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Is Death Penalty The Solution?

Is Death Penalty The Solution?

After the gang rape of and murder of an eight year old girl at Kathua in Jammu and rape of an 18 year old girl in Unnao by a BJP lawmaker there was uproar in the country. There were also other gruesome incidents of rape and killing of girl children reported from Surat in Gujarat, Etah in UP and Indore in MP. The anger and anguish of the people were expressed through the social and print media and candle light processions taken out in various cities and towns of India. Obviously the administration was the main target of people’s anger. The BJP government wanted to show to the people that it is determined to act and the recent ordinance, providing death penalty to offenders who rape girls below 12 years of age, could be the result of government’s desperate effort to refurbish its image. It appears to be a kneejerk reaction to nationwide protest. But many right thinking citizens in India are asking whether awarding death penalty to the rapist is the right solution or something else is to be done.

Supreme Court lawyer Ms. Karuna Nundy doesn’t agree with the government stand. "The death penalty is easy political candy to hand out to angry and upset citizens, but it's much harder to work on justice systems that guarantee swift, certain punishment for sexual assault or to limit the violent patriarchies that cause rape in the first place," Ms Nundy said.

According to Swagata Raha, a legal researcher with the Center for Child and the Law at the National Law School of India University at Bangalore, the decision of the government is a reactionary measure that can have a negative impact. Death penalty can make it difficult for children to come forward and disclose sexual abuse because 94% of offenders are relatives or otherwise known to their victims.

Reacting to the ordinance Brinda Karat, the CPM Politburo member, said it was an attempt to divert the attention from the government protecting the rapists of the eight-year-old girl in Jammu and Kashmir's Kathua. "We have heard about  gau rakshaks and criminal activities which they indulged in. Today BJP is preparing and has prepared bands of men who are rapist  rakshaks," she said and demanded that penalty should be there for those protecting the rapists. She also said that what is required is certainty of punishment and the ordinance is not addressing the issue which is agitating the minds of people. "The shame of Kathua is that the victim was selected because of her religion and accused were protected because of their religion. Top BJP leaders came on streets to defend rapists," she added.

Some social activists are of the view that the ordinance is a mere eye-wash for the government’s apathy in addressing core concerns of rape victims and the deplorable condition of the Special POCSO Courts in the country. Those who clamour for death penalty for rapist fail to acknowledge that the courts are already empowered to award death penalty to the accused in a gruesome rape and murder case, as it would fall within the ‘rarest of rare’ category. Even in the Delhi Gang Rape case, the accused were awarded death penalty under the then existing provisions of the Indian Penal Code, and not under the amended statute.

Several studies have highlighted that death penalty is not a deterrent for
any crime. After the gang rape of a woman in Delhi in 2012 the parliament enacted a stringent law to punish the rapists. But the data available with National Crime Records Bureau (NCRB) show that the incidents of reported rape have risen 60 per cent since then, to 38,947 in 2016. According CRY (Child Right and You), an organization working for the empowerment of children, there was 500% increase in the sexual crimes against minors during 2006 and 2016.

Another suggested amendment in the ordinance is an increase in the minimum punishment. According to some legal experts this will only reduce the conviction rate even further. It is the certainty of punishment and not severity that acts as a deterrent. The conviction rate in rape cases continues to be very low even after introducing stringent punishment under POCSO and rape under Section 376 IPC. As per the NCRB report the conviction under POCSO Act was dismal 29.6% in 2016. In several cases victims have turned hostile in court even though they disclosed details of continuous sexual violence by their father to the police and magistrate under section 164.

The Delhi High Court has questioned the rationale behind the recent ordinance to provide capital punishment for rape of children below the age of 12. The Court on April 23 asked the centre if it had done any research or scientific assessment before coming out with such an ordinance. The High Court was hearing an old PIL that challenged the Criminal Law (Amendment) Act of 2013, in which a penal provision –minimum of seven years of jail term- for a rape convict was included and the court’s discretion to award less than that was taken away.

"Did you carry out any study, any scientific assessment that death penalty is a deterrent to rape? Have you thought of the consequences to the victim? How many offenders would allow their victims to survive now that rape and murder have the same punishment," a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar asked the government.

The government may not be able to give a convincing answer to the court. What compelled the government to take this extreme step was the anger expressed by the people throughout the country. It wanted to pacify the anger of the people. But the BJP government is underestimating the people of India if it thinks that the people can be fooled by this kind of symbolic actions. The people’s ire was directed against the persons and organizations that supported and shielded the rapists and they belong to BJP and the Sangh Parivar. Using crimes like rape to target a particular community is the result of injecting the venom of hatred into the hearts and minds of millions of people, particularly the young people and children. The organizations whose main goal is spreading hatred and revenge are supported and encouraged by the BJP governments.

As reported by The Times of India on April 22, the Union Minister Santosh Gangwar, made a highly insensitive and offensive statement in the context of Kathua and Unnao rapes. “Unfortunately, these things happen and sometimes you cannot stop them. The government is active and investigation is on. One should not make a big deal out of it if one or two such cases are reported in the country,” said the minister. Such statements by the BJP leaders indicate that crimes against the minorities whom the Sangh Parivar considers as the enemies of the nation could be taken lightly. This mindset of the members of the Sangh Parivar is in tune with the Manusmrithi which RSS wanted to make the basis of the Indian Constitution. Killing of a woman, a Shudra or an atheist is not sinful according to Manu IX. 17 and V. 47, 147.

Putting in place stringent laws to punish the rapists alone is not enough to reduce or prevent the recurrence of rape. There needs to be a change in the mindset of the people. The patriarchy that is dominant in all religions considers women as the property of men. The same mindset is reflected in the Manusmrithi. Unless and until this mindset is not changed, crimes against women will continue to increase. The children, particularly the boys are to be taught from the very young age to respect women and treat them as equals.  

Often the heinous crime of rape is committed to take revenge on a particular family or community. The teachings of Jesus Christ and Mahatma Gandhi on forgiveness and reconciliation are very relevant to the context of the world today. Organizations and groups that promote hatred and revenge against particular communities are to be rejected by the people. These groups are in fact the enemies of humanity and they are in real sense the anti-nationals.


(Published on 30th April 2018, Volume XXX, Issue 18)