Why No Death Penalty For Gang Rape In India?

“Brother, please save me, I don’t want to die. I want to live. Those who have done this to me, I want to see them getting a death sentence.”

These were the most emotional last words of Unnao gang rape victim who was brutally gang raped in March and when police allowed those gang rapists to be released on bail then they decided to burn her while she was on her way to attend the court hearing pertaining to this gang rape case as they were hundred percent convinced that the judiciary of India does not hang gang rapists and it is only once in 15 years that a poor Dhananjoy Chatterjee who could not afford fees to hire lawyers and whose petition was drafted by Tihar jail prisoners is hanged and so the chances of very easily escaping from strict punishment are quite bright! Every Indian will get moved to read what this Unnao rape victim said before dying! What was her fault? That she was a women?

Why are rapists released on bail for some time as we saw in case of Unnao gang rape case? Why no security is provided to the victim who was raped? Why the life and safety of victim is not cared for by police as we saw most unfortunately in Unnao which resulted in accused burning her 90% which led to her death later? Why should the strictest action not be taken against all those police cops who ensured that the accused were out on bail and who ensured that gang rape victim got no security?

Should we be proud of our legal justice system which operates at an excruciatingly glacial pace and makes sure that those who commit rape and gangrape coupled with murdering the rape victim by either setting them ablaze as has nowadays become the latest fashion or in some other manner in some cases? All the Judges of Supreme Court, ex Judges, ex-CJIs, legal giants like K Parasaran, Soli J Sorabjee, Kapil Sibal, Harish Salve, Mukul Rohatgi, etc must ponder over it and think of ways by which the waning public faith in our judicial system is restored! If the public faith is destroyed then people will start taking law in their own hands to deliver “instant justice” which can never be good for our country!

It is most shocking that the incidents of not just rape but even gang rape followed by setting ablaze the victim is increasing very rapidly in our country as we saw most recently in Unnao, Hyderabad and many other cities but still we don’t get to read gang hanging! Are gang rapists immune from death penalty? Why is it that under our penal laws there is no mandatory death penalty for gang rape?

Why is it that under our penal laws there is no mandatory life imprisonment also for gang rape as stipulated in Section 376D of the IPC? Why the punishment for gang rape as stipulated in Section 376D of the IPC is “shall not be less than twenty years but which may extend to life”? Why this “discretion bomb” in form of “may” is inserted in Section 376D dealing with gang rape?

Should this “discretion bomb” not be defused promptly by removing it and providing for “mandatory death penalty” considering the irrefutable fact that gang rape incidents are increasing alarmingly in our country followed by even gang burning of gang rape victims as we saw most recently in Unnao and earlier in Hyderabad with a 26-year-old veterinary doctor? Can gang rape be justified under any circumstances? Why then do we see that there is no mandatory death penalty for such offences?

Why different punishment prescribed for gang rape on woman under 16 years of age as prescribed in Section 376DA and that on woman under 12 years of age as prescribed under Section 376DB of IPC? Why only life imprisonment under Section 376DA and not death? Why option of life and death in Section 376DB of IPC? Why not mandatory death penalty?

Why even for repeated offenders there is no mandatory death penalty and why the option of life term is added simultaneously in Section 376E of IPC?  All these escape routes must be closed now forever so that rapists are never able to take advantage of the loopholes in our legal system anymore now! But are our politicians, lawmakers and Centre ready to do this or will they be happy with just face saving exercise and lip service? Only time will tell!

Why is it that about 15 to 16 years ago a poor rapist named Dhananjoy Chatterjee was hanged for rape-cum-murder of a Class XI girl in 2004 and that too on circumstantial evidence alone but no gang rapists are hanged ever? How many times have gang rapists been hanged in our country? Why are they not hanged?

Why gang rapists who even murder their victim as we saw in Nirbhaya case are not hanged till now? Should we keep feeling proud that just one poor Dhananjoy Chatterjee whose petition was drafted by prisoners of Tihar jail as was pointed out by senior Supreme Court advocate Colin Gonsalves was hanged about 15 years back in 2004? Should we not feel ashamed that many thousands of rapists cum killers escape death penalty by exploiting the legal loopholes in their favour?

Should we feel proud that since then not a single rapist has been hanged? Should we feel proud that even though thousands and thousands of rape incidents keep happening all across our country but yet we don’t see any hanging since 2004 when Dhananjoy was last hanged? Should our judiciary, lawmakers, Parliament and Centre feel very proud on this?

