Tihar jail prisoners is hanged and so the chances of very easily escaping from strict punishment are quite bright! Every Indian will get moved to read what this Unnao rape victim said before dying! What was her fault? That she was a women?

Why are rapists released on bail for some time as we saw in case of Unnao gang rape case? Why no security is provided to the victim who was raped? Why the life and safety of victim is not cared for by police as we saw most unfortunately in Unnao which resulted in accused burning her 90% which led to her death later? Why should the strictest action not be taken against all those police cops who ensured that the accused were out on bail and who ensured that gang rape victim got no security?

Should we be proud of our legal justice system which operates at an excruciatingly glacial pace and makes sure that those who commit rape and gangrape coupled with murdering the rape victim by either setting them ablaze as has nowadays become the latest fashion or in some other manner in some cases? All the Judges of Supreme Court, ex Judges, ex-CJIs, legal giants like K Parasaran, Soli J Sorabjee, Kapil Sibal, Harish Salve, Mukul Rohatgi, etc must ponder over it and think of ways by which the waning public faith in our judicial system is restored! If the public faith is destroyed then people will start taking law in their own hands to deliver “instant justice” which can never be good for our country!

It is most shocking that the incidents of not just rape but even gang rape followed by setting ablaze the victim is increasing very rapidly in our country as we saw most recently in Unnao, Hyderabad and many other cities but still we don’t get to read gang hanging! Are gang rapists immune from death penalty? Why is it that under our penal laws there is no mandatory death penalty for gang rape?

Why is it that under our penal laws there is no mandatory life imprisonment also for gang rape as stipulated in Section 376D of the IPC? Why the punishment for gang rape as stipulated in Section 376D of the IPC is “shall not be less than twenty years but which may extend to life”? Why this “discretion bomb” in form of “may” is inserted in Section 376D dealing with gang rape?

Should this “discretion bomb” not be defused promptly by removing it and providing for “mandatory death penalty” considering the irrefutable fact that gang rape incidents are increasing alarmingly in our country followed by even gang burning of gang rape victims as we saw most recently in Unnao and earlier in Hyderabad with a 26-year-old veterinary doctor? Can gang rape be justified under any circumstances? Why then do we see that there is no mandatory death penalty for such offences?

Why different punishment prescribed for gang rape on woman under 16 years of age as prescribed in Section 376DA and that on woman under 12 years of age as prescribed under Section 376DB of IPC? Why only life imprisonment under Section 376DA and not death? Why option of life and death in Section 376DB of IPC? Why not mandatory death penalty?

Why even for repeated offenders there is no mandatory death penalty and why the option of life term is added simultaneously in Section 376E of IPC?  All these escape routes must be closed now forever so that rapists are never able to take advantage of the loopholes in our legal system anymore now! But are our politicians, lawmakers and Centre ready to do this or will they be happy with just face saving exercise and lip service? Only time will tell!

Why is it that about 15 to 16 years ago a poor rapist named Dhananjoy Chatterjee was hanged for rape-cum-murder of a Class XI girl in 2004 and that too on circumstantial evidence alone but no gang rapists are hanged ever? How many times have gang rapists been hanged in our country? Why are they not hanged?

Why gang rapists who even murder their victim as we saw in Nirbhaya case are not hanged till now? Should we keep feeling proud that just one poor Dhananjoy Chatterjee whose petition was drafted by prisoners of Tihar jail as was pointed out by senior Supreme Court advocate Colin Gonsalves was hanged about 15 years back in 2004? Should we not feel ashamed that many thousands of rapists cum killers escape death penalty by exploiting the legal loopholes in their favour?

Should we feel proud that since then not a single rapist has been hanged? Should we feel proud that even though thousands and thousands of rape incidents keep happening all across our country but yet we don’t see any hanging since 2004 when Dhananjoy was last hanged? Should our judiciary, lawmakers, Parliament and Centre feel very proud on this?

Why just recently we saw how people threw flowers on those policemen in Hyderabad who killed those 4 gang rapists when they attacked them as is being alleged and people started celebrating and many politicians started hailing it? Why is it that people are losing faith in the ability of our judiciary to deliver justice in time? Is it not a matter of utmost concern for all of us that encounter killings is being glorified as people believe that the legal system has been designed in such a manner that it ensures that rapists and gang rapists are not hanged for many decades?

