Death Penalty for Rape Won't Dismantle the Social Structures That Facilitate It

Is Mamata's anti-rape law truly about deterrence and long-term change, or instant punishment to appease the public?

The ghastly rape and murder of a young doctor in Kolkata has triggered a wave of protests as well as the age-old discourse about how sexual violence against women and 'rape culture' can be tackled. The intense public anger and protests across the country bring back memories of the 2012 Delhi gang rape case, which turned into a watershed event in the way in which rape was discussed.

The two heinous crimes took place 12 years apart and yet, they share a similar pattern with respect to public fury, political blame games, and demands for instant justice in the most extreme form of punishment, i.e., capital punishment.

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West Bengal Govt's Knee-jerk Reaction

The Mamata Banerjee-led West Bengal government has brought in a new proposed law named Aparajita (one who is unconquerable) that has introduced the death penalty for those convicted of rape if their actions result in the victim's death or put them into a vegetative state.

This approach reflects a broader trend among state governments to introduce stricter laws or add more stringent clauses to existing ones to douse the fire of public outrage over some high-profile rape cases. For instance, Andhra Pradesh introduced the Disha Bill in 2019 following the Disha gang rape case. Maharashtra enacted the Shakti Bill in 2020 in response to the Badlapur sexual abuse case.

Back in the 1970s, there were nationwide protests after the Supreme Court let off two policemen accused of raping a tribal girl in Maharashtra. This case–which came to be known as the Mathura rape case–led to amendments in the then laws against rape. Those protests, and those that followed over the years, played a key role in fighting what we describe as ‘rape culture’ and advocating for legal reforms.

But even with progressive legal reforms, systemic issues of procedural delays amongst others kept haunting the justice system and the women of India. On the other hand, it also contributed to an increasing ‘mob mentality’ and a compulsive affinity of the society at large towards instant justice.

Will the plethora of new laws and increasing inclination towards “fast track” justice effectively combat rape culture? Will hanging the rapists stop such crimes or are they a mere reflection of our collective anger and the urge to punish the accused in the quickest way possible?

Given the long history of the subjugation of women, patriarchal norms, misogyny, sexual violence and suppression of women's freedom through cultural curbs and daily restraints, the rage and helplessness of the public behind the demands for the death penalty is understandable. It takes a volcano an entire process, long and sustained, to eventually erupt.

But do these steps solve the core problem and dismantle the structures that facilitate and nurture rape and violence against women in the first place?

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The Primal Urge for Retribution

The introduction of tougher laws may provide instant solace to those who expect harsh punishments for such crimes, but from the point of view of the government–the agency eventually and ultimately responsible for the safety and freedom of each citizen–it appears to be a reactionary, knee-jerk decision.

The best of our legal minds have over the years convincingly argued that the death penalty does not act as an effective deterrent against rape, unlike what appears to a large section of our masses.

One can take a look at Uttar Pradesh to understand this in the present context. Ever since Yogi Adityanath took over, he has introduced a system of instant punishment, more so for those accused of sexual crimes including rape. In many cases, those accused of sexual crimes have been shot in what the government calls “encounters” but are essentially staged extra-judicial shootings.

Not only does this approach of shooting the rape accused undermine the rule of law, it also does little to change the pattern of crimes against women, let alone act as a deterrent. The punishment through the ‘bullet’ for rape-accused persons is not legal but it captures the sentiments that are behind the loud demands for the death penalty.

Another example that illustrates the hasty reaction from the state is the 2019 Hyderabad doctor rape case. A veterinary doctor was brutally raped and murdered by being set ablaze on the outskirts of Hyderabad. After the accused were arrested in the case, they were killed in a staged encounter where the police argued that they were trying to escape from custody. The Supreme Court later found that the encounter was staged, highlighting the risks of such impulsive actions.

The primal urge to react with retribution is all too familiar to humankind. Many societies even endorse it. It is true that such violent crimes, reported to the last gory detail of brutality by our TRP-hungry media, push the society at large towards helplessness and shake the conscience of many of us.

But is the objective here truly deterrence and long-term change, or merely short-term punishment to appease the raging public? That's the question we need to ask ourselves. As research about other violent crimes has shown, the death penalty does not bring about any remarkable change in the way these crimes occur or are perceived.

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What About Reformation?

In the US, Justice Stewart in Furman v Georgia, seminally noted in 1972, “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.”

This logic became the basis of modern-day jurisprudence on the death penalty and has prompted the apex court in India to time and again deliberate upon the need for the death penalty. In our country, the criteria for the death penalty have long been about the “rarest of rare” cases. The criteria for determination of the same was found in landmark judgments like Bacchan Singh v State of Punjab, which was later cited in Machhi Singh And Others v State Of Punjab.

Of late, the judiciary has witnessed a major shift in the arena of capital punishment-related jurisprudence, especially through Manoj v State of MP. Implicit in this shift has been the understanding that criminals are not a product of only their own decisions, but also of the state and society’s failings, which is why an accused should be entitled to a chance at reformation.

A product of the state and the society, ie, a society that is patriarchal at its core, where power dynamics are heavily skewed towards men, where the culture of casual sexism and misogyny is as rampant as life itself, where a belief that women are property and thus can be infantilised is normal. In such a world, one wonders how, when a man is celebrated for his achievements on a stage, heavily indebted, he turns towards his kin and peers to give due credit to his surroundings and family, but when the same man degrades and commits a crime, the onus is on him alone. Isn’t that ironic?

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All of this calls for systemic, radical change which hits at the very core of this structure, and a consistent feminist struggle is the need of the hour, a struggle that addresses the interplay of caste, gender and class.

The state here has an important role to play. Articles 38, 39, and 39A of the Indian Constitution bind the state in its performance of the task of governance, to ensure the right to be protected from sexual harassment and assault.

If we truly aspire for this juncture to be a turning point in history, it is high time we look for a more sustainable model of justice, transformative in nature, addressing both systemic and structural violence while also offering a compassionate and trauma-informed approach to survivors and victims. 

It is only through this genuine realisation and commitment to accountability by each participating actor of the system, especially the state and the judiciary, can we achieve the meaningful change we seek.

(Vertika Mani is a lawyer and human-rights activist based in New Delhi. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)

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