Death Row Convicts: Whose right is to punish?

The Supreme Court has admitted the government’s plea to issue “victim and society centric” guidelines to prevent delay in the execution of death row convicts. But, it is not for consideration of any plea to alter judgements that have been pronounced or the existing rights of convicts. The case pertains to the gruesome rape and murder of “Nirbhaya” in 2012 in a moving bus in the nation’s capital city, Delhi.
The ground for fresh guidelines is the possibility of legal use of existing norms to protect the condemned convicts by delaying execution. These norms framed in 2014 were said to be “accused-centric”. Under Delhi Prison Rules, if an appeal or an application is made by even one convict only in a group crime, execution of the sentence has to be postponed in the case of co-convicts.
The Delhi Court postponed the hanging of all the four convicts as they filed mercy petitions one after another. Until they exhaust all legal options to reduce the sentence, execution cannot take place.
The government rushed to the High Court challenging this order for postponement of hanging of the convicts and pleaded for an urgent hearing. The Solicitor-General is reported to have remarked that the four convicts had taken the judicial process for a “joy ride” and acting in tandem to delay their execution. He based his argument on the gravity of the crime that shocked the entire nation and the anxiety of the people waiting for justice.
In a number of cases in the past, such delay had extended for years and had been used as a strong ground for reducing the punishment. To make a convict live in jail for many years waiting to be hanged is rank injustice. Pertinently, no time limit is fixed for disposal of mercy petitions submitted to the President. The High Court sought the response of the four convicts and Tihar jail authorities.
The Solicitor-General is also of the view that the four can be hanged separately – one by one. The government approached the court again to remove the stay order on the execution of the four convicts asserting that the credibility of the court and its ability to execute sentences were at stake. It was argued that filing of mercy petitions by the convicts one after another was a “deliberate, calculated, well-thought out design to frustrate the mandate of the law”.
Repeated postponement of execution of the convicts has created a big uproar and vociferous protest from the public and in particular from the family of the rape victim in this case.
A vital issue that has arisen in this phase is the right of the victim and victim’s family in a criminal case to influence the punishment of the offender – meaning – to have a say on the question of punishment.
Frustrated victims if they are alive and their family have in many cases genuine grievances about State’s failure to decide cases and execute punishments expeditiously. Speed is a casualty in court cases and death penalty cases in particular undergo enormous procedural delay. It is understandable that all avenues of justice should be open to convicts and miscarriage of justice cannot be allowed in hanging cases.
In assessing the physical and moral seriousness of a crime, the direct impact on the victim and indirect impact on victim’s family and others are very important data. Therefore, the victim’s say on sentencing seems to matter a great deal. However, it cannot be the deciding factor for the quantum of punishment which has to be decided only by the judge after hearing all sides. The judge alone can decide impartially and not the victims and their lawyers, relatives, friends and supporters who are emotionally affected.
Rape-cum- murder is one of the most heinous crimes and when it is committed in the most cruel manner, it deserves the highest punishment and its quickest execution. In the Nirbhaya case, the loopholes in the law and rules are to the advantage of the offenders that no criminal lawyer would fail to use to his clients’ benefit. Moreover, we are living in the age of human rights and supposed to have more faith in the reform of criminals undergoing punishment than in retribution. The blocks in the way of carrying out the sentences can be removed only legally. Emotions have to be kept under check and cannot be used to sway public opinion or influence judicial verdict.
To a great extent, principles and practices, i.e. law and implementation, are in support of the criminals rather than the victims. In a more recent case of gang rape and murder in Hyderabad, four accused in custody were killed in police encounter. It led to celebrations among the public manifesting public desire for instant justice and loss of faith in the long legal procedure.
“Tears are shed for the accused are traditional and trendy, but has the law none for the victims of crime, the unknown martyrs”, asked Justice V.R.Krishna Iyer drawing attention to the helplessness of victims. Law in India does not give any rights to the victims in criminal cases. The State takes the responsibility to prosecute and punish and takes the victims only as witnesses.
Crime victims often feel cheated and this has happened in Nirbhaya case. Frustrated parents of the victim are clamouring for “justice” as repeated postponement of hanging of the convicts seems to belittle the crime and their agony.
But, the reality is that we are no longer in the state of nature and we do not have a right to punish the guilty however serious the offence. In a civil society, the right to punish vests with the State. The jury system is also abolished in India in 1956 after the Nanavati Case. The State takes the help of the affected in the process in the interest of justice to all. In cases like rape and murder, in addition to the concerned victim’s family, the entire society is affected as it is a crime against the State and society.
Speedy trial and execution of the sentences are matters of rendering justice to the entire society and not to victim’s family. The family’s loss due to the crime has no remedy and cannot be restored. Normally, family members are not likely to be interested in the fate of the convicts unless they are scared of falling victim again to the convicts’ rage when they are released. Execution of the convicts is no compensation for their loss.
Victim’s say the punishment can provide an outlet for releasing the suppressed mental pain and anger and serves as a lesson to all including the criminals to visualize the gravity of the crime. It is necessary for prevention of crimes, but not for punishment of offenders which is a legal issue.
There is need for expediting procedures in criminal cases and execution of sentences as necessary reforms in the judicial system. This is not an issue connected directly with victims. It is a question of crime and punishment to be decided by the State whose right is to punish offenders.



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