Introducing the death penalty for rape will create more problems than it will solve.
On February 9, a man was hung to death in Tihar jail. Justice was done, said some. Others felt the man had not been given a chance to prove his innocence. And still others felt that irrespective of the case, the dictum of an eye for an eye and a tooth for a tooth could not be the imperative that a civilised society follows.
The object of this column is not to go into the details of the Afzal Guru case, although it is one that should not be pushed aside as old news. But two months after the gang rape of a young woman in Delhi, a terrible tragedy that triggered waves of protests and demands for justice, it is important and relevant for everyone, including women, to talk about the death penalty.
Do we as women, destined by biology to give birth and ordained by society to be nurturers and care-givers, support a regime that awards death for certain heinous crimes? Do we believe that taking a life will act as a deterrent to those who destroy lives? Do we accept that the system of justice is so even and fair that even the poor, the oppressed, those without the wherewithal to survive long drawn out legal battles, can get justice? Should a civilised society be moving away from capital punishment or continue justifying its continuance — and even demand that it be extended to more crimes, as is happening in India? These are questions that we must ask, debate and resolve.
The reason why the death penalty should concern all women is because of the crescendo demanding death for rape that followed the December 16 Delhi rape. In newspapers, television channels, everywhere, you heard voices arguing that only death would act as a deterrent. The government has apparently decided to respond to this chorus of demands for death by introducing the death penalty for rape in the recent ordinance that was promulgated on February 3, the Criminal Law (Amendment) Ordinance, 2013. Introducing the death penalty for rape flies in the face of the Justice Verma Committee’s recommendations.
It is a pity that the government has chosen to do this without considering the reasoned and excellent discussion on the death penalty in the Justice Verma Committee report and also without allowing the time and space for more opinions to be garnered on this question. Instead, to show that is finally becoming “decisive”, it has rushed through an ordinance even when Parliament is about to begin its budget session.
There are many aspects to this debate. On the death penalty for rape it is worth reading the Justice Verma Committee report, available for a free download on several sites including www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committee-report-summary-2628/, particularly chapter nine, which deals with “Sentencing and Punishment”. The chapter begins with a quote from an American judge, Justice Stewart in Furman v Georgia that sums up the philosophical argument against the death penalty: “The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”
The Committee has argued that introducing the death penalty for rape could lower the conviction rate rather than enhancing it or acting as a deterrent. It has recommended instead, that the punishment should be from a minimum of 10 years to life, with “life imprisonment” redefined to mean the end of the natural life of the convict. It has also pointed out that across the world, the majority of countries have revoked capital punishment.
Furthermore, the UN Human Rights Commission adopted a resolution in 2007 that asked all countries for a moratorium on death penalty paving the way to its ultimate abolition. In support of the death penalty, some young women have argued with me that if men know that they will be hanged if they rape women, the incidence of rape will automatically decline. They point to countries where capital punishment is liberally used to control all forms of crime. They forget however that in many such countries, women are confined, not given the right to move freely in the public space. Also in such countries, the sexual assaults within the home, which anyway constitute the majority of crimes against women in practically all nations, are never reported. Thus, the mirage of fewer crimes is created without actually reflecting the reality. We need to ask whether millions of women — rich, poor, urban, rural, tribal, Dalit, and women living in conflict zones where the armed forces have impunity against such crimes — would feel more secure if men are hanged for rape. Within the existing, and deeply flawed, criminal justice system in India, introducing the death penalty for rape will throw up many more problems than it will solve. We need justice for the victims of rape. But for that we need an efficient criminal justice system that registers cases, that collects evidence and that prosecutes.
This is far more important than an extreme form of punishment that might allow judges to pass lenient sentences because they are not convinced that the crime deserves death. Fortunately, the ordinance will lapse within six months if it is not passed as a law by Parliament.
Here is a window of opportunity – to bring in a more nuanced and balanced argument on how to ensure justice for crimes against women without the death penalty.
