Crime and punishment
- KALPANA SHARMA
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.
Should a civilised society be moving away from capital punishment or continue justifying its continuance ?