Why is it that Arvind Kejriwal who is Chief Minister of Delhi while expressing concern over people’s loss of faith in the criminal justice system  openly says that, “People across the country are agitated over reports of horrible rape and murder incidents happening across the country that have come to light of late – whether it is Hyderabad or Unnao [where a rape victim was burnt earlier this week]. That’s a reason why people are expressing happiness and satisfaction over the police encounter in Hyderabad?” Why Kejriwal further says that, “It is also something to be worried about, the way people have lost their faith in the criminal justice system. This demands introspection and all governments must come forward and work together strengthening the criminal justice system and investigating agencies?” We all must seriously introspect on this!

Why is it that even after the killers of Nirbhaya who had been convicted by the Supreme Court and even after five years of death penalty being convicted by the Delhi High Court have not been hanged top death till now? Why their mercy petition keeps hanging? Is this the real beauty of our judicial system for which we should feel proud?

Why even Supreme Court does not say anything on it? Why even in terror cases like the killing of former PM late Rajiv Gandhi, killing of former Punjab Chief Minister Beant Singh, mercy petition keeps pending for decades? Should we be proud of this and justify it in the name of “due process”?

The Vice President M Venkaiah Naidu very rightly said that,  “What happens even after punishment is given to convicts. We all are witness… appeal, mercy (petition)… can anybody think of having mercy on such people? This kind of violation of dignity of women cannot go on unchallenged. What is required is not a new bill; what is required is political will, administrative skill and then change of mindset and then go for the kill of the social evil.” He also rightly said that minors who know how to rape should not be given any benefit and must be punished just like others! Rightly so!

Why should a definite time not be set for completing rape cases? Why should a definite time not be set for deciding rape cases in lower courts, High Court as well as the Supreme Court also? Why should review petition not be abolished or at least time limit set for deciding it?

Why should mercy petition for heinous crimes like gang rapes and terror cases not be abolished or at least a time limit be set up for deciding it? Why Centre repeatedly ignores such demand made by prominent persons in this regard? Whose interest is served in doing so? Should we be proud of it? Why is it that it takes decades or many years to decide a mercy petition? Why can’t it be decided within few days as pointed out by former Attorney General Soli J Sorabjee?

It is good to note that even our President Ram Nath Kovind rightly pointed out that incidents of demonic attacks on women have shaken the conscience of the country. He rightly said that women safety is a very serious issue and a lot of work has been done on this but much remains to be done. He also advocated that those convicted under the POCSO Act should be deprived of their right to mercy petition as they do not need any such right. Here I would beg to differ with the President most humbly and add that there should be no discrimination of POCSO and others and all the rapists and all the terrorists deserve no mercy petition under any circumstances and even if it is still not abolished it must be decided within a short span of time say a few days or weeks and not in many decades which only gives a potential tool to our adversaries to take potshots at the manner in which anyone can get away even after killing the former PM of India as we saw in case of late Rajiv Gandhi where mercy petition was not decided even after decades!

Why can’t strict and speedy justice be provided to people? Why should the 45% of lawmakers who have been elected to Parliament and who are facing themselves serious charges of rape and murder not be debarred permanently from entering politics until their name is cleared of all charges by the top court itself? Why no law has been enacted in this regard?

Why do we expect that such lawmakers who are themselves facing rape charges will support laws that mandates compulsory death penalty for all rape and terror cases? Are we not foolish? What they will favour is that just a single rapist like the poor Dhananjoy Chatterjee is hanged on the basis of circumstantial evidence alone once in 15 years and no rapists or gang rapists are hanged all these years even after they set the victim ablaze!

They will advise us that law will take its own course! They will advise us to be patient and have faith in India’s judicial system! It is high time and now the Supreme Court too must speak out most strongly against all the inadequacies in our criminal justice system due to which people’s faith in it is getting steadily dwindled as is being pointed out repeatedly in different newschannels, different newspapers and different magazines which is certainly not a healthy sign for a democratic country like India! Parliament too must seriously debate on it and should give this most sensitive issue of woman’s safety and of according nothing but death penalty to those perpetrate the most horrifying crime against women  the topmost priority instead of just debating trivial issues like that of onion or tomato or radish! Let’s hope so!

