'Even if law changes, Delhi rapists CAN'T be hanged'

The accused in the Delhi gangrape case will have to be prosecuted and punished under the existing laws, experts tell Vicky Nanjappa

Should a convicted rapist be awarded the death penalty? This debate is raging across the nation in the wake of the horrific gangrape of a 23-year-old girl in Delhi last Sunday.

Several legal experts pointed out that even if the government decided to amend Section 376 of the Indian Penal Code to make the offence of rape punishable by death, the rapists in the Delhi case cannot be hanged. .

An amendment to a criminal law cannot be made applicable with a retrospective effect and the accused in the Delhi gangrape case can only be punished under the existing laws. Under Section 376 of the IPC, the punishment for rape ranges between seven years in jail to life imprisonment.

Karnataka State Public Prosecutor H S Chandramouli: Under the existing laws, there is no provision for a death penalty for a rape case unless the victim is killed. I would support the decision of including the death penalty clause in a rape case. The same logic that is applied in the case of a death sentence should be applied here -- it has to be a rarest of rare case.

It would not be very difficult for the prosecution to establish that a case of rape falls under rarest of rare cases. While dealing with a case in which the death sentence is being sought, the courts check if the action was committed on the spur of the moment or if it was pre-planned. In at least 90 per cent of rape cases, the offence is pre-meditated or planned in advance. There are only a few cases when it happens on the spur of the moment.

C V Nagesh, senior criminal lawyer: It is not for the legislature to decide which is a rarest of rare case. It is for the courts to decide that. The death sentence is not a commodity that is available in the market. Take the case of 26/11 terrorist Ajmal Kasab who brutally murdered people during the terror strike. He received a fair and complete trial before any conclusion was reached. Let the law take it due course before we decide on the penalty for these rapists. The basic principle of jurisprudence is that everyone is innocent until proven guilty.

I am not for a moment trying to support the acts of the accused. Instead, what we need to ask for is a prosecution with better morality and cases that are fast-tracked. As far as the sentencing is concerned, I would say that life sentence is good enough, but without the provisions of waiving off part of their sentences or any possibility of parole.

Normally, a life sentence is considered served once a prisoner completes 14 years behind bars, as the state then has the power to waive off the remaining period. The courts must mention that life imprisonment here will mean the convict will spend the rest of his life in jail. This case has to become a precedent and there should be no pardon for these rapists.

While I completely agree that the gangrape case in Delhi was gruesome, I feel that the legislature should be careful while enhancing sentences. Not all rape cases are genuine ones. There have been cases where a person has been accused of rape for personal reasons. I have known of cases where rape has been used in cases of prostitution in order to extort money. So a line needs to be drawn in such cases.

Former Supreme Court Judge Justice Santosh Hegde: The severity of the punishment is not necessarily a deterrent. In China, corruption is punishable with death but corruption has not ended there. A severe sentence is the need of the hour but fast tracking of the case is more important. What we need is a public debate and not an emotional outburst.

The point we need to understand is that whatever law the authorities make, it will not apply to the accused in the Delhi gangrape case. A criminal law cannot be applied with a retrospective effect. The law which was existent on the day of the offence is the law that they will be tried and punished under.

If the prosecution has to apply a new law with a retrospective affect, then it is not enough if the penal provisions change. There needs to be an amendment to the Constitution as well which would make criminal jurisprudence applicable with a retrospective affect.