The Death Penalty is Biassed Towards Women

The majority of women are sentenced to death for murder, generally for the murder of family members and in the context of gender-based abuse. Ladies who are tried and executed face a variety of sorts of gender bias, with women who are perceived to be violating specific gender standards being more likely to be convicted death. Existing disparities and biases, especially those based on gender, are exacerbated by capital proceedings.

Gender-based violence and acute socio-economic distress have disproportionately affected the majority of women who enter prison. They experience discrimination based on ‘sexist stereotypes, humiliation, damaging and oppressive social practices, and gender-based aggression,’ which, according to the United Nations Commission of the High Commissioner for Human Rights, ‘affect women’s capacity to seek fair trials on an equal footing with men.

Execution of the Death Penalty in Real Life

In independent India, there have been few studies on the death sentence and its execution. Only serious offences are subject to the death penalty under our judicial system. Involving murder, inciting a civil war against the government, acts of terrorism, and inciting a civil war.

When it comes to capital punishment convictions for women in post-independence India, the number is high, but execution of the death penalty on women is rare. Women are frequently convicted of capital crimes in post-independence India, yet the death penalty is rarely carried out on them. This depicts prejudice in the implementation of capital punishment, or, to put it another way, the fact that the state has unintentionally denied equality before the law on the basis of sex. The continuation of such a defective concept not only calls into question the very foundations of a legal system, but also instils feelings of unease and mistrust among the general population.

The overwhelming majority of women facing death row are poor, which has a direct impact on the quality of their legal support. The strongest defence against a capital charge is a well-trained and prepared lawyer, yet most women facing the death penalty cannot afford one and must rely on overburdened legal assistance. Family desertion is widespread among women who commit violent crimes, further limiting women’s access to financial resources for competent legal representation or, in justice systems where financial restitution can result in a sentence reduction, economic resources to recompense a victim’s family.

The vast majority of scholars, on the other hand, have concentrated their research on male inmates facing the death penalty, sometimes known as capital punishment. This article looks at data on women on death row since 1973, with a focus on similar issues that have been documented for men, and highlights ethnic differences and/or inequities when they are identified. The women studied were 157 women who had been sentenced to death, 49 women who are currently on death row, and eleven women who had been executed since 1973. The research revealed that there are some racial differences in the number of women sentenced to death row. Due to the limited number of females who get the death penalty, definitive findings regarding why these differences exist are speculative.

Nevertheless, multiple research studies have revealed that defendants facing the death penalty get inadequate legal representation.  The fairness of the capital punishment is undoubtedly harmed by the bias of key decision makers in the judicial system, such as prosecutors, juries, and judges. The results of this investigation are not without flaws. The small number of females sentenced to death, currently on death row, and executed.

Before researchers can make definitive inferences about racial discrepancies, future study on this topic will need to look into all capital sentencing trials for women in more depth.

Since 1955, no woman has been hung in India by the legal system. Shabnam Ali, a 38-year-old Indian woman on death sentence, has sparked a debate about the effectiveness of death penalty.

One of the rights guaranteed to every citizen in India is that the state shall not refuse any person within the territory of India equality before the law or equal protection under the law. This depicts prejudice in the actual implementation of capital punishment, or, to put it another way, the reality that the state has unintentionally denied equality before the law on the basis of gender. When we discuss capital punishment, we must overlook its irreversible and devastating consequences.

One of the most well-known and recent studies on the capital punishment was conducted by the National Law University of Delhi, however that study, while used in this report, is limited in scope because it only looks at data from death row offenders between July 2013 and January 2015. According to the study, there were 4 per cent of female inmates on death row during the period of determination. The proportion of women on death row awaiting execution shows a low percentage, but it is limited by the fact that it only reflects the number during the research period, not the amount of females convicted or executed since freedom. Regardless of logistics, the unofficial truth is that in independent India, no woman has ever been killed by the death penalty. According to the report, there is no official position on the subject. With the most current executions of the Nirbhaya Rape case offenders, the unofficial total now stands at 759.9. According to the research, there were 373 people on death row at the time of their investigation (excluding Tamil Nadu), with 12 of them being women. For each of them, warrants were issued. As an alternative, life imprisonment must be the rule, with the death penalty as an exception. Capital punishment should only be granted as an exception, with particular reasons recorded in the ruling.

