SocietyLaw & Policy Why The Death Penalty Just Needs To Go. For Good.

Why The Death Penalty Just Needs To Go. For Good.

In an already botched legal system, where justice is a rather biased entity favouring the already privileged, the death penalty then is a ruse to silence questions about the larger bigoted structures at play.

On the 15th of April, I attended the #NotInMyName protest at Parliament Street, New Delhi, which demanded justice for Asifa Bano and the Unnao survivor. This was an open call, asking people to rally together for a larger cause. However, I saw something there that deeply disturbed me.

A bunch of people, not too far from the stage, got together while holding the Indian flag and screamed themselves hoarse demanding the death penalty to rapists. The fact that state-sanctioned murder should have nationalist hues embedded in it was being rubbed in our faces. What was even more disturbing was that in the midst of so much bloodshed and violence, the idea of justice then was to inflict even more bloodshed and violence.

Fuelling more violence through ‘activism’

What aspirations can we then encompass when it comes to the functioning of democracy and law? Are we as a society to have a collective knee-jerk reaction to an incident(s) of barbaric violence, when it comes to the deliverance of justice?

The gangrape and murder of Asifa Bano also triggered a wave of Islamophobic anger, when the Hindutva brigade (denial, textbook ‘whataboutery’ – pointing out each and every alleged flaw in Muslim society) and liberals (demand for death penalty for rapists, minor perpetrators included) alike were no longer able to ignore the communal nature of the incident. Such are the moments of ‘activism’, which are used to further perpetuate violence.

in the midst of so much bloodshed and violence, the idea of justice here is to inflict even more bloodshed and violence.

Campaigns, strikes, hashtags on social media – varied tools to avail of social justice and betterment have been appropriated in this knee-jerk demand for more death. Swati Maliwal, the chairperson of the Delhi Commission for Women, flagged off a campaign titled #RapeRoko and went on a hunger strike wherein she demanded the death penalty for rapists. As an important member of a statutory body for women’s welfare, Swati Maliwal is undoing years and years of the feminist struggle against the death penalty.

Yes, #RapeRoko, but how? Will the death penalty end misogyny and sexual harassment? Will it end Brahmanical patriarchy? Will it end institutionalised murders? Will it end Islamophobia and other instances of communal hate so that Asifas all over the world will be safe? Will it end corporate greed for land? Will the death penalty protect vulnerable tribal communities? Will the death penalty enable gender sensitisation in perpetrators and would-be perpetrators alike?

The zig-zagged path of law

In their hurry to seem like they are going about the path of justice, the central government, in an “emergency meeting”, passed an ordinance in which the death penalty is applicable to those guilty of raping children under the age of 12. This ordinance, called the Criminal Law (Amendment) Ordinance 2018, affects the Protection of Children from Sexual Offences Act (POCSO), Indian Penal Code, Evidence Act and the Code of Criminal Procedure.

According to the National Crime Records Bureau, as of 2015, India’s conviction rate for rape is 34.4%; assault against women is at 36%, insult to the modesty of girl children stands at 33.1%; and the kidnapping and abduction conviction rate is 31%. In cases of child sexual assault, 94.6% of cases are those where the perpetrator is known to the victim. What happens to the survivor when no one believes them, or when they feel saddled with the guilt of reporting their family members? Did the Centre take these dismal statistics into consideration before hurriedly evoking their ability to take lives?

An article in the Indian Express further highlights the various ways in which this ordinance can further cause damage by stating: “The rate of conviction was highest in cases which took over two years to complete, because, practically, it takes that much time to record the evidence of all the witnesses. In light of this, the fact that the ordinance reduces the time given to the police to file a charge sheet, and to the court to decide appeals against sentencing, displays a complete lack of understanding about the issues on the ground and a disturbing disregard for whether a law is implementable.”

Also Read: No, We Can’t Stop Communalizing Asifa Bano’s Rape. Here’s Why.

To add to the gravity of the situation, President Ram Nath Kovind signed off on the ordinance. The President of the country has the power to reject mercy pleas. The President is also in a position of power to send back recommendations (about impending executions) to the Home Ministry, delaying said executions. Under Article 72 of the Indian Constitution, the President’s powers are not bound by legal procedure. Under Article 74, Courts are barred from inquiring into how the President arrived at their decision.

