The question of gender: why are there more men who receive capital punishment than women? Women have been convicted of capital crimes in post-independence India in large numbers; nevertheless, no one has been executed because of their gender. Here is a depiction of discrimination in the real-life execution of the death penalty, or in other words the reality… Read More »

The question of gender: why are there more men who receive capital punishment than women? Women have been convicted of capital crimes in post-independence India in large numbers; nevertheless, no one has been executed because of their gender. Here is a depiction of discrimination in the real-life execution of the death penalty, or in other words the reality that the State has inadvertently contradicted equality before the law based on sexual orientation.

Continuing with a faulty notion that awards punishment unevenly and excludes a certain group of people from its application casts doubt on the fundamental foundations of a legal system while also instilling feelings of unease and mistrust in the minds of the general public.

As the facts and figures supporting the idea are evaluated, the article will examine the extra-legal reasons responsible for the judiciary’s mainly patriarchal and paternalistic attitude, and ultimately demonstrate why gender prejudice should also be a reason for the elimination of the death sentence. Articles from 2004 to 2005 are included in this one. It begins with an update on discussions concerning gender prejudice and disparities in the death sentence system.

It seems that under the death sentence system, female criminals have always been handled differently than male offenders, sometimes for reasons that are readily justified, but far too frequently because of sex prejudice… It’s time for the next part of this article to look at the capital penalty laws’ aggravating and migrating circumstances. We’ll find out which women have been executed and which women have had their death sentences overturned.

Introduction

A convicted killer could be enjoying his final supper or making his way slowly towards the execution chamber after being sentenced to death. Did you picture a lady in your mind’s eye when you first saw this horrible creature?[1] Men make up 90% of people that are executed, therefore most of us don’t.

Because female criminals, such as girls and women, are so rare on death row, they may be forgotten about after they are convicted and sent to prison. Death penalty jurisdictions should review their policies and reduce sex-based inequalities by using realistic measures, which have been recognized.

Not only is the execution or death punishment of a woman uncommon, but it is also abnormal.[2] Deliberate execution of women, even those found guilty of the most horrific crimes, is culturally taboo and goes against the criminal law principle of equal treatment in all circumstances. Many people wonder whether there is a bias towards female killers since they are so uncommon on death row and are an exception in terms of culture.

Mitigating factors make executing a person less probable. Their presence serves as a testament to the offense’s seriousness and the defendant’s character traits. The fact that the criminal behaved in conditions where the death sentence is less likely to be inflicted is a fairly frequent mitigating factor. The murder was committed under duress or when the victim was unstable emotionally.

As far as I can tell, this demonstrates that it is often very tough. For a fact, judges and juries are more likely to discover evidence of duress or mental distress in female perpetrators of murder than in male offenders in such instances. Most female criminal offenders have a greater capacity to convey their emotional side than male criminals, giving the defense counsel an advantage in demonstrating this mitigating situation even in a first examination.

Literature Review

It’s important to look at the connection between gender and crime and punishment to understand why the death sentence is useless from a feminist perspective. While exact figures are difficult to get, we believe that over a hundred women have been executed in the past decade, with much more likely to be in prison or on death row.[3] This report’s goal is to bring attention to this underserved group.

Studies on women on death row are rare because few researchers have tried to discover more about the crimes for which they were convicted and why they were condemned to death, as well as their life previous to their arrest and detention. Consequently, the empirical data on women on death row is scarce, making it difficult for advocates to understand trends in capital sentencing and how gender bias impacts the criminal justice system… Researchers concluded that women on death row had benefited from gender prejudice.

Since India’s independence, there have been 755 executions throughout the nation. With the most recent executions, the unofficial death toll from the Nirbhaya Rape Case now stands at 759. Death warrants were pending for 373 inmates (excluding those in Tamil Nadu State) at the time of the research, and for 12 of those inmates, death sentences had already been handed out.

Indian criminal law is based on ideas of punishment that combine deterrence with reformation. Even though the penalties are enforced to establish deterrence among the offenders, the offenders should be given a chance to change. When a death sentence is handed down, the courts must record the specific reasons they used to make the decision.[4] Several legislative Acts, such as the Indian Penal Code, 1860, provide death punishment as a penalty.

Eleven crimes are punishable by death under the IPC. Among other things, if you are found guilty of murder, abetment of suicide by a minor or insane person, dacoity with murder, or a similar crime, you could be sentenced under the Army Act of 1950, the Air Force Act of 1950, the Navy Act of 1956, the Commission of Sati (Prevention) Act of 1987 and the Narcotics Drugs and Psychotropic Substances (Amendment) Act of 1988, or the Scheduled Castes and Scheduled Tribes.

If a death sentence is appropriate, the court has the authority to inflict it. The issue of judicial independence is now being discussed in Congress. Over the past 25 years, the Supreme Court has dithered and issued different decisions on issues involving the death sentence.

