Millennium Post

Reassess crime, also punishment

The unprecedented decision by the Supreme Court to entertain a writ petition challenging the presidential pardon granted by former premier Pratibha Patil in four cases of rape and murder forces us to rethink the gravity of the crimes committed in all these cases. Patil had commuted the death sentence in 35 such instances, out of which five pertained to brutal child rape. Hence, as the petition has claimed, any advice by the government and consequent pardon were ‘vitiated by malice in fact and malice in law,’ and therefore, a relook at whether these amount to the rarest of rare cases that merited death penalty would not be inappropriate.  In fact, the petition compels us to reexamine the brutality of the crimes, that involved rape and murder of three minor girls and beheading of one boy, and the apex court is right to set aside the presidential clemency that did not take into account the circumstances of the crimes. Hence the decision by the bench, compr ising the CJI P Sathasivam and justices Ranjana Desai and Ranjan Gogoi, has taken a bold step in agreeing to reevaluate even a presidential clemency, constitutionally supreme an order, until now. Moreover, once again the spotlight has been cast on what can be deemed the ‘rarest of rare’ crime to merit capital punishment under the Indian Penal Code. As the petitioner has rightly pointed out, the death sentence awarded by the apex court was required to be re-instituted by exercising its power of judicial review of the decision made by the then president under Article 72 of the Constitution.

Nevertheless, the focus once again shifts to the concept of rarest of rare, and the latest SC notice to the Centre, preceded by death penalty awarded to four of the six accused in the 16 December Delhi gang rape case (one died in custody, the other was given three years rigorous imprisonment under Juvenile Justice Act), are spectacular cases to debate the merit of the argument. The idea was framed in a Supreme Court ruling of 1980 on the constitutionality of the IPC section on murder, which granted either the death penalty or life imprisonment as punishment for the crime. Until there is a consensus on the ethicality of death penalty itself, whether it should continue or be abolished altogether, the rarest of rare clause is the only method to ascertain the severity of a crime, and the extent of brutality involved in executing it. The choice of sentencing, nevertheless, cannot be simply judged on the basis of conviction, but whether the crime was exemplarily barbaric and torturous. Since the four cases that the petitioner has singled out do involve extreme instances of brutality against children, the decision by the Supreme Court can set a precedent indeed and go a long way in discouraging sexual and other forms of exploitation of children and minors.
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