Case Laws

• In the landmark case of Bachan Singh v. State of Punjab AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145, the Supreme Court established rigorous guidelines and stated that the capital punishment should only be applied in the rarest of circumstances. In its 262^nd report, India’s Law Commission suggested that the death sentence be abolished as soon as possible, with the exception of terrorism and committing genocide against the country. The data certainly shows that deliberate attempts have been taken to eliminate discretion in the application of the death penalty. It does, however, have a place in the country’s statute books. Except for Section 416 of the Criminal Procedure Code, which directs but does not require the High Court to commute a woman’s death sentence to life imprisonment if she is found pregnant, no other provision grants such leniency to women on death row for whatever reason.

• The justifications offered by justices to explain such a liberal attitude towards women demonstrate the rational basis behind such a heavy bias, as well as the reality that the nation’s national death sentence system has a fundamental weakness. The trial in S.Nalini vs. State of Tamil Nadu AIR 1995 SCC 253 who was initially condemned to death for her role in the killing of the country’s then-Prime Minister, Mr. Rajiv Gandhi, is one of the most contentious. In 1999, the Courts Have upheld her capital punishment, but the three-judge panel was split on the issue. Justice K.T. Thomas, writing for the minority, considered a number of mitigating considerations in Nalini’s favour. While debating whether the death penalty would be the best punishment for her in a normal situation, light was shone on her statement. According to the knowledgeable judge. Moreover, based solely on the fact even though she was a member of the weaker sex and was powerless, the Judge ruled that she could not withdraw once the conspiracy had begun.
• Her status as a mother was also taken into consideration. Because the child’s father had already been sentenced to death, a commuting of her sentence would prevent the kid from becoming an orphan. These and other criteria, in his judgement, disqualified Nalini’s case from being classified as the rarest of the rare. Furthermore, it’s worth noting that the first line of the paragraph in which he describes Nalini’s sentence mentions that she was an aged and educated woman. Why capital punishment needs to be Gender – Neutral? Because she was fully aware of her activities, we believe her educational qualification should have been deemed an aggravating element rather than a mitigating factor. It’s difficult to comprehend why she couldn’t see the consequences of this scheme. A similar analysis of mitigating factors was not carried out for any of the other male co-accused who received the death penalty. Both other two judges disagreed with their brother judge’s rationale and affirmed her death sentence. Sonia Gandhi’s intervention later in 2000 forced the Tamil Nadu government to modify her punishment to life imprisonment.

• Another case in which the Supreme Court showed unjustified mercy to a lady. Ediga Anamma v. State of Andhra Pradesh [AIR 1974 SC 799]Justice V.R. Krishna Iyer delivered the Supreme Court verdict in which the young woman’s death sentence was converted to life imprisonment. The decision highlights the deep-seated feelings of protectionism and paternalism that pervade the judiciary’s thinking, which nearly always results in women punks being excused from punishment. The Highest Court has said unequivocally that special measures favouring women will not be barred under Article 15(1) unless they discriminatory purely on the basis of gender. This highlights the veil of pity that the court system tends to wear when dealing with female convicted murderers.

Conclusion

There’s never been a single female executed in India, despite the fact that the situation is harsh. Also, when there is no explicit discrimination in any statute imposing the death penalty for a specific crime, there must be no bias in the implementation. It is pointless arguing that there is any cause for such a state of affairs.

It is also critical to justify the challenge by including the component of socially imposed gendered discrimination, which will condemn the strewn wreckage of an almost vanished practise even more. Whenever a group of individuals is purposefully excluded out of the enforcement of punishment, the continuation of such a defective concept not only calls into question the basic foundations of our legal system, but also instils feelings of unease and distrust among many of the public at large. The level of sympathy that a woman offender receives is determined on her obedience or violation of such laws. This idea argues that an awful woman’ should be hanged not only because she breaches gender stereotypes, but also because she shares the same characteristics as a male convicted killer.

References

1. Rapaport, Elizabeth. “The Death Penalty and Gender Discrimination.” Law & Society Review 25, no. 2 (1991): 367–83. https://doi.org/10.2307/3053803
2. Kumar, Ranjan , and Amitamshu Saxena. “Gender Bias in Execution of Death Penalty in Post-Independence India: A Reason for Abolition .” https://www.researchgate.net/publication/350783162_Gender_Bias_in_Execution_of_Death_Penalty_in_Post-Independence_India_A_Reason_for_Abolition. 1 Apr. 2021. Dx.doi.org/10.1732/IJLMH.26502.

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Author: Aastha Prakash