In the instance of Mohd. Chaman,[5] the court noted that uniformity is almost impossible in the area of judicial discretion. To begin, there’s no way to quantify someone’s level of guilt. Second, criminal cases cannot be classified since there are endless, unexpected, and unforeseeable variations. As a result of this classification, the punishment process will no longer be judicial. Lastly, such uniformity or discretion in sentencing is a policy issue that belongs to the legislature and is separate from the court’s responsibilities.

Death sentences are now uncommon rather than the rule after the 1973 amendments to the Criminal Procedure Code. Because of this, according to Article 354(3) of the Cr.P.C., the death penalty is only used in exceptional circumstances. Although the Supreme Court of India upheld the constitutionality of the death penalty in India in Bachan Singh v. the State of Punjab, May 1980, a five-judge bench of the court also laid down a detailed sentencing framework, requiring sentencing judges to impose the punishment only in the “rarest of rare” circumstances.

In the Bachan Singh case, courts must establish the “rarest of rare” concept to weigh aggravating and mitigating factors when deciding whether the death penalty is a suitable punishment. In 1983, three years after Bachan Singh v. State of Punjab[6], another important Supreme Court decision expanded on the “rarest of rare” framework and tried to investigate the concept of “rarest of rare.” The case was Machhi Singh v. State of Punjab[7].

The principles of sentencing policy proposed by the Supreme Court were replaced and reemphasized in the Bachan Singh case. The Court stated the two questions that needed to be addressed before imposing the death penalty on specific instances. Was the act committed so heinous that there was no other way to punish it?

The second question is, even if the mitigating circumstances are given credit, do these facts justify the use of lethal injection? Before deciding between a death sentence and a life sentence, judges must create a balance sheet that weighs aggravating and mitigating aspects of the crime and the offender.

The Supreme Court, on the other hand, ruled that the death penalty may be applied in cases when the public’s collective conscience is outraged and expect the courts to impose the death penalty. As a result, it went on to identify five situations in which the death penalty is appropriate.

The method through which the offense was carried out

  1. The motive behind the criminal act: Murder committed for an objective or purpose that reveals total depravity and meanness; It is a crime of extreme severity when a murder is carried out in an egregiously gruesome, grotesque, diabolical, revolting, or drastic manner, which causes the community to react violently and angrily.
  2. The motive behind the criminal act: Murder committed for an objective or purpose that reveals total depravity and meanness.
  3. The nature of the crime: a murder that provokes social outrage.
  4. The gravity of the crime: Numerous murders of a family or multiple members of a specific caste, community, or region; and
  5. The victim’s status

Mourning an innocent child, a helpless woman, or an elderly or infirm person; the murder of a person by the murderer who is in a position of suppression or reliance, or the murder of a public figure generally adored and respected by the community for the services he has provided, and the murder is committed for political or homogenous reasons other than personal ones.

It emphasized the “criminal elements” and used a “crime-centric approach” to the death penalty sentencing procedure. To make a death sentence more common, the Bachan Singh decision required that it be used only in cases when life in prison is foreseen. As a result of this precedent and following lines of cases, the justification of the death penalty based on the manner, type, and severity of the crime had been allowed to be exercised without taking into consideration the circumstances of the criminal.

The Supreme Court of India condemned Renuka Shinde and Seema Gavit[8] to death in 2006 for the killings of many children in the 1990s. The appellants were sentenced to death for crimes covered by Section 302 read in conjunction with Section 120B of the Indian Penal Code. Their request for clemency was turned down eight years later, in 2014. Given that the two women were originally condemned to death in 2001, the problem of excessive delay is apparent. We need to look at how gender affects crime and punishment for women on death row to better understand why the death penalty does not work from a gender justice perspective.

Shabnam and Salim were found guilty in 2008 of the murders of seven members of Shabnam’s family in the Amroha murder case[9]. A 10-month-old infant was strangled as part of the incident. The terrible crimes were the consequence of an illicit love affair that was both planned and carried out. According to court records, both defendants were found guilty and condemned to death in July of 2010 by the Sessions Court. The death sentence was affirmed by the Supreme Court on the same day, on May 15, 2015.

The prisoners’ death warrants were issued within six days. The Supreme Court decided on May 27, 2015, that the arrest warrants were unconstitutional since the offenders had not exhausted all legal options. Death warrants are issued under certain criteria, and this judgment was important because it defined those guidelines.

In 2015 and 2020, India’s Supreme Court affirmed the death sentence, and in 2016, then President Pranab Mukherjee rejected her request for mercy. Shabnam and Salim’s review judgment is still waiting. Shabnam would be the first woman to be killed in India since 1955 if she is found guilty and put to death.

It’s too soon to make any predictions about the verdict. The “nature of the crime” has obviously played a major part in determining sentence allocation since all three courts have reaffirmed the death penalty. The fact that this sentence was handed down indicates that it is founded on a one-eyed justice concept that cannot comprehend the idea that society as a whole bears some of the blame for the crime.