Sanjeev Sirohi

Death Penalty: An analysis

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INTRODUCTION

Death as a penalty servesa deterrent as well as retributive form of punishment.The retributive aspect of the punishment is meant to gratify the instinct of revenge or retaliation which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. People will not be disposed to resort to private revenge if they can have the offender brought to book and adequately punished for his crime through a court of Law, Punishment of the wrong-doer is the vengeance of the wronged, and this reinforces the faith of the people in the administration of justice. If people can get away after committing serious crimes by being awarded light punishments, it may induce the person wronged and his friends and sympathizers to resort to private vengeance which is not at all desirable for maintaining peace and order in society.In the words of (Salmond) “A society which felt neither anger nor indignation at outrageous conduct would hardly enjoy an effective system of law”, ‘Kant’ considered death as a proper punishment, if the criminal was beyond redemption, ‘Hobbes’ asserted that every man had under the natural order has the right of reprisal for wrongs done to himself or anyone else.Bentham’s theory of penal objectives also provides that pain of offender should be higher than pleasure he enjoys by commission of the crime.

As, Crime has rightly been described an act of warfare against the community touching new depths of lawlessness,the object of imposing deterrent sentences is threefold:

1)      To protect the community against callous criminals for a long time.

2)      To administer as clearly as possible to others tempted to follow them into lawlessness on a war scale if they are brought to and convicted, deterrent punishment will follow, and

3)      To deter criminals who are forced to undergo long-term imprisonment from repeating their criminal acts in future. Even from the point of view of reformative form of punishment “prolonged and indefinite detention is justified not only in the name of prevention but cure. The offender has been regarded in one sense as a patient to be discharged only when he responds to the treatment and can be regarded as safe for the society.

Being a human we consider Life is the most wonderful gift that God gives us. He also gives us the power to do what we wish with that life. We can keep it and guard it, or we can take it away. It follows that murder is the worst crime anyone could ever commit. It is a crime that no one can ever make right because once you take a life away you can never give it back. Penalties exacted from criminals are made to fit the crimes committed. The worst crime possible should therefore receive the worst penalty possible. That penalty is the death penalty. A killer who is a perpetrator of other’s right to live can’t claim to have an inviolable right to live. The focus should be on the mischief flowing from what the criminal has done to his victim and those near and dear to him and greater attention be paid to victim logy and therefore to the retributive aspect of punishment.The Origin of Death Penalty can be traced back to Eighteenth Century B.C. in the Code of King Hammaurabi of Babylon, which codified the death penalty for 25 different crimes.The death penalty was also part of the Fourteenth Century B.C.’s Hittite Code, the SeventhCentury B.C.’s Draconian Code of Athens, which made death the only punishment for all crimes,and the Fifth Century B.C.’s Roman law of the Twelve Tablets. Death sentences were carriedout by such means as crucifixion, drowning, beating to death, burning alive, and impalement.In the Tenth Century A.D., hanging became the usual method of execution in Britain. Bythe 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting down atree, and robbing a rabbit warren. Because of the severity of the punishment of death, manyjuries would not convict defendants if the offense was not serious. This led to reforms ofBritain’s death penalty. From 1823 to 1837, the death penalty was eliminated for over 100 of the222 crimes punishable by death. (Randa, 1997) In the early part of the nineteenth century, many states reduced the number of their capital crimes and built state penitentiaries. In 1834, Pennsylvania became the first state to move executions away from the public eye and carry them out in correctional facilities. In 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. Later, Rhode Island and Wisconsin abolished the death penalty for all crimes. By the end of the century, the world would see the countries of Venezuela, Portugal, Netherlands, Costa Rica, Brazil and Ecuador follow suit (Bohm, 1999 and Schabas, 1997).

