TW: Mention of Rape
Recently, the alleged gangrape of a Dalit girl in Hathras district of UP caught everyone’s attention, igniting conversations around the case and the rape culture prevelant in our country. Amidst the cry for justice to the victim and her family, many people also demanded capital punishment for the culprits, and this isn’t the first time we’re hearing the public demanding capital punishments in a rape case. But while rape is an alarmingly prevelant crime in India, is capital punishment really an effective way to curb rape?
Currently, the punishment for rape in India is rigorous imprisonment which is not less than 7 years, and may extend to life imprisonment, and fine. Yet we have also witnessed cases where the State has ordered capital punishment, or death penalty for ‘rarest of rare cases’, like the infamous Nirbhaya case. Capital punishment for rape is currently practiced in 58 countries, and many people advocate for the same in India, but its validity has been questioned several times by lawyers and humanitarians alike, on legal and humanitarian grounds.
There is a conflict among judges regarding practice of Death Penalty, as it is violative of reformative theory which is the base of punishments given in India. The reformative theory believes that the objective of a legal system is to extinct crime and not the criminal, and that nobody is born as a criminal; it is only the consequences of those circumstances which were around him. By this definition, death penalty is not reformative in nature. According to some judges, it also violates Article 19, 20, 21 of Constitution of India. It violates the “right to life” which is guaranteed under article 19. It also violates article 20 (“no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence”) and article 21 (“No person shall be deprived of his life or personal liberty except according to the procedure established by law”). Capital punishment also breaches human rights protected under the Universal Declaration of Human Rights, in particular the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment.
A common argument against these supposed violations is that death penalty in India is only applied to “rarest of the rare cases”, crimes so henius where there is no scope of reform or remedy. But how do we define these cases?
The phrase "rarest of rare case" first appeared in the Supreme Court‟s decision, Machhi Singh v. State of Punjab (1983). The meaning of the phrase is the court while deciding the case in a criminal trial has to see the nature and gravity of the crime to provide the appropriate punishment. This means that “rarest of the rare” cases are not defined by the legislation or the Supreme court.
Generally, the test applied for the doctrine of “Rarest of the Rare” case while awarding the Death sentence to the convict is whether it is the demand of the society to give the death penalty to the accused for peace and maintenance of the society. Pre-planned, brutal, cold-blooded and sordid nature of a crime, without giving any chance to the victim, are generally considered as facts to decide whether a particular case falls under the doctrine of “rarest of rare”.
While this phrase was envisaged to reduce the use of death punishment for the criminals, it was later found that in the period between 2000 and 2012, 1677 death sentences were imposed by Indian courts. The Supreme Court took note of these figures and stated that this number was alarmingly high and appeared to suggest that the death penalty is being applied much more widely than was envisaged. Therefore, regardless of wether capital punishment is desirable or not, the ambiguity of what comes under the purview of capital punishment is a subject of much conflict and scrutiny. Moreover, this ambiguity also leaves room for human bias. Judges can be influenced by their own background, criminal’s background and even the general consensus in the public about the nature of punishment that should be awarded. The weight of the death penalty has been observed to be disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority. This can be explained as a consequence of having limited access to legal representation, for example, or being at greater disadvantage in their experience of the criminal justice system.
Moving beyond the legal aspect, many people oppose death penalty from a moral standpoint. It is argued that death penalty is often applied in an arbitrary and discriminatory manner without affording vital due process rights. The irreversible nature of death penalty leaves no room for retraction. As per Project 39A report on death penalty, released by National Law University, Delhi, between 2000 and 2014 trial courts sentenced 1,810 people to death, more than half of which were commuted to life imprisonment and about a quarter of those, 443, were later pronounced not guilty by the Supreme Court and high courts.
But what if we assume, for the sake of argument that every person being given a death penalty is unequivocaly guilty? The cost of maintaining a prisoner with facilities compatible with human rights for the whole of his life can be very high and the possibility of his escape from the prisoner is increased. And therefore, it is argued that it makes more sense to kill the ‘unreformable’ criminals. Capital punishment for henius crimes like rape is also justified on the grounds that it brings closure to the victim’s family (and frankly, the entire nation). While everyone mourns differently, we can’t deny that capital punishment (“an eye for an eye”) does sound like justice. It validates your anger and feeling of injustice and powerlessness. Yet, what we fail to recognise is that what we seek through capital punishment is for most part ‘vengeance’ not justice. Or in J. V.R. Krishna Iyer’s words, “The special reason (for death penalty) must relate, not to the crime but to the criminal. The crime may be shocking and yet the criminal may not deserve the Death Penalty”.
