Analysing Capital Punishment in Brutal Rape Case of Nirbhaya DISHA GUPTA BASICS OF LAW Thu, Jan 23, 2020, at ,12:01 PM Mukesh Singh and five others brutally gang-raped a 23-year-old Delhi paramedic student Nirbhaya, in December 2012. The incident was widely condemned, both in India and abroad. Subsequently, public protests against the state and central governments for failing to provide adequate security for women took place in New Delhi, where thousands of protesters clashed with security forces. Looking at the seriousness of the matter, a court-ordered death sentence to be given to 4 of the convicts. Out of six accused, one committed suicide at the Tihar Jail and the juvenile was sent to a reformation home for three years. Previously, the hanging was to take place on 22nd Jan 2020 but the death warrant could not be executed as some of the accused used legal options, such as moving a curative petition in the Supreme Court and mercy petition to the President. However, the curative petition was dismissed by the Supreme Court and the mercy plea was rejected by the president. Simultaneously, the Delhi HC issued fresh death warrants against the four Nirbhaya convicts and set a new date for their hanging that is February 1, 2020, at 6 am. On the extension of days for hanging the convicts Nirbhaya's mother expressed grave displeasure, she said that “Those who attacked my daughter are being given a thousand options, but we have no rights?” It is so disheartening that a mother who has been waiting for justice for 8 years has to wait more and more, even after the conviction has been confirmed. Further, Chief Justice of India (CJI) Sharad A. Bobde said that a condemned person cannot fight the death penalty endlessly and it is important that capital punishment should reach its finality. He also asked the Solicitor-General Tushar Mehta, that, “whether a condemned person, who reforms after the award of the death sentence by a court, should be spared the noose?” To which Mr Mehta replied, “If that is accepted, there will be no death penalty. You can't kill your parents and then claim mercy saying you are an orphan”. CAPITAL PUNISHMENT MEANING Capital punishment, also called the death penalty, execution of an offender sentenced to death after conviction by a court of law for a criminal offence. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term death penalty is sometimes used interchangeably with capital punishment. The term "Capital Punishment" stands for the most severe form of punishment. It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity. While the definition and extent of such crimes vary from country to country, state to state, the age to age, the implication of capital punishment has always been the death sentence. By common usage in jurisprudence, criminology and penology, the capital sentence means a sentence of death. EVOLUTION OF CAPITAL PUNISHMENT IN INDIA During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly expressed the idea of abolishing the death penalty, but no such provision was incorporated in the Constitution. Private members’ bills to abolish the death penalty were introduced in both houses of parliament over the next two decades, but none of them was adopted. At independence, India retained several laws put in place by the British colonial government, which included the Code of Criminal Procedure, 1898 and the Indian Penal Code, 1860. The IPC prescribed six punishments that could be imposed under the law, including death. The provisions under which the death penalty is given as punishment under IPC are as follows: Section 115- Abetment for an offence punishable with death or imprisonment for life (if offence not committed); Section 118– Concealing design to commit an offence punishable with death or imprisonment for life. Section 121– When armed rebellion (i.e. waging, abetting to waging of war or attempting to wage war) is made against the constitutionally and legally established government; Section 302– Causing murder of another; Section 303– When a life convict person murders another person; Section 396– Causing dacoity with murder; Section 376A (as per the Criminal Law Amendment Act, 2013)- Rape The provisions under CrPC are as follows- For offences where the death penalty was an option, Section 367(5) of the CrPC 1898 required courts to record reasons where the court decided not to impose a sentence of death: “If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.” The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and several changes were made, notably to Section 354(3): “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.” These amendments also introduced the possibility of a post-conviction hearing on sentence, including the death sentence, in Section 235(2), which states: “If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.” CONSTITUTION POWERS OF THE SUPREME COURT IN MATTERS RELATING TO DEATH SENTENCE Bachan Singh v. State of Punjab- In this case, the constitutional bench of the Supreme Court discussed at length the question of whether the provision of the death penalty as an alternative punishment for murder in a violation of Article 19 and 21 of the Constitution. In this judgement, Justice P.N Bhagwati gave his minority judgment observing that the death penalty is a violation of Article 19 and 21 of the Constitution. While the four judges in the majority agreed otherwise. Machhi Singh and Ors. v State of Punjab- It is considered as a landmark judgement on the subject of the death penalty. The Apex Court while discussing the aggravating and mitigating circumstances laid down the principles which would serve as a guideline to the courts while deciding the sentence to be awarded in murder cases. Rajendra Prasad v. State of UP- Justice Krishna Iyer had empathetically stressed that the death penalty is violative of articles 14, 19 and 21. With this the Justice Iyer said two conditions under which the death penalty can be given: While giving the death penalty the court shall record special reasons. Only in extraordinary cases the death penalty to be imposed. State of Tamil Nadu v. Nalini- This case is popularly known as Rajiv Gandhi’s assassination case. The offenders were accused under Indian Evidence Act, 1872, Indian Wireless Telegraphy Act, 1933, The Foreigners Act, 1946, Passports Act, 1967, Arms Act, 1959, Explosive Substances Act, 1908, Indian Penal Code, 1908 (IPC), TADA Rules, The Terrorist And Disruptive Activities (Prevention) Act, 1987. In the case, there were 26 accused out of which four accused were punished death penalty by the Apex Court. The accused were from the LTTE (Liberation Tigers of Tamil Eelam) group and were seeking revenge for the Indian government’s decision for sending army troops in Srilanka.