 

PRESENT SCENARIO

The issue of death penalty has been debated, discussed, studied from a prolonged time but till now no conclusion can be drawn about the retention or abolishment of the provision. As above mentioned Death penalty has been a mode of punishment from time immemorial which is practiced for the elimination of criminals and is used as the punishment for the heinous crimes.In many countries the death penalty is dropped and is replaced by life imprisonment.Various countries have different outlook towards crime in different ways. In Arab countries they choose the retributive punishment of “an eye for an eye” others have deterrent punishment. Of late there has been a shift towards restorative and reformist approaches to punishment, including in India. The International movement for the abolition of capital punishment came in vogue only after the Constitution of Universal Declaration of Human Rights, 1948. According to Article 3 of UDHR, imposition of death penalty is in conflict with the ‘Right to Life’ which is the basic human right. The efforts have been made by the General Assembly of United Nations since 1959 towards the promotion of respect for right to life and desirability of abolishing capital punishment. Many international instruments, most notably the International Covenant on Civil and Political Rights prohibit the imposition of Death Penalty. One of the major steps towards achieving the goal of abolishing death penalty is the adoption of second optional protocol to the International Covenant on Civil and Political Rights on 15th Dec. 1989 by the General Assembly with the help of the Human Rights Commission. The optional protocol aims at the abolition of the Death sentence as a punishment. Similarly, a protocol to the American Convention on Human Rights to abolish Death Penalty was concluded in 1990. Recently, in December 2007, the United Nations has introduced a moratoriumon execution with a view to abolish Death Penalty. More than two-third of the countries in the world have now abolished the death penalty in law or practice.In India the present position regarding death sentence is quite a balanced one. But the wide judicial discretion given to the court has resulted into enormously varying judgment, which does not potray a good picture of the justice delivery system. What is needed to be done is that the principle laid down in cases like Bachan Singh or Machhi Singh have to be strictly complied with that is the death penalty must be awarded only in ‘rarest of rare cases’ and for ‘special reasons’Though what constitutes a ‘rarest of rare case’ or ‘special reasons’ has not been answered either by the legislature or by the Supreme Court. However, the application of its principles by the courts to various cases before them has been very uneven, and inconsistent. This has naturally led to the criticism that the jurisprudence suffers from a judge-centric approach, rather than a principles-centric approach. The Supreme Court has itself admitted on several occasions that there is confusion and contradiction in the application of the death penalty. Last year, 14 eminent retired judges wrote to the President, pointing out that the Supreme Court had erroneously given the death penalty to 15 people since 1996, of whom two were hanged. The judges called this “the gravest known miscarriage of justice in the history of crime and punishment in independent India”.

The opinion of Justice Ruth Bader Ginsburg, (U.S. Supreme Court) targeting the Indian Legal system based on the political power, “I have yet to see a death case among the dozen coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial… People who are well represented at trial do not get the death penalty.” Just over four years ago, AjmalKasab walked into Mumbai’s ChatrapatiShivaji Terminus railway station and ‘waged war with India’. He reportedly told police he wanted to replicate 9/11 in India. He was prosecuted, convicted and, on 21 November, executed by the Indian Government. Many death row convicts signed a petition that was presented to the President of India under Article 72 of the Constitution that appealed to his power to grant mercy to a convict after the Supreme Court has confirmed the death sentence. As an appeal for mercy, the petition did not rely on substantive legal grounds or due process. The events leading up to the execution strengthen the view that the due process guarantee of the Indian legal system cannot protect prisoners from the lottery based on poverty, class, caste geography and prosecutorial independence that the death penalty continues to be.

 

CONCLUSION

Death sentence must fulfill the conditions for protection of human rights in Criminal Justice Administration in India. In European countries the agitation against capital punishment started with criminologists Jeremy Bentham and J.S. Mill’s writings for due punishment; who maintained that punishment must be just, adequate, fair, reasonable and proportionate to the crime to achieve the goal and should never be excessive.

