Vol. XLIII No. 07 February 17, 2019

Is Death Penalty the Right Solution?

Dr Manjeet Rathee

THE huge public outcry and resentment at the increasing incidents of rapes and sexual offences against women today can well be understood and appreciated. In a country where a woman is reportedly raped every 15 minutes (this, despite many rape cases still going unreported), and where a woman is a victim of crime every two minutes, such outrage is a natural reaction, particularly when law makers and law protectors become accomplice to such heinous acts, as demonstrated in Kathua and Unnao rape cases. This alarming situation raises many questions about the status and condition of women in India which boasts of modernity, socio-economic growth and development. More than anything else, this growing ‘culture’ of rape within the larger ambit of violence against women, is a reflection of growing concentration of power in the hands of patriarchal and retrogressive sections of society and increasing vulnerability of women, especially belonging to poor and marginalised sections. Any kind of communal and fundamentalist outlet, as also the growing hate crimes in recent years, tends to target women’s body and dignity as a part of taking revenge on a particular caste or community. Further, in any repressive and regressive setup, women or girls exercising their own choice in matters related to mobility, dressing up, career/employment or most importantly on the issue of marriage, are seen as great threat to the ‘given’ social norms and ‘morality’ and become an easy provocation for sexual assault. Can any hasty and impractical amendment in the form of present ordinance of the cabinet introducing death penalty for rape of children below 12 years, address such deep rooted inequalities, socio-cultural caste and gender prejudices and patriarchal mindset?

The history and experience of death penalty in various countries proves that death penalty has failed to act as a deterrent for obvious reasons related to very lengthy trials and appeal processes, uncertainty or lack of adequate and proper evidences many of which in case of sexual offences tend to be destroyed, complex jury selection and shoddy police investigations. The amendments in the Indian Penal Code made after Nirbhaya case, leading to the provision of very harsh punishments, did not, in any way, lead to decrease in the crimes against women in our country.  There has, in fact, been an increase in rape cases after that and the nature of violence has been far more heinous, where little girls have been most brutally raped and many of them, even been mercilessly killed after rape. A report by National Research Council in 2012, after a careful examination of various studies related to death penalty and deterrence, came to the conclusion that death penalty does not, in any credible way, impact crime.

Let us not forget that the conviction rate for rape has been as low as 24 per cent (2014) and abysmally low in case of rape of children, as is shown by statistics of National Crime Records Bureau (NCRB). With the introduction of POCSO (Protection of Children from Sexual Offences) Act, 2012 till the year 2014, the number of crimes related to child sexual abuse, according to the Bureau, increased from 38,172 to 89,423. However, conviction rates were as low as 2.4 per cent. This is because of glaring defects in the manner in which the crimes are investigated and the trial is conducted. Important evidence is not collected and the protocols which are supposed to be followed by the police during investigation are often bypassed. A study by the National Law School of India University (NLSIU) on special courts established under POCSO reveals that there is not much change in the behaviour of police, doctors, lawyers since the law has been passed, meaning thereby that the system dealing with criminal justice continues to remain insensitive. The same report also confirms the extremely low level of conviction under POCSO, where within a period of six months last year, only one in six cases resulted in conviction. If that is the situation in the special courts set up for the purpose of delivering speedy justice to children, one can well imagine the fate of such cases in ordinary courts. 

There is no denying the fact that the rape of a child constitutes the most abhorrent and outrageous of crimes, and it deserves very serious punishment, yet it is the certainty of justice to critical masses that counts more than the severity of punishments to a selective few. With a close look at the terrible overburdening of court systems in India, and majority of sexual offence cases pending for years together due to dismal shortage of appropriate infrastructure and lack of trained manpower, with almost no police station that can properly store and transport various biological samples and evidences, these selective few too, are more liable to go scot free. In the absence of any kind of punishment, NCRB data shows high figures of repeat sexual offenders. Under the given circumstances, death penalty rather than proving a deterrent to perpetrators of violence against women, is on the contrary, more likely to act as a deterrent on the judges, who, due to the fear of unreliable testimony, could be extremely hesitant and even guilty to deliver such a verdict. There is also the additional risk of death sentences being given in an arbitrary manner and studies have shown that it is often the marginalised and poor sections of society who are more likely to be penalised with death sentence. The rich and the powerful often manage to escape due to their political influences or alliances.

