JOIN USThe Nirbhaya rape and murder case has reached closure after five years with the right affirmation of conviction of the four accused, by the Supreme Court but with the wrong confirmation of the quantum of punishment. The court has upheld the lower courts’ award of death sentence for the accused, with little application of the mind on the fairness and effectiveness of its sentence. The death sentence was wrong in the first place, especially as a principle, and should not have a place in any civilised and enlightened penal code. The aim of the law is to deter and discourage the commission of crime. It is an accepted legal principle that it is not the severity of punishment but its certainty that deters criminals.
It has been proved in practice that capital punishment does not reduce crimes. There is no justification for the death penalty even in the “rarest of rare” cases. The norm is interpreted differently, subjectively and inconsistently by courts. The crime committed in the Bilkis Bano case was no less brutal. She was gang-raped and 14 members of her family were killed. When the Bombay High Court awarded life sentence to the accused in that case, there was no reason for death sentence in the Nirbhaya case.
The amicus curae in the case were against the award of death sentence for the accused. All the accused are of young age and should have been given the chance to reform, which is the basic aim of any system of justice. Even a life sentence is too long and harsh a punishment. It must be noted that former CJI Justice J S Verma, whose report formed the basis for the amended laws on gender justice and sexual violence, was against the award of death penalty in rape cases. A seven-year jail term in rape cases would meet the ends of justice.
The state should respect life and should not kill. The number of sexual crimes has not come down after death penalty entered the statute book in India for such crimes. A total of 104 countries have abolished death penalty, including all European countries, while many others do not practice it. In many Scandinavian countries even life sentence has been abolished. India too should abolish this inhuman practice which is primitive, unfair and discriminatory. The Law Commission has called for abolition of death penalty. The courts should refrain from using this power to kill, because they should know that justice should serve life and not put an end to it.