The execution of death row prisoners in India might have come to a near standstill, with only one in the last decade, and another recently. Yet, the frequency of confirmation of death sentences by the Supreme Court has created a large pool of death row prisoners in the country, who may be living between life and death constantly for many years, till the executive decides on their mercy petitions. When the Supreme Court time and again admits that many of these prisoners might have been sentenced on the basis of erroneous legal precedents set by it, the executive cannot pretend to be unconcerned.Due to arbitrary and discriminatory decisions and unjust procedures, basic rights of accused are violated in inhuman and brutal manner which are not only contrary to the National Human Rights principles envisaged in the Constitution but also contrary to the Universal Human Rights ethos. In order to serve as a just and effective mechanism for administration of justice to all sections of society, law should be nourished by and nurtured in human rights.


Article 21: The Omnibus Article

Broadly speaking, the doctrine of separation of powers has not been expressly provided for in the Constitution of India, the Suprema Lex, but less to say it can be made out from the scheme of the Constitution.

Doctrine of Separation of Powers asserts the division of powers between the three wings of the state: the legislature, the executive and the judiciary.

If the work of the legislature is to frame laws and the work of the executive is to implement laws then the work of judiciary is to interpret laws. The Supreme Court in all its magnificence is the custodian of the Constitution.

There were several occasions when there was locking of the horns when question was to be decided in regards—whether judiciary comes under the ‘meaning of state’ so far as article 12 of the constitution is concerned, this question was finally settled with ruling in the case of Prem Chand Garg v. Excise Commissioner, where by it was held that judiciary is the third wing of the state howsoever functionally independent, with no deterrence to judicial activism which it enthrals.

Occasions have been there when the decisions rendered by the apex court had been put in spotlight either to appreciate its spirit of judicial activism or to criticise it for its judicial over-reach.

No legal provision has attracted more controversy than Article 21 of the constitution, which provides for ‘right to life and personal liberty’—the article on pen and paper &in black and white states:  ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’

It is the judicial interpretation and judicial activism that has given enormous dimensions to this article making it an omnibus article.

One of the first time when the efficacy of this article was explored beyond any reach and bound was in case of ‘Chairman, Railway Board v. Chandrima Das’, where by the apex court went on record to state that even though article 21 is in scheme of the fundamental rights garnered by the constitution and these rights are available to citizens only, article 21 is a mighty exception as it is applicable even to foreigners. It is important to make a distinction over here between a citizen and a non-citizen, as it is a question devoid of any doubt that Article 14 of the constitution is applicable even to non-citizens such as a ‘company’ (Chiranjit Lal Chaudary v. UOI), what to say of foreigners- Article 21 limits itself to citizens and so far as non-citizens are concerned to foreigners, not to a company- whether foreign or indigenous.

Fundamental rights enshrined in part III of the Constitution form the spirit of the Suprema Lex, protection to the same is offered by article 32 and 226, the writ jurisdiction of the Supreme Court and the High Court respectively. Here so far as article 21 is concerned by way of judicial interpretation and activism a new branch of rights have aroused over the decade—reason for this is that so far as the scheme of Indian Constitution is concerned  judicial decisions so rendered by the Supreme Court have the force of being the ‘law of the land’.

A set of exhaustive rights that article 21 in matter and in spirit is capable of offering is as follows:

Serial No. Rights offered under Article 21. Case law in which the right got recognised.
1. Right to food People’s Union for Civil Liberties v. UOI
2. Right to shelter Chameli Singh v. State of U.P.
3. Right to livelihood Olega Tellis v. Bombay Municipal Corporation
4. Right to education Mohini Jain v. State of Karnataka; Unni Krishnan v. State of A.P.
5. Right to clean environment M.C.Mehta  v. UOI
6. Right to privacy Govind v. State of M.P.
7. Right to marriage Lata Singh v. State of U.P.
8. Right to travel abroad Maneka Gandhi v. UOI
9. Right to live with human dignity Maneka Gandhi v. UOI
10. Right against bondage Bandhu Mukti Morcha v. UOI
11. Right to emergency medical aid Parmanand Katara v. UOI
12. Right, not to be driven out of a state NHRC v. State of Arunachal Pradesh

 

The rights so mentioned above are regal in sense and spirit. Apart from these, this article empowered the apex court to nomenclaturefew other rights by way of judicial interpretation. These are as follows:

Right to speedy trial (Sheela Barse v. UOI)

Right against prison torture and custodial death (Sunil Batra v. Delhi Administration)

Right to compensation for illegal – unlawful detention (Rudal Shah v. State of Bihar)

Right against handcuffing (Prem Shankar Shukla v. Delhi Administration)

Right against bar fetters (Charles Sobhraj v. Suptd. Central Jail)

Right against solitary confinement (Sunil Batra v. Delhi Administration)

It is very necessary to note that in a democracy no right is absolute. All rights are subject to reasonable restrictions of: morality, health, public order, state security, public safety & public policy.

