Guidance

Death Penalty for Rape: The Judicial Position

By November 4, 2016 No Comments

In December 2012, a gruesome gang rape of a 22-year-old girl in Delhi shook the country within. Across the country, people with different backgrounds, class, gender, age, regions & religions gathered on the streets and gave voice to their protest. Due to massive public outrage, this case had become the priority of government as well as our judicial system. Because of this case, the issue of rapes in India was thoroughly discussed by media and common citizens. The general social sentiment was towards changing the law to make rapes capitally punishable. i.e. capital punishment for rape.
We are here to discuss the law as well the sentiments of the society, but not as an emotional ordinary citizen but a rational future bureaucrat. A hideous crime like rape affects all of us. Like any other human being, we get angry and look for easy and quick solutions. Capital punishment for murder is one such emotional solution which is based on satisfying the feelings of revenge. What is the approach of Indian Law towards this crime and penalty assigned to it?
 
  Can courts hang someone based on sentiments?
 
The answer is plain ‘No’. Every Indian citizen enjoys fundamental rights given by the supreme court, where Article 21 stands for life and personal liberty. If we understand the idea of capital punishment, then it is a legal murder. So, it becomes the judicial system’s utmost responsibility to provide criminal a fair trial without bringing sentiments in their judgments. Most importantly, the philosophy of Indian legal system is not pro-revenge, but it is pro-redemption. Mob Justice or Media Trials are usually reactionary in nature, and they are solely based on sentiments. But we have come far from the middle ages where people used to get hanged, tortured and pelted mercilessly without a proper trial.
In our democratic country, the constitutional laws prevail against social or religious norms. The Indian criminal law upholds the provisions made in Article 21 while sentencing. The financial and solitary punishments given by Indian courts are to reform convicts. Even the death punishment are given with particular protocol where the death should be quick and without suffering.  In 1983, Supreme Court had ruled that capital punishment should be only in the ‘rarest of rare cases.’ Till now, Honor Killing and Police Encounter Killings are ruled out by SC as crimes to be punishable by death penalties.
 
What are the exact criteria to define rarest of rare cases?
It is quite difficult to elaborate as there is no precise definition is given by the law. But a rarest of a rare crime is such a crime which is extremely brutal, grotesque and diabolical, which arouses the extreme indignation of the community. For example, in Nirbhaya case, the victim was not just raped, but she was gruesomely tortured. Whereas, in Pallavi Purkayastha rape case, a security guard of her society sexually assaulted her and killed her in the process. This case is not considered rarest of rare by judiciary.
 
What are the repercussions, if every rape will be punishable by the death penalty?
The statistics of such crime is high and ever increasing. Even after the massive public outrage in Nirbhaya case, hasn’t stopped or lessened the occurrence of the offense. It means the deterrence for rape crime is still very low. In India, a rape convict is sentenced to 7 years in jail. But if the capital punishment is introduced for every rape crime, then the results will be different than expected. A criminal committing crime will also commit the offense of murder, knowing a sure capital punishment. So such criminals would end up in murdering and be shutting their victim’s voice to save their skin from capital punishments.
What changes should be made in the system done to prevent such crime? 
To avoid such offenses, the system should be ready and prepared to implement current laws efficiently.

  • the victim never get justice, and their convicts stay free to commit more crimes. So, due to this, the rate of deterrence is microscopic in our country.
  • Secondly, even in those 2 % favorable cases, the justice is served after long and tedious judicial process of appeals and dates which take decades. Such kind of justice is almost equal to a denied justice.
  • To understand this, let’s take an example of any other crime where a criminal has to pay a particular penalty as a punishment. For example, those who do not wear helmets have to pay Rs. 100 as fine to RTO officers. But because the preventive machinery fails to punish such criminals, bikers never wear the helmet and follow the law. In this case, increasing the fine from Rs.100 to Rs. 1000 will never help, as those who break laws know better that nobody is going to catch them, and they are neither paying 100 rupees or 1000 rupees whatsoever.

So, the lawmakers of India should first simplify the process of justice, where the victim should get relief within a guaranteed short period. There should be the system of Fast track courts where the justice should be served within six months without any hindrance. Such efficiently working system will certainly put fear in the minds of those potential criminals.
 
 
What can we do as a society?
 
As a society, we can destroy the urge of committing rape by changing few things about our traditional norms.

  • Firstly, we have to detach the idea of losing honor from rape. Our idea of honor related to women’s sexual identity is nothing but purely patriarchal. As a human being, a woman is more than mere a sex-object. Her ideas, her dress, her sexuality, her choices are not subject to any age old traditional beliefs.
  • In our society, a rape victim is victimized twice, once by the actual rapist and once by us. Such victims have to fight against their relatives & community for social assimilation. Such victims are not allowed to live ordinarily in the society, and they have to fight for their dignity again.
  • If we research the usual motive behind rapes in India, we can find that the fundamental purpose is not sex, but its power! Even in 21st century, Indian society cannot stand to the idea that women are independent decision makers with a bright future. Gender discrimination is the basis of many social norms.
  • The society is not yet comfortable with a confident and independent woman. The interview given to the BBC by the convict in the Nirbhaya case is self-explanatory. Most of these rapes are done with a feeling of ‘teaching her a lesson’.

So, let’s conclude with the title of this article, ‘Why a Rape should be answered with Life but not Death?’ It should be replied to with a fresh new life to life to such rape victims rather finding solutions in revenge. We need a soul searching rather being a part of the rape culture. There are many new movements across the world, even in India for women liberation and emancipation. Every section of society should support such movements. As a human being, it is our social duty to accept the women as independent human being rather than mere objects.
 

Akshay Palande

Author: Akshay Palande

Akshay Palande is a passionate teacher helping hundreds of students in their UPSC preparation. With a degree in Mechanical Engineering and double masters in Public Administration and Economics, he has experience of teaching UPSC aspirants for 5 years. His subject of expertise are Geography, Polity, Economics and Environment and Ecology.

Akshay Palande

Author Akshay Palande

Akshay Palande is a passionate teacher helping hundreds of students in their UPSC preparation. With a degree in Mechanical Engineering and double masters in Public Administration and Economics, he has experience of teaching UPSC aspirants for 5 years. His subject of expertise are Geography, Polity, Economics and Environment and Ecology.

More posts by Akshay Palande

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