This hurried manner of legal redressal is open to innumerable gaping flaws. The Delhi High Court questioned the Centre as to whether any research was carried out in this process. Acting Chief Justice Gita Mittal and Justice C Hari Shankar asked, “Did you carry out any study, any scientific assessment that death penalty is a deterrent to rape?” The High Court also observed that the government had not reached out to survivors of sexual violence, or done anything to enable gender sensitisation among people at large.

Ethics and the death penalty

In the last decade, the mercy pleas rejected and executions carried out had a troubling pattern. Out of the 4 executions, 3 of those executed were Muslim: Ajmal Kasab (2012), Afzal Guru (2013), Yakub Memon (2015); and Dhananjoy Chatterjee (2004). As of December 2017, 371 prisoners have been placed on death row, a significant drop from the number 399 in 2016. However, the Islamophobic nature of executions is glaring, which brings to question whether judgements will be free of communal bias.

No government should be allowed to dispose of lives.

A report released by National Law University Delhi revealed that 76% of Indian prisoners on death row belong to non-dominant castes and religions, with all 12 women prisoners also from non-dominant castes and religions. 74.1% of the prisoners came from economically vulnerable families. Wherein, 63.2% of them were primary and/or sole earners in their families.

More importantly, the State does not have the right to violate someone else’s Right to Life – the most fundamental human right. No government should be allowed to dispose of lives. The death penalty is a form of revenge, not justice. There is no evidence to suggest that the death penalty will deter crime. We cannot trust a system that prioritises retribution over proactive prevention and grievance redressal. Appealing to the “collective conscience” and angry sentiments of the public at large is only further fuelling the now normalised lynch mob culture.

To sum up, the death penalty is just lazy politics. It is a quick fix for the State in order to not have them deal with social deterrents that are misogynist and communal in nature. In an already botched legal system, where justice is a rather biased entity favouring the already privileged, the death penalty then is a ruse to silence questions about the larger bigoted structures at play.

Also Read: #JusticeForZainab And Our Collective Complicity In Rape Culture

Featured Image Credit: Scroll


  1. Aastha says:

    Hi Mahika! Thanks for your article. Just wanted to throw my two cents here. To deter from future crime is not the only purpose of punishment. There are many different theories for this – other purposes of punishment include justice for the victim, and the provision of just consequence of commission of the crime. Recommend reading some books on the theories of criminal law – it’s fascinating!

    I agree with you that the death penalty alone will not end misogyny and patriarchy in Indian society – but neither will abolishing it. That has to do with something larger, a generational change in mindsets that can only be achieved through education and employment opportunities – basically anything that gives meaning to the lives of the hundreds of millions in India.

    Death penalty in cases of crime such as the rapes that you were protesting – is absolutely necessary because it is deserved consequence of the crime – even though it has been shown to not have a measurable effect on deterrence.

    PS re your argument of the State taking away the right to life through the capital punishment, it’s not as simple as that. If you read Art 21 of the Indian constitution, which is the right to life – you will see that the theory of due process has been incorporated into that. and this theory is satisfied by the doctrine of “rarest of rare case” followed by the judiciary in awarding death sentences.

    • Mahika Banerji says:

      Hi Aastha, thanks for the feedback. Duly noted.

      My issue with death penalty lies in quick fix redressals, in order to seem like something is being done, and evade dealing with larger structural problems. Also, I just cannot bring myself to come to terms with the fact that a state should have the right to dispose of a life. That too such a communally motivated state where people from socio-economically vulnerable communities become easy targets.

      • Aastha says:

        Hey there! Thanks for your reply. I completely agree that the government has to be accountable to follow the law. The law being Art 21 in this case. But when the government is so untrustworthy and communal elements are routinely encouraged, I find it hard as well to trust them to apply the law in the way that it is meant to be.

        I still have hopes with the judiciary, but with the recent scandal of the government refusing to confirm a judge in the SC recommended by the collegium makes me think that even that might soon be a thing of the past. Sigh. So much is wrong with our country!

        So in conclusion, I support the death penalty with respect to crimes that deserve it such as Nirbhaya and these rapes as well; and I also agree that the application of the law needs to be free of communal and populist sentiments – as you have rightly pointed out. Great article though, and keep them coming:)

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