 Justice Krishna Iyer while speaking for majority in the case of Sunil Batra v. Delhi Administration made it constitutionally clear that when a person gets arrested, he steps into the prison cell with his fundamental rights intact and not in devoid of them, he also made it amply clear that Article 21 is to be interpreted in the widest possible sense because fundamental rights form the spirit of the Constitution and Article 14, 19 and 21 are the spirit of the fundamental rights- over and onto which all other fundamental rights rest.

FACETS OF ARTICLE 21:

Is right to life inclusive of right to die? – This question was answered in great detail in case of Gian Kaur v. State of Punjab, here it was held that word ‘life’ is to be read in consonance with word ‘dignity’ so far as article 21 is concerned, but right to life in no stretch on imagination shall include right to die. ‘Right to life’ means‘right to life with human dignity’ and not mere animal existence, but it shall not include right to end life even under medical supervision by way of administration of lethal drugs or otherwise. Right to die shall not be available to anyone even though the claimant of this right is suffering acute pain and agony of all sorts, incapable of taking slightest care of himself and is living on ‘life support system’, this was the majority judgement in this case.

A legal breakthrough came about with Aruna Shanbaug case where by the apex court for the first time offered legality to the concept of euthanasia or mercy killing in some form (with conditions attached to it). A person in a persistent vegetative state (PVC), deriving his existence from life support system can apply for euthanasia, but here also his death shall not be occasioned by administration of lethal injection or otherwise but by merely removing the life support system from which he (patient) draws his existence.

Hence forth it shall not be wrong to say that with sociological and psychological development of the society, Article 21 is witnessing tremendous development—truly it is a welfare piece of legislation.

 Article 21 and Sec. 377, IPC:

It was in July 2009 that a judgement of Delhi High Court gave green signal to consensual sexual intercourse between same sex adults. It was celebration time for gay rights activists generally and for NAZ foundation in particular, but the judgement gathered a lot of fume and criticism. Judicial interpretation of Article 21 formed the crux of the judgement. In no time an appeal to the Supreme Court was filed against the decision rendered by the Delhi High Court. The case is still in pending in the apex court, observations made by the SC and articles published informing the same signal that its time for sec.377, IPC to go.

As a three judge bench decision of the SC (comprising of Chief Justice K G Balakrishnan, Deepak Verma and B S Chauhan) offered legality to live in relationships and pre-marital sex, late in March 2010, stating that Article 21 is not only a welfare piece of legislation but also a progressive piece of legislation, may be the same wisdom needs to be applied to settle scores between the ongoing dispute between article 21 and sec.377, IPC.

 Article 21 and the Death Penalty:

Sec.354 (3) of Cr.P.C, 1973 states that death penalty can be given only in rarest of rare cases; whereby the facts and circumstances of the case are so grave that they intrinsically shock the conscience of the court. Also, this provision provides that– the bench heading the particular case needs to give ‘reasons’ for their decision in case the punishment rendered is life imprisonment and ‘special reasons’ in case the punishment rendered is death penalty.

In case of Bishnu Deo Shaw v. State of West Bengal, it was held that ‘life imprisonment is the rule and death penalty is an exception’– also that death penalty is ultra vires the constitutional mandate- Article 21.

But, there have been cases where by death penalty had been upheld as a matter to meet the ends of justice, cases ranging from Bachan Singh v. State of Punjab to Machhi Singh v. State of Punjab and Dhananjoy Chatterjee v. State of West Bengal.

The ‘abolitionist’ argue that- crime breeds crime and murder breeds murder, murder and capital punishment are not opposites that cancel out each other but are of same kind.

