India gang-rape sentencing: the death penalty explained
In the last decade India has executed only three of its estimated 477 death row prisoners.
An unofficial eight year moratorium came to an end last year when the first of two executions took place, Mohammad Ajmal Amir Kasab - convicted of involvement in the 2008 Mumbai gun attack.
The second, in February 2013, Muhammad Afzal - convicted of plotting the 2001 attack on India’s Parliament. The quick succession of the two executions, coupled with the Supreme Court’s ruling in regards to capital punishment earlier this year, has raised the awareness of controversy surrounding India’s penal system.
Capital Punishment has been part of Indian law since the colonial era, officially 1860. At present the hading down of a death sentence rests entirely on the judges’ discretion. Trial by jury was abolished in 1962.
The 1973 Code of Criminal Procedure states that those sentenced to death should be hung until dead. (Previous methods have included being crushed by an elephant, impaling and being shot from a cannon.) In 1983 the Supreme Court rather ambiguously ruled that the death penalty should only ever be applied in ‘the rarest of rare cases’. At the same time the court overruled the challenge to means of execution on the grounds that hanging did not involve torture, barbarity, humiliation or degradation.
Spring of 2013 saw the most recent of amendments when rape resulting in death or a permanent vegetative state of the victim was introduced. Other crimes that are punishable by death include murder, terrorism, treason, and espionage. Those people under eighteen at the time of the crime, pregnant women and people deemed mentally retarded or ill are excluded from receiving the death sentence.
Before a prisoner can be executed the sentence has to be confirmed by India’s High Court. Convicts are allowed to appeal both sentence and conviction. Those tried first tried in a lower court may appeal to the High Court and those tried in the High Court may appeal to the Supreme Court. Once all appeals have been exhausted death row prisoners can submit a final appeal for clemency, known as a mercy plea, to India’s president. Such pleas can be granted by the State Governor and the President of India, resulting in suspension, pardon, or commutation of death sentences.
In the reverse, the state is allowed to call for a harsher sentence. Requests for the death sentence, when it has not been previously handed down, can be submitted to the High Court.
The length of time spent waiting on death row, as well as the number of people actually executed annually, has raised arguments about the use of the death sentence as a punishment. Many prisoners can spend more than a decade waiting either for their sentence to be confirmed or for a decision on their mercy plea. Lawyers have used this as an argument against the death sentence stating that it is unfair and illegal for prisoners to be kept waiting to die for so long. The sentence was death and not life in prison. Similarly the Indian penal code technically allows any prisoner waiting more than five years to contest their sentence.
In 2012 Indian courts suffered from two noteworthy embarrassments. Fourteen retired Judges asked for thirteen cases of the death penalty to be commuted after admitting the original sentence was handed down per incuriam (out of error or ignorance). In the same year it was revealed that president Pratibha Patil had, during the course of her five-year term, commuted the sentence of a rapist who had died five years previously.
The Asian Centre for Human Rights recently completed a study on India’s Capital Punishment calling into question the application of ‘rarest of the rare’. They found that between 2001 and 2011 1, 455 convicts were sentenced to death, an average of one less than every third day.
Capital Punishment is currently practiced in 58 countries, including USA, Japan, Belarus, Cuba, and Singapore. As of 2012 there are 97 abolitionist states. According to Amnesty International the worst offenders in 2012 were China (1000+ deaths), Iran (314+) and Iraq (129+). The organisation confirmed 1, 722 death sentences and 682 executions (excluding China) in 2012.
Some of the current more popular means of execution are electrocution, lethal injection and hanging. Stoning is common practice in the Middle East. Saudi Arabia decapitated four men as recently as 2007.
In the past more unusual methods have been used. Boiling, legalised by Henry VIII; although Uzbekistan boiled two political dissidents in 2002. Being hung, drawn and quartered was the penalty for high treason in England. Immurement, being locked and left within an enclosed space, was used across Europe and Asia. Dismemberment, usually by being attached to objects moving in opposite directions, was common throughout the Middle Ages, as was disembowelment.