Waking up on the morning of March 20, I was inundated with the news of the four men convicted in the Nirbhaya rape case hanged till death. For someone who believed in the death penalty in the rarest of rare cases, this was a watershed moment when I realised that the death penalty means nothing in terms of long-term justice done.
The purpose of punishment can be multifold. The theory of punishment suggests that the punishment includes retribution, deterrence, rehabilitation or incapacitation. In the case of the death penalty, the punishment combines incapacitation (where the end goal is to protect society and preventing the offender from committing further crimes), retribution (where the offender suffers proportionately for breaking the law) and deterrence (where due to the threat of punishment, lesser crimes are probable).
With the Nirbhaya rape case, none of the objectives of the theory of punishment have been met. For this topic, I am mainly focusing on deterrence through punishment. Throughout the process, the Hon’ble Trial Court, the Delhi High Court and the Supreme Court concurred on the death sentence imposed on the accused. With the final verdict of the death sentence being given in 2017, there should be a marked decrease in the crimes against women in India since then.
According to the latest National Crime Records Bureau (NCRB) report, the crimes against women have increased from 41761 in 2016 to 42180 in 2018. According to India Today, as many as 33,356 incidents of rape were reported during 2018 involving 33,977 victims, an average 89 rapes daily. Compared to the 32,559 rape cases registered in 2017, it is clear that there has been an increase. The narrative, then, of deterrence falls short considering that offences against girls and women, including rape, are increasing.
The Indian Penal Code (IPC) also suggests life imprisonment. This would have served the purpose of ensuring that the offenders would not be out on the street committing more crimes, thereby fulfilling the criteria of incapacitation. In addition to being in Tihar jail for the past 7 years, the convicts were also beaten up while in jail. Thus, retributive justice turned into revenge, where we are left wondering if being mercilessly beaten up, sexually assaulted and being imprisoned is proportional to the brutal rape and murder for which they are convicted.
With this information in mind, it is pertinent to come back to the question of the death sentence. The judiciary has impressed upon the fact that “Awarding death sentence is an exception, nor the rule, and only in the rarest of rare cases, the court could award death sentence” as is seen from the law laid down in various cases. Yet, nobody has questioned “the rarest of the rare” phrase that is used. Would it apply to the crime or the public outcry which follows demanding for blood?
For instance, Bilkis Bano is a survivor of the violence of the Godhra riots in 2002. Bilkis, who was 5 months pregnant, was gang-raped along with 4 other women which also included her mother and was also assaulted. When she tried to register a complaint and get justice, she was met with death threats. More recently, a 17-year-old girl was gang-raped, with the perpetrators including a politician Kuldeep Singh Sengar. This case came into the public eye because of the continuous interference of the accused in the victim’s attempt to justice. This even included a collision with a truck having a blackened license plate where the two of the victim’s family members died and the victim along with her lawyer were severely injured. In the Kathua rape case of 2018, an 8-year-old was abducted, raped and murdered in Jammu and Kashmir. In all of these cases, the sentence of life imprisonment was imposed. Do all these cases happen so regularly in India that they are no longer seen as rarest of rare?
Alternatively, in the 2019 Hyderabad gang rape case where a veterinary doctor was raped and murdered, the accused were killed in a police encounter. Another question also makes itself clear when analysing these cases of rape, is a death sentence based on the religious and socio-political background of the accused?
Therefore, I do not agree with the death sentence. Not only does it not carry out the objectives of the theory of justice as mentioned above, but it is also not applied equally in its implementation. I stand with the celebrated jurist late Justice V. R. Krishna Iyer when he famously stated “Death sentence on death sentence” in the case of Dalbir Singh v. State of Punjab (1979).