The retentionist argue that all fundamental rights are subject to reasonable restrictions of public order, morality, health, public safety and state security and Article 21 is no exception.

So far as the criminal jurisprudencein regards to‘theories of punishment’ is concerned the trend has been revolutionary in nature- from retribution and deterrent theories of punishment to preventive, reformatory & rehabilitative theory of punishment.

Death penalty in India is given in the following cases:

  1. An act of treason or waging war against Government of India—sec.121, IPC; abetment of mutiny—sec.132, IPC.

     2.Perjury resulting in conviction & death of an innocent person—sec.194, IPC.

     3.Murder—sec.302 & 303, IPC.

     4.Abetment of suicide of a minor, an insane person or intoxicated person—sec.305, IPC.

      5. Attempted murder by a life convict (a person undergoing life imprisonment)—sec.307, IPC.

       6.Dacoity with murder—sec.396, IPC.

        7.Kidnapping for ransom—sec.364-A, IPC.

 

Much has been said by the abolitionists against the death penalty and much by the retentionists in favour of death penalty, the future in regards to abolition or retention of death penalty lies in the hands of society backed by social morality and psychology.

But, the truth of the matter is that India is still in transition phase– redefining its basis of morality and ethics, breaking away from old customs, usages and practises that is dead locking its socio-economic & political growth. India is witnessing high degree of legal development but at the same time crime rate in India continues to be high.

India leads the world with the most murders, 32,719 murders per year, followed by Russia with about 28,904 murders per year. (Source: Raman Sunil; ‘India tops list of murder numbers’; BBC News- June 2008)

There are nearly 17 dowry deaths in India every day; rape every 47 minutes; women-kidnapping and abduction every 44minutes; crime against fair sex every 6 minutes. (Source: Female criminality and victimity in India, 2005- S.S.Srivastava)

Facts on record indicate capital punishment needs to be retained, so far as ethicality of death penalty in regards to Article 21 is concerned- sec.354(3) of C.R.P.C., 1973 in matter and in spirit is enough to take care of that, as words used in the section are farsighted and far-reaching.

 Article 21 and the narco-analysis test:

Article 20 speaks of three doctrines in particular: doctrine of ex post facto law i.e. no one can be punished for law that is not time being in force & no one can be given punishment more than the statutory maximum; doctrine of self-incrimination i.e. no one can be forced to be a witness against himself & doctrine of double jeopardy i.e. no one can be punished twice for the same crime or misdemeanour.

It was in the case of Selvi v. State of Karnataka, 2010, in which SC for ever over turned the fortune of country’s expert agencies specialised in conducting narco-analysis test, brain mapping test & polygraph test. Relying on the language used in Article 20(3) the apex court said that conducting such tests is violative of the citizens ‘right against self-incrimination’. The apex court went on record to further more declare narco-analysis test violative of Article 21.

This decision of the SC attracted a lot of criticism on the following grounds:

  1. A test such as the narco-analysis test, brain mapping & polygraph test are conducted under medical supervision under a medical expert and hence is within the precincts of sec.45 of the Indian Evidence Act,1872.

 

     2.Narco-analysis test is somewhat a full proof measure because first narco-analysis test is conducted and then there by its results are checked and scrutinised by way of conducting lie detector test, polygraph test and brain mapping test.

 

    3.Where the world is moving scientifically forward to decide upon the evidential permissibility of PLR tests (past life regression analysis), declaring that lie detector test or brain mapping test is not a permissible piece of evidence is a step backwards.

Point 1 & 2 are very much convincing but not point 3. Well however the apex court did not answer any of these questions. Attracting article 21 to the following case was also seen with convincing eyes.

Conclusion: Article 21 saga is endless and doubtless to say that article 21 is a welfare piece of legislation; its extent is time and again redefined and re-extended. No fundamental right was ever interpreted with so much wisdom and acuteness as of article 21. Judicial activism and fair judicial interpretation of legal provisions is the key to public welfare in all lines of action, this is what article 21 saga is an example of- alllegal and judicial wisdom must be summarised in the following words ‘Salus populi est suprema lex’, the spirit of pro bono publico.