Another reason for the strong public support for capital punishment is the popular- yet misguided- belief that it will reduce crime. Many governments are quick to promote this erroneous belief even though there is no evidence to support it. Researchers agree, by an overwhelming majority, that the death penalty has no deterrent effect. In Delhi, following the Nirbhaya rape case, the reporting and recording of rape and molestation and sexual harassment cases in Delhi had rather increased by 23-40 percent by 2018, with a 39% increase in the number of rape cases registered in 2013 alone. Though these numbers can be explained as a result of more people reporting crimes instead of more crimes, and these statistics don’t provide a concrete proof either in favour or against of capital punishment. Also, while reporting increased after 2012, there has been little change in the conviction rates for crimes against women, suggesting that policing and other changes did not materially affect outcomes beyond reporting. In fact, the conviction rate for rape crimes has continued to decline since 2007 and has reached a historic low of 18.9 percent in 2016.
Moreover, social workers have explained that capital punishment is often detrimental to the victim as it often leads the accused to finish off any kind of evidence so that there is no proof. According to Zainab Malik, of the Lahore-based legal rights firm Justice Project Pakistan, "Even though under the law, rape is treated on a par with terror, nothing has changed. Rape and gang rape cases are progressively increasing while conviction rates remain abysmally low," She says that it is because the "police are biased against women and are hesitant to even register cases of gang rape as that would mean the death penalty for a group of men" (BBC). In a society that finds the most feeble excuse to turn on the victim, capital punishment is often used as an excuse to pressurise the victim to not report. Considering that a significant proportion of rape cases are committed within the family (almost 90% of rape cases are committed by someone known), this usually works in favour of the perpetuator. Therefore, an obvious reason why organizations working for welfare of women are against capital punishment is (often) not because they’re thinking about the welfare of the rapist, but because it deters the condition of the victims and makes them less likely to report. Instead, experts argue that what it does is divert the attention and resources from the ailing criminal justice system. Changing the punishment won’t make a lot of difference because seldom does a person weigh the pros and cons of committing a crime and its implications lest he gets caught (especially when we’re talking about rage crimes). The solution for rape is acknowledging the rape culture deep-rooted in our society and channeling our resources and outrage to ‘prevent’ it rather than talking about it only after the crime is committed. The solution is to question the Judiciary, to exercise our power and activism in ways that make this country a safer place for everyone. The solution is to ask the right questions and demand meaningful answers.
Works Cited
“Average 87 Rape Cases Daily, Over 7% Rise in Crimes Against Women in 2019: NCRB Data.” The Wire, thewire.in/women/average-87-rape-cases-daily-over-7-rise-in-crimes-against-women-in-2019-ncrb-data.
“Death Penalties in India: Convictions and Acquittals - A Short History.” The Economic Times, economictimes.indiatimes.com/news/politics-and-nation/death-penalties-in-india-convictions-and-acquittals/many-cases-are-commuted-to-life-in-prison/slideshow/72834569.cms.
“India: The Law Commission of India.” 1992, doi:10.14217/9781848594920-11-en.
PTI / Updated: Feb 5, 2012. “Mandatory Death Penalty Is Unconstitutional: Supreme Court: India News - Times of India.” The Times of India, TOI, timesofindia.indiatimes.com/india/Mandatory-death-penalty-is-unconstitutional-Supreme-Court/articleshow/11764170.cms.
A, Shivani. “Execution Of Capital Punishment In India : Is It A Violation Of Human Rights.” International Journal of Advanced Research, vol. 8, no. 01, 2020, pp. 254–260., doi:10.21474/ijar01/10292.
Bhatnagar, A., Mathur, A., Munasib, A., Roy, D. (2019) Sparking the #MeToo Revolution in India: The “Nirbhaya” Case in Delhi. AEI Economics Working paper 2019-06
Arya, Divya. “India Death Penalty: Does It Actually Deter Rape?” BBC News, BBC, 31 July 2018, www.bbc.com/news/world-asia-india-44922084.
Piece By-
Anupriya Dubey
Anupriya is a 2nd year psychology student in Daulat Ram College, Delhi University. She finds recluse in books, coffee and her poetry, and is always up for talking about politics, philosophy and make-believe ethical dillemas.
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