Capital Punishment For the Offence of Rape

    Rape is one of the heinous crimes that can destroy one’s life within very less time. It has become a nightmare for the females in India and came to limelight after the case of Nirbhaya 2012 which presented to the public that a person in this world can fall to this extent even and do something of the kind that no one can imagine. 

    Introduction

    Rape is a sexual assault which usually involves sexual intercourse or another type of sexual penetration by the accused against the consent of the victim. In ancient times, rape was considered a weapon of war. Women were raped by the soldiers of the enemy’s army and were sometimes raped by HIV positive men. Sexual slavery and systematic rape were declared crimes against women by the UN in 1993.

    Rape and Punishment for Rape 

    Section 375, Indian Penal Code lays down that a man is said to commit “rape” if he penetrates his penis through any extent into the vagina, mouth, urethra or anus of a woman or inserts any object, to any extent, or any part of a body other than the penis into the vagina, urethra and anus of a woman or put in his mouth into the vagina, urethra or anus of a woman or makes her to do so with him or any other person, except in the case hereinafter excepted, under circumstances falling under any of the seven following descriptions: 

    1. Against her will.
    2. Without her consent.
    3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
    4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
    5. With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 
    6. With or without her consent, when she is under eighteen years of age. Explanation — Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape. 
    7. When she is unable to communicate consent.

    However, sexual intercourse by a man with his wife, where the wife is over eighteen years of age, will not classify as rape.

    Further, Section 376 of the Code lays that whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may be for life, and shall also be liable to fine unless the women raped is his wife and is not under fifteen years of age. 

    Additionally, the Anti Rape Bill, 2013, introduced after Mukesh & Anr. v. State for NCT of Delhi & Ors [1] in 2012 and assented by the then-President, Mr. Pranab Mukherjee, assured life imprisonment(14 years) or death sentence in rare cases for the crime of rape and stringent punishment of 10 years for offenses like acid attack, stalking, etc.   

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    So basically, if anyone has sexual intercourse with anyone without her consent will be considered as rape and will be punished for life imprisonment or death sentence in rare cases. But even this stringent punishment hasn’t been able to provide deterrence to the offenders, and the cases of rape have seen an increasing trend. In a nation like India, where people are hesitant to go to the police, it’s not surprising to see that many of the cases aren’t even reported, which are coupled by the fear of the society.

    Reasons for Rapes 

    • Social Mentality and Illiteracy – Family’s mentality is the root cause behind these issues, The traditional mindset of the family to not talk about sex and lack of women empowerment and education and blaming the victim for the rape is equal to adding fuel to the situation. When was the last time you had an open conversation about consensual sex with your family?
    • Delayed Legal Action –In Liberia, the government declared rape as a national emergency, as there was a spike in the cases of rape cases which was still far lesser than the average cases of rape in India. After the Nirbhaya rape case, there has been an amendment made in the anti-rape laws, which are justified in the anti-rape bill 2013 but its implementation is still questionable, the delay in justice can be seen in the nirbhaya case only as it took 7 long years to punish the culprits.
    • Refusal – Many surveys tells that many people still refuse the fact that rape is not a mistake of women/victim. According to them there is an equal mistake of the victim as of the culprit. Women wearing short clothes, drinking alcohol, roaming out after 7 PM are the reasons behind the happening of rape. This mentality of refusing to accept the fact that the problem lies with them and not how a woman lives her life needs to be changed.
    • Politicization of the Issue – There are only a few cases that are fortunate enough to get media coverage. These are the cases that are used by the politicians to increase their vote bank. Best example is the latest Hathras case, the case was covered by the media for some days and now there is no coverage and no update on what happened to the case. India has never been safe under any government’s rule anyway, the blame game every time effectively ignores the real concern[2]. 

    Punishments for Rape around the World

    Punishment for this heinous crime in other countries are [3]:

    • France – 15 years of imprisonment which can extend up to 30 years depending on the damage and the brutality.
    • China – Death sentence or castration is given to the convicts.
    • Saudi Arabia – Public beheading after the convict has been injected with a sedative.  
    • North Korea – The convicts are sentenced to death by firing squad.
    • Afghanistan – The convicts are shot in the head or are hanged to death within 4 days after the judgment by the court is given and the accused are found guilty.
    • Egypt – Rape convicts are Hanged till death in Egypt.
    • Iran – Hanged till death.
    • Israel – The punishment for Rape convicts is imprisonment for 16 years.

     According to various surveys, countries with capital punishment for heinous crimes has fewer cases of rape as compared to India.

    Capital Punishment In India  

    Capital Punishment means a person is put to death by the state for committing a crime. This law is generally applied in cases where the nature of the crime is very rare. This kind of punishment is separate from other punishments because it is an irreversible punishment, the person who has been given the death penalty won’t come back.

    Capital Punishment has been in practice in 58 countries for various crimes like rape but its validity has been questioned again and again in India because according to various Judges, this kind of punishment is violating article 19, article 20, and article 21 of the Indian Constitution.

    Opinion and Suggestions 

    In my opinion, Capital Punishment is a very important punishment that should be taken up by the Indian government for crimes like rape, but what is more important is that the implementation of these laws. If the implementation of the already existing law would have been better then the question of having capital punishment for rape would have never been raised, the main problem lies within the system, in the case of Nirbhaya, the trial court gave the death penalty to the culprits in 2013 but still, it took 7 years to punish them.

    If the culprits of a prima facie case like Nirbhaya took 7 long years, it clearly reflects on the failure of the Indian judicial system and how many loopholes are present there in the law, countries like Afghanistan punish the culprit within 4 days with the death penalty of the judgment by the court.

    According to the National Crime Records Bureau, rape is the 4th most common crime against women in India. India has recorded 32,033 rape cases in 2019 as per the annual report[4]. 

    • The need of the hour is to educate the boys and men in our society that every woman deserves equal respect and dignity.  
    • Strict implementation of anti-rape laws. 
    • Sex Education should be made mandatory to be taught to teenagers at the right age without any awkwardness because leaving these topics without answering them leads to an increase in curiosity and they try to learn about it from some wrong source which leads to the wrong upbringing of their mentality towards sex.

    It’s high time that the government of India takes some strict measures towards curbing rape culture from our society because every rape is not only affecting one woman but every woman that dreams to live independently in India. 

    References:

    1. Mukesh and Anr. v. State for NCT Delhi & Ors, 6 SCC 1 (2017).
    2. She the people, Reasons behind Rape, available at: https://www.shethepeople.tv/blog/political-parties-politicising-rape-election-agenda/ (Last visited 15/10/2020).
    3. Daily hunt, Rape Punishments in Other Countries, available at : https://m.dailyhunt.in/news/india/english/wittyfeed+global-epaper-wittyglo/15+brutal+punishments+against+rape+all+over+the+world-newsid-79119409 (Last visited 15/10/2020).
    4. The wire, The Official Record of the Rape Cases Recorded in 2019, available at : https://thewire.in/women/average-87-rape-cases-daily-over-7-rise-in-crimes-against-women-in-2019-ncrb-data (Last visited 18/10/2020).

    BY- KASHISH DHAWAN | VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES, GGSIPU, DELHI

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