Shinde–Gavit and Shabnam–Salim both cases demonstrate the structural links between societal attitudes toward women and their criminal behavior.

In the State of Himachal Pradesh v. Nirmala Devi[10], the Supreme Court had to decide on the sentence for a woman who had been convicted of several crimes, including robbery and attempted murder. There were three young children in the home of the 40-year-old woman. Women offenders must be punished equally with males, according to Justice Sikri, who noted that gender was not always a mitigating factor on a worldwide basis.

When it came to this case, the Supreme Court affirmed the lower court’s two-year sentence because of the accused’s responsibilities as a mother. He continued by saying that rather than using a general rule, assessing gender as an extenuating factor should be done on an individual basis. Compassion goes out the window when a lady is a terrorist group member. This approach, although logical, ignores the reality that the non-application of the death sentence to women in post-independence India has revealed the apparent gender bias in not treating male and female offenders equally.

The case of Ediga Anamma v. State of Andhra Pradesh[11] is another example of the Supreme Court showcasing unwarranted mercy to a female offender. Justice V.R. Krishna Iyer of the Supreme Court gave the judgment to reduce the young woman’s death sentence to life in prison. victim and kid were hacked to death by the suspect using a chisel blade. Although courts are faced with a difficult decision, Judge stressed the absence of “complete provisions” and “sufficient equipment for gathering and presenting the perpetrator’s social or personal data to the degree needed in the judgment of the punishment.”

Mitigating circumstances examined by the court in this instance included: a mother who was only twenty-four years old, had never had intercourse, and lived with her sole kid, who was then ten years old. The authors believe the court erred by failing to consider an essential issue. A cold-blooded double homicide motivated by jealousy was committed.

Including a little kid and his mother as victims should have been enough to convince the court to inflict a death sentence on the defendant. A majority of these instances result in the death sentence not being applied to women delinquents because of the deep-seated sentiments of protectionism and paternalism that govern the minds of the judges.

Anti-abolitionist and pathological explanations ignore and eliminate gender and crime connections as fundamentally social issues. It’s difficult to separate the criminal from the crime because of the social influences on criminal purpose and execution that go hand in hand. We need to stop looking at crimes as “special” and start seeing them as part of everyday life, with gender playing an important role.

Conclusion

The effort to explain why women are killed at a disproportionately low rate and to explain the consequences of death punishment for women. By examining records from 1973 to the present, statistics on women on death row were discovered to have a similar issue to men’s. The research found a significant correlation between the abolition of death punishment and women’s legislative participation after looking at capital punishment legislation in 125 nations.

After a new discussion regarding gender bias and inequality in the death sentence system began in 2005, this study continued through 2007. Using a sex bias study, we can look at the death penalty from a new angle. There’s also an emphasis on how the gender of the murder victim affects death row inmate choices and death row inmate sentences. The research was undertaken to see whether similar disparities exist in Japan, a country that uses the death sentence.

U.S. women supported capital punishment at a lower rate than U.S. males. Infringement of equal protection rights due to sexism in the application of the death sentence. Abolition of the death penalty was a joint effort in the late 1800s and the early 1900s. There are gender biases in state capital laws when it comes to women’s interest in the death penalty and the law, according to a study. Since executions began in 1977, just one woman has been put to death.

Evidence for a “Female victim effect” is reviewed in the article. It examines several instances involving men and women and compares them. Studies have shown that gender and culture have an impact on death punishment. In the rarest of circumstances, the guilty individual may face a death sentence. Under Article 21 of the Indian constitution, a person’s life or liberty cannot be taken away from him unless in accordance with a legal process. As many as 140 nations have now renounced the death penalty.


[1] Rare and inconsistent: the death penalty for women, Available here

[2] A Critical Study on Capital Punishment and Women, Available here

[3] Global review of women facing the death penalty, Available here

[4] Death Sentence in India – IPC – Death penalty, Available here

[5] Mohd. Chaman v. The State on 24 April 1998 CriLJ 3739

[6] Bachan Singh vs the State Of Punjab, AIR 1980 SC 898

[7] Machhi Singh And Others v. the State Of Punjab on 20 July 1983, AIR 957, 1983 SCR (3) 413

[8] Renuka Bai and Ors. v. State of Maharashtra, AIR 2006 SC 305

[9] Shabnam v. Union Of India And Anr on 27 May 2015, SCC OnLine SC 484

[10] State of Himachal Pradesh v. Nirmala Devi AIR 2017 SC 1981, Para. 21-22

[11] Ediga Anamma v. State of Andhra Pradesh AIR 1974 SC 799

[12]Determinants of the Death Penalty: A Comparative Study of the World, Available here


  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Updated On 2022-02-01T11:02:05+05:30
Anuska Das

Anuska Das

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