Remedies available after award of death penalty

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Death Penalty or Capital Punishment is a government sanctioned order whereby a person is sentenced to death for the commission of any heinous offence. It is given in the rarest of rare cases. Death Penalty aims to make the convict as well as the whole society realize the magnitude of the wrong that has happened. The Nirbhaya Rape case involved an appalling incident of brutality and atrocity at its peak.

It showcased the worst shades of human existence and portrayed the inhumane instincts present in the society. This needs to be corrected in order to avoid the commission of such acts in the future. The execution of the death penalty should be done within a reasonable amount of time, unlike the unreasonable delay in the case of the Nirbhaya Rape convicts.

Details and significance of the incident:

The Honorable Supreme Court had announced death penalty to the convicts of the Nirbhaya Rape case. However, the execution of the same been postponed for a very long time. Recently, the court dismissed the plea of separate hanging of the four convicts. One of the four convicts, Akshay Kumar Singh’s mercy petition has been rejected by the President. Pawan Gupta was the only convict who had not filed any such petition, so he has been provided with a week’s time period to avail the same if he wishes to. The postponement of the capital punishment of these barbaric people has, however, a rage across the nation. It seems apt to comprehend the importance of the phrase, justice delayed is equal to justice denied in this case.

Background: Events leading up to this incident

The Nirbhaya case, a shocking instance of barbarism and atrocity, took place on 16 December, 2012 in Southern Delhi. It involved the brutal rape and murder of a 23-year-old woman, Jyoti Singh. She was returning home after watching a movie with a friend of hers. They both boarded a bus with six men in it, including a minor who told them that the bus was going in the direction in which they wanted to go. The direction of the bus changed all of a sudden and the doors were locked.

The friend of the victim became suspicious and a brawl started between him and the other men. He was ruthlessly beaten with an iron rod and at last he became unconscious. The men then started beating Jyoti with the rod and then raped her in a moving bus. The injuries had caused serious illness to Jyoti around her abdomen, genitals and intestine. The medical reports revealed that the vile act included the penetration of an iron rod. They later on threw Jyoti and her friend outside the bus and cleaned it in order to remove evidence. They were found by a passerby and admitted to Safdarjung Hospital. She was in a very bad condition and was provided an emergency treatment. This inhumane act had shocked the whole nation, leading to a nationwide protest.

Reasons behind this move:

Sexual violence is not just a dehumanizing act but also an unlawful infringement of a woman’s right to live with dignity, sanctity and privacy. It is often destructive of the whole personality of the victim and pushes a woman into deep emotional crisis. A crime which destroys the soul of woman deserves a strict implementation of punishment.

However, there have many debates about the award of death penalty. In the 1980 landmark case of Bachan Singh v. State of Punjab, the Hon’ble Supreme Court, in context of death penalty, propounded that, “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” However, this is a case falling under the rarest of rare cases and hence deserves the execution of death penalty of the convicts.

Remedies available to a person on award of death penalty:

The pardoning principle has been recognized as an act of grace and humanity in every civilized nation. These remedies are as follows:

  •  The award of the death sentence by a trial court must be reaffirmed by a High Court under section 366 (1)of CrPC to make it final.
  • Article 137 of the Indian Constitution provides the power to the Supreme Court to review the orders and judgments passed by it. The review petition can be filed under Section 114 and Order 47 of the CPC.
  • After the dismissal of the review petition, the person can file curative petition. Petitioners can file curative petitions in case of gross violation of principles of natural justice. The curative petition will be sent to the three most senior judges and the bench of judges who passed the judgment. If the majority of them find substance in the petition, then the matter would be sent to the same bench of judges.
  • Mercy Petition can be filed by the convicts. It is to be done within a period of seven days from the date when the Superintendent of jail informs the convicted person of the dismissal of the petition.
  • Article 72 and 161 of the Indian Constitution provides the power to pardon the petitioner to the President and the Governor, respectively.

Scope of improvement in this field:

The court must set a specified period of time within which the judgment of death penalty must be executed. The unnecessary prolonging of the same would tantamount to a great magnitude of emotionally traumatic, financially taxing and socially saddening. The very basic improvement that needs to be done is the uniformity of temporal provision provided to the convicts adjudged to get death penalty. Fast track courts should be more functional, and the element of transparency should be present.

The way forward:

There is a need to speed up the cases having the gravity of involving death penalty. There are many debates going on regarding the constitutionality of the same. However, the reasons why the community as a whole does not endorse the humanistic approach reflected in death-sentence-in-no-case doctrine are not far to seek.

The Supreme Court of India, in the case of Macchi Singh v. State of Punjab (1983), stated the need for fast execution of death penalty. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine.

Secondly, it has to be realized that every member of the community should able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of the law operates as a deterrent for criminals. Every member of the community owes a debt to the community for this protection.

Author: Archie Anant from Rajiv Gandhi National University of Law, Punjab.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

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