On November 21, 2012, Mohammad Ajmal Kasab, a Pakistani national and the only surviving gunman involved in the 2008 Mumbai attacks, was executed after Indian President Pranab Mukherjee denied his mercy plea. The decision marked the end of an informal 8-year moratorium on capital punishment in the country. In the 3 years since Kasab's execution, 2 more convicts, Mohammad Afzal Guru and Yakub Abdul Razak Memon, were also hanged for their involvement in terrorist attacks in the 1990s and 2000s. Moreover, even though these are the only executions the Indian state has carried out since 2004, roughly 5,000 convicts have been sentenced to death over the same period and are currently on death row. One might ask, why this disparity between the number of convicts and actual executions? The answer is likely to be that international and domestic pressures have made the government more hesitant to implement capital punishment. Nevertheless, a new trend worth noting within this pattern of disproportionality seems to be emerging, wherein the Indian state is only executing those explicitly involved in acts of terror.
Capital punishment was first incorporated into India's legal system during British colonial rule when, in 1860, the Governor-General of India Council instituted the Indian Penal Code (IPC). The IPC's approach to capital punishment has remained more or less unchanged since and still recognizes the death penalty for various crimes including criminal conspiracy, waging war against the government, and murder. Furthermore, amendments were made to Section 376 of the IPC in 2013 to extend the application of the death penalty to rape "if the act causes the victim's death or leaves her in a permanent vegetative state," a reaction to the brutal 2012 rape and death of a young woman in New Delhi, which made international headlines and ignited mass protests against sexual violence in the country.
However, even though India's Penal Code has seen relatively few changes, the discourse and practice surrounding the death penalty has slowly but steadily changed since the country's independence in 1947, with these changes in attitude gradually being reflected in the law. For instance, while capital punishment was historically considered the standard punishment for murder - with courts having to explicitly justify a decision to pursue a life sentence in jail instead - the tide has steadily turned. Beginning in 1973, courts had to give concrete reasons as to why they were imposing the death penalty rather than other means of punishment. In 1980, the constitutional validity of the death penalty was questioned in the state of Punjab during the Bachan Singh vs. The State of Punjab case. The Constitutional Bench rejected the challenge but mentioned that the death penalty was henceforth only to be applied to the "rarest of rare" cases. The change in the dominant national narrative regarding the death penalty was reflected in the practical application of the death penalty in the next few decades. Whereas the number of executions averaged three per year between 1985-1995, executions were almost completely halted from 1995 to 2012. The hanging of one person convicted of raping and murdering a minor in 2004 was the sole execution in over 15 years. Even though India continued to sentence many people to the death penalty throughout this period (roughly 5,000 between 2004 and 2013 alone), the country demonstrated little resolve in actually implementing these sentences. Instead, through long delays in the sending of mercy pleas to the President and by allowing lengthy appeals processes, India upheld its unofficial moratorium.
2012 seemed to mark a reversal in the Indian government's gradual progression toward the eradication of the death penalty. The President swiftly rejected the mercy pleas of Ajmal Kasab, Yakub Memon, and Mohammad Afzal Guru, so all 3 men were executed for terrorism-related charges. While Kasab had been convicted of 80 charges, the 3 that qualified the use of death penalty were condoned under the Unlawful Activities (Prevention) Act of 1967, the Explosive Substance Act of 1908, and the Arms Act of 1959 even though the Arms Act had been repealed. The UNGA explicitly recognized Kasab as being involved in acts of terrorism. Similarly, Afzal Guru was convicted under The Prevention of Terrorists Activities Act of 2002 and the Explosive Substances Act of 1908, the former of which explicitly recognized him as being involved in acts of terrorism. Finally, Memon was convicted under the Terrorist and Disruptive Activities Act of 1987, The Arms Act of 1959 and the Explosive Act of 1908, the first of which also explicitly acknowledged him as a terrorist.
While the government tries to appease the domestic masses by extending the application of the death penalty to crimes such as brutal rape, it also seems concerned with increasing international and domestic pressures regarding the perceived brutality and inhumanity of capital punishment. In the past, former judges have spoken strongly against the death penalty alongside domestic human rights groups such as the PUCL and international human rights organizations such as Amnesty International and Human Rights Watch, which have released reports regarding death penalty practices in India in an attempt to expose flaws and to participate in the naming and shaming of the practice within the country. There is steadily increasing pressure through recommendations made at the Universal Periodic Review, and more importantly, by India's own Law Commission for the abolishment of the death penalty in India. The latest Law Commission Report released in August 2015 called on India's government to abolish the death penalty with regards to all offenses, except acts of terrorism and waging war against the state, viewing terrorism as different from other crimes and accordingly viewing the death penalty as an exception in this case to act as an effective deterrent for 'maintaining the security of citizens and the integrity of the nation.'
Keeping in mind the domestic and international support for India to abolish the death penalty, what can we make of its application to the crime of brutal rape? First and foremost, we can question the efficacy of the amendment made to Section 376 of the IPC to include brutal rape in the list of crimes punishable by the death penalty. It seems unlikely that the amendment will serve as an adequate deterrent for a crime on the rise as the practical execution of the death penalty always experiences significant delays due to the inefficacy of the court and appeal system. Additionally, those for whom the law had been amended in the first place - those convicted in the Nirbhaya rape case - have still not been executed. In fact, the Supreme Court has delayed its hearing on the convicts' mercy pleas multiple times, and, 4 years later, the masses are still waiting on their calls for justice to be heard. Accordingly, even with theoretical strides taken in the fight against rape culture in India, its practical efficacy still seems questionable.
Given these limitations on the practical application of the death penalty to the case of brutal rape, India may have to reevaluate how to deal with this crime more generally. Primarily, it may have to find an alternative but equally stringent deterrent for this offense due to the lack of efficiency in practically executing the death penalty in such cases. Furthermore, with continued international and domestic pressure to abolish the death penalty in India, it has become more important than ever to find an alternative deterrent to terrorism within the legal system as well. While the death penalty for terrorism has been a valid, dominant narrative nationally thus far in India's attempt to counterbalance aggressive terrorist threats from its estranged neighbor Pakistan, India's growing status as a rising power in the international playing field beckons it to rethink a strategy that adheres to the dominantly accepted norms of human rights. As India continues to increase its global presence, it will eventually have to let go of its older, ineffective practices to appease the international community and the domestic population by demonstrating its commitment to upholding human rights.
Source: Brown Political Review, November 29, 2016
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