Email: sharma.kalpana@yahoo.com
Keywords: The Other Half, crime against women, death penalty, UN Human Rights Commission, conviction rate
I agree with Ms. Sharma that what we need is “...an efficient criminal justice system
that registers cases, that collects evidence and that prosecutes”
Unfortunately, some of the commentators here who clamour for the death penalty
forget the fact that in the flawed Indian criminal justice system there is no
certainty of punishment. Indeed, those who do get prosecuted are poor criminals -
the rich and well connected walk free.
The alleged deterrent effects of the death penalty is also something that is
misunderstood. India has the death penalty but this has not in any way affected
the number of homicides in the country. Statistics from the United Nations Office
on Drugs & Crime (UNODC, bit.ly/ZhjEJs) show that between 1995-2011, there
were on the average 41969 homicides/year in the country-the death penalty
notwithstanding.
Empowering an erratic, politicised judiciary to use the death penalty on the basis
of the forensic prowess of a corrupt, politicised police is very dangerous.
Messrs Rangarajan, Namboodiri, Sameer etc.
The death penalty is no deterrent to violent crime. Indeed, in the USA, murder
rates are LOWER in states which DID NOT have the death penalty than in states
which had it. Do check the the Death Penalty Information Centre at
bit.ly/bAOUcX. The average murder rate (AMR), defined as the number of murders
per 100,000 population in various states is as follows:
AMR was 4.7 in states WITH the death penalty as against 3.1 in non death penalty
states. This trend was valid for all the years from 2011 to 2008.
Another UN study at bit.ly/TXBVJy corroborates these findings.
Since there are on the average 22,000 rapes in India every year, would 22,000
persons be hanged every year ? Each of the 640 districts in India would need 34
gallows and a large number of hangmen... pardon hangpersons...India would then
be executing more people per capita/year than countries like Afghanistan, Saudi
Arabia & China.
Sickening stuff in Incredible India !
I agree with you Kalpana. We need to look at it from the bottom up. When the basics are done right, the end result will certainly be better. I hope that happens.
Capital punishment doesn't do any good to both the convict and the victim. It makes the convict as the sole reason for the crime, discarding all the causalities which made him/her to be a trigger of the crime. On the other hand, Capital punishment is not allowing to the victim or victim's family to regain normal life by making the crime is the end of their life (as it's ending the convict's life). Above all, forced death cannot be a punishment and there's not room for justice, in the true sense of the word. In this method, the criminal dies and crime stays.
Ms Kalpana,
The death penalty can only be a tool as punishment if a country has a highly evolved
court system. I do believe in the death penalty as a means to punish those who
commit the most heinous crime and when that can be proven beyond any shadow of
doubt.
Here in the United States, murderers most often get a Life sentence in prison but are
then a responsibility of the community and are cared for much better than some of
the victim's own family. They also survive to be a reminder to the family and friends
of the deceased that the criminal may survive long after others have suffered a
shorter life and with perhaps worse health care than the prisoner. So, the death
penalty may be a better solution for the most extreme of crimes but a exceptionally
good court system is necessary to avoid what we've seen happen here in the U.S.
when an innocent person goes to the gallows.
Though she has a point in saying award of death sentence for rape might
bring down conviction rates , the solution does not lie in abolishing
it--but ensuring maximum conviction rates which acts as a deterrent on
future crimes of such brutality . The logic in saying that death penalty
does not bring down crimes is self defeating.Many laws are followed
more by flouting in this country -but do we abolish laws altogether?
I think that every one of us must take the responsibility of protecting our people- men and women. We must educate the men to respect women. For men to respect women, it is necessary for men to interact with women freely. Most of the men have many perverted thoughts about girls and women because they do not get any chance to interact and understand girls. Most men think girls as sex objects because that is how they see women in movies and ads. Therefore, it is very important for men to get opportunities to understand the persons in women to be able to see them as individuals.
Last week a man working in Saudi told me that when a girl is raped in Saudi, she is more likely to be murdered because otherwise she may drag the rapist to court and then he will be killed. Hence, as a precaution the rapist instead of letting the victing alive kills her.