Why just recently we saw how people threw flowers on those policemen in Hyderabad who killed those 4 gang rapists when they attacked them as is being alleged and people started celebrating and many politicians started hailing it? Why is it that people are losing faith in the ability of our judiciary to deliver justice in time? Is it not a matter of utmost concern for all of us that encounter killings is being glorified as people believe that the legal system has been designed in such a manner that it ensures that rapists and gang rapists are not hanged for many decades?

Why is it that Arvind Kejriwal who is Chief Minister of Delhi while expressing concern over people’s loss of faith in the criminal justice system  openly says that, “People across the country are agitated over reports of horrible rape and murder incidents happening across the country that have come to light of late – whether it is Hyderabad or Unnao [where a rape victim was burnt earlier this week]. That’s a reason why people are expressing happiness and satisfaction over the police encounter in Hyderabad?” Why Kejriwal further says that, “It is also something to be worried about, the way people have lost their faith in the criminal justice system. This demands introspection and all governments must come forward and work together strengthening the criminal justice system and investigating agencies?” We all must seriously introspect on this!

Why is it that even after the killers of Nirbhaya who had been convicted by the Supreme Court and even after five years of death penalty being convicted by the Delhi High Court have not been hanged top death till now? Why their mercy petition keeps hanging? Is this the real beauty of our judicial system for which we should feel proud?

Why even Supreme Court does not say anything on it? Why even in terror cases like the killing of former PM late Rajiv Gandhi, killing of former Punjab Chief Minister Beant Singh, mercy petition keeps pending for decades? Should we be proud of this and justify it in the name of “due process”?

The Vice President M Venkaiah Naidu very rightly said that,  “What happens even after punishment is given to convicts. We all are witness… appeal, mercy (petition)… can anybody think of having mercy on such people? This kind of violation of dignity of women cannot go on unchallenged. What is required is not a new bill; what is required is political will, administrative skill and then change of mindset and then go for the kill of the social evil.” He also rightly said that minors who know how to rape should not be given any benefit and must be punished just like others! Rightly so!

Why should a definite time not be set for completing rape cases? Why should a definite time not be set for deciding rape cases in lower courts, High Court as well as the Supreme Court also? Why should review petition not be abolished or at least time limit set for deciding it?

Why should mercy petition for heinous crimes like gang rapes and terror cases not be abolished or at least a time limit be set up for deciding it? Why Centre repeatedly ignores such demand made by prominent persons in this regard? Whose interest is served in doing so? Should we be proud of it? Why is it that it takes decades or many years to decide a mercy petition? Why can’t it be decided within few days as pointed out by former Attorney General Soli J Sorabjee?

It is good to note that even our President Ram Nath Kovind rightly pointed out that incidents of demonic attacks on women have shaken the conscience of the country. He rightly said that women safety is a very serious issue and a lot of work has been done on this but much remains to be done. He also advocated that those convicted under the POCSO Act should be deprived of their right to mercy petition as they do not need any such right. Here I would beg to differ with the President most humbly and add that there should be no discrimination of POCSO and others and all the rapists and all the terrorists deserve no mercy petition under any circumstances and even if it is still not abolished it must be decided within a short span of time say a few days or weeks and not in many decades which only gives a potential tool to our adversaries to take potshots at the manner in which anyone can get away even after killing the former PM of India as we saw in case of late Rajiv Gandhi where mercy petition was not decided even after decades!

Why can’t strict and speedy justice be provided to people? Why should the 45% of lawmakers who have been elected to Parliament and who are facing themselves serious charges of rape and murder not be debarred permanently from entering politics until their name is cleared of all charges by the top court itself? Why no law has been enacted in this regard?

Why do we expect that such lawmakers who are themselves facing rape charges will support laws that mandates compulsory death penalty for all rape and terror cases? Are we not foolish? What they will favour is that just a single rapist like the poor Dhananjoy Chatterjee is hanged on the basis of circumstantial evidence alone once in 15 years and no rapists or gang rapists are hanged all these years even after they set the victim ablaze!

They will advise us that law will take its own course! They will advise us to be patient and have faith in India’s judicial system! It is high time and now the Supreme Court too must speak out most strongly against all the inadequacies in our criminal justice system due to which people’s faith in it is getting steadily dwindled as is being pointed out repeatedly in different newschannels, different newspapers and different magazines which is certainly not a healthy sign for a democratic country like India! Parliament too must seriously debate on it and should give this most sensitive issue of woman’s safety and of according nothing but death penalty to those perpetrate the most horrifying crime against women  the topmost priority instead of just debating trivial issues like that of onion or tomato or radish! Let’s hope so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.