There is also a strong cultural element associated with child sexual abuse in India. With majority of those implicated in the crime being either family members directly related by blood or friends and neighbours or in some ways known to the family, there is a strong element of hesitancy/ conflict to reveal their identity out of fear, intimidation or various socio-cultural pressures. Families might further be discouraged to report if death penalty is going to be awarded. All kinds of pressures on the victim, concerned family, as well as the witnesses, continue to mount once the case is registered to compel them to withdraw the case or compromise.  According to the above mentioned NLSIU report based on five states of India (Karnataka, Maharashtra, Assam, Andhra Pradesh and New Delhi), as many as 67 per cent of the child rape cases do not reach their final stage of conviction and are withdrawn in between due to threat or intimidation from the family of the accused. Above all, there is every probability that introduction of death penalty might encourage the perpetrators to take away the lives of the victims since sparing her life would increase the possibility of her testimony against him. Since the quantum of punishment for rape and murder is now same, the perpetrator would not like to leave behind any traces of evidence. We, as civilized society, can ill afford to put the lives of rape victims at such a menacing risk. Many lawyers and intellectuals have expressed the same apprehensions.

Hence it is the strict and proper implementation of existing laws and certainty of punishment for the perpetrator, irrespective of caste, class or community that can help in putting some checks against such brutal acts of violence and crime against women, along with hosts of other reformative and reparative measures. In aggravated forms of violence, period of life imprisonment could be increased from 14 years or 20 years to life time without remission. Such strict implementation of laws can only be ensured when political patronage of criminals is nipped in the bud and politics is separated from all kinds of anti-social alliances. The acquittal of the accused after prolonged trials leaves the victim and the family in a state of utter shock and despair and many a times even more vulnerable than before to physical and sexual assaults.

In a society beset with such huge disparities and hierarchies of caste, class and gender, neither the logic of ‘instant’ vigilante justice nor that of retributive justice would serve any purpose. Fear and punishment alone can never act as a deterrent in a society where there is such large scale discrimination and acceptance of violence against women and the poor in various forms.  What is really needed is to strengthen the systems and due processes of justice that can work in favour of restoring a dignified life to the disadvantaged sections, especially women. Any knee-jerk and populist measure would further dent the already fractured faith of the saner public in delivery of justice and provision of safe and secure environment. Even the lawyer of the 8 year old victim of Kathua has questioned the validity of death penalty and expressed fear that it might not work as a deterrent for rapists. She, instead, has stressed upon the need for society and system to be more sensitive to victims.

What is needed is overhauling of existing criminal justice system. Police and judicial reforms should be initiated without delay so as to enhance rate of conviction. This fear of conviction and surety of punishment would certainly ruffle some feathers and make the perpetrators of crime uneasy. The whole process of registration of FIRs, conducting of medical examination in the hospitals, manner of questioning of the victims in court, repeated visits of the child to the court, is often too hostile at present and needs sensitive and respectful handling. Justice Verma’s recommendations for setting up of one-stop crisis centres in all states need immediate implementation so as to minimise the harassment of the seekers of justice from one place to another. What is absolutely essential is that the victim is treated with respect and her right to life is ensured by all means. It’s a torture for a child to repeat her statement related to sexual offence again and again for months and years together. It is also crucial to augment various measures of counseling, compensation and respectful rehabilitation of the victim, which requires adequate allocation of funds. Restoration of dignity of the rape survivor through delivery of speedy justice and supportive attitude of the society is central.

Along with above judicial reforms, long term measures to curb violence against women are also necessary. It is imperative to address the roots of inequality against women. It is high time to critically look into discriminatory upbringing of male and female child and resort to equal gendering right from the birth. The youth, in particular, and society in general, needs to be educated about how to treat our women as equal human beings and not reduce them into ‘bodies’ ‘wombs’ and sex objects. Women’s access to all kinds of social spheres and spaces, along with her rightful claim and ownership of resources, would enhance her self-image as well as social image. The conditions leading to poverty, unemployment and disillusionment, feminisation of poverty and demeaning portrayal of women in media, which tend to become a fertile ground for crime, also need to be interrogated and reformed. Let the genuine emotional outlet of the outraged public not be manipulated into providing easy, evasive and unpragmatic solution to a complex problem.