Therefore, we must not make death sentence the punishment for rape. We should more actively engage ourselves in protecting our people.
A lot of discussion is taking place in the wake of recent death
penalties awarded about whether death penalty is right or wrong. In
the cases of Kasab and Afzal Guru who waged a war against our nation
what can be the alternative? Keeping them alive here in prisons is
costing the exchequer in hundreds of crores of rupees. One cannot be
sure that such criminals get reformed after certain amount of time to
liberate them. Whether they can be deported? In the case of sexual
assault keeping aside the severity of the punishment, can we imagine
what might be going through the mind of the girl in Delhi assault
case, when she is violated with an iron rod? Here, the associated
violence is of much greater import than the sexual act itself which
lead to the death of the victim. Now, instead of worrying about the
punishment, the policy makers will have to concentrate on the
circumstances that are leading to such crimes. One area is film
industry which is finding more and more novel ways of assaulting women
(mostly the sister character of the hero). Then there is education.
There are no ethical and moral values being taught in primary and
secondary level. Then comes the poverty and the consequential grudge
against the society. If a crime is rare and the perpetrator is sane
then the punishment can be light with a hope that he will reform. But
when the crime rate is increasing and the perpetrators are getting
more and more sadistic, there is no alternative than to hand over the
severest punishment.
indian policy makers should realise that we need harsh steps to prove ourselves in world ranking of think tanks we are good in making plans ....but when it comes to execution we usually fail due to our soft law makers //
The girl who dies of rape (Nirbhaya) recently, wanted death sentence for the criminals.
Let Kalpana Sharma go through the same ordeal as Nirbhaya, and then she can sermonise over rape sentences.
Hi Kalpana as you mentioned about the other countries where death penalty is being practice and you given the example of home violence but why can't you consider the taking of 1 out of myriad rules from those country? And Verma committee's report they have give a condition for death penalty that is if victim is in comma or having serious injury then only. I am sorry but I am in complete disagreement with you.
I do not completely agree with the writer regarding her view of not awarding capital punishment for rapes.Of course death penalty is not panacea for psychich sex maniacs but I believe it can be deterrent.Take Saudi Arabia for example,people of that country have seen many open hanging deaths of culprits and naturally so when tempted to do a horrible crime,the fear of punishment ,the death knell may chime in his heart and it may deter him from doing the menace. What we understand from the past experience of crimes is that many fall victim to the on the spur of the moment instincts and they may not exactly know what the aftermath of such a crime would.One thing is for sure for them they are not going to be killed,so they fall prey to their instincts.But if there is a definite severe punishment like death penalty,the very thought would be in the minds of the people and it may prevent them from doing the horrible crimes.How should we treat a criminal like Govindachami?please tell.
Wonderful logic.There should no death penalty for rape simply because the judges are likely to pass lenient sentences.If any judge falls in this category then he should not be in that chair.He is supposed to deliver justice to the victim and not leniency.Does the author mean that the victims suffering has no value?Rape is an assault on the victim.Her life is ruined by the act of the accused. The person should be given death penalty.If let out he will continue to do the same.There is no life imprisonment in Indian system. you can get parole easily and come out.As for mr Verma report his introduction itself gives his mindset . After one month he has done an eyewash and recommended death for rapist in case of death of the victim.Even otherwise a person is liable for death in case of murder/killing. He take one month to write that.Really a pity .
Well, the society doesn't want an eye for an eye. But the person who
had spoiled someone's life forfeits all moral rights to enjoy his own
life. The gravity of the crime has to be taken into account while
sentencing the criminal. At times, it may prove that keeping the
criminal would not be beneficial either for him or for the society.
Are we announcing state and national awards to achievers only to
encourage others to follow suit or in recognition of the individual's
achievement? In the same way a criminal has to pay for his crime in
the same way the victim had suffered. If we keep on sympathizing with
the victims, because we abhor death penalty, there will not be any
remorse for crime committed. In olden days also the society was well
civilized but death penalty was awarded and executed.
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