The decision by the Supreme Court to uphold the death sentence of the four men found guilty in the gangrape and murder of a 23-year-old woman in a moving bus in Delhi — which resulted in an appallingly painful death in December 2012 — is once again making headlines. With the heated discussions on the execution of the Nirbhaya convicts, a lot is being said. The death penalty conversation has been talking about everything except on how to counter the prevalent rape culture in India.
The present discourse around death penalty has taken a sad turn, as it revolves around retributive justice instead of proactive justice. Most people speaking against the death penalty are being attacked for being sympathetic towards the convicts, whereas that is not the case.
Kangana Ranaut attacked Indira Jaising, by saying that Jaising should be kept in prison with the four rapists for four days and, that women like Jaising are the ones whose wombs create sons who are rapists.
Kangana Ranaut attacked Indira Jaising, by saying that Jaising should be kept in prison with the four rapists for four days and, that women like Jaising are the ones whose wombs create sons who are rapists. While it is true that Jaising’s statement was problematic and that she had no right to tell Asha Devi, Nirbhaya’s mother how to feel; Ranaut’s comment further perpetuated the misogyny women are subjected to every day. Calling for sexual violence on another woman is despicable, and such discourse only points to how misogynistic barbs are thrown at death penalty condemners. Jaising is a well-known feminist lawyer at the forefront of fighting rape and sexual harassment, and to imply that a mother’s womb is somehow responsible for raising a rape convict simply puts the onus back to women and their (failure) to do unpaid care work.
It is unfair to put the onus on the mother which reiterates a very sexist trope about mothers being solely responsible for the caregiving of a child, and also perpetuates the very logic behind various cultural issues, like that of foeticide, and women being brutalised for infertility issues. Sexual offenders are raised by the society in which they live: sexist movies, patriarchal misogyny and the striking rape culture all around us.
Opposing Death Penalty ≠ Sympathy For Convicts
Another conversation about death penalty is that, which assumes an opposition to capital punishment is somehow a sympathy towards the convict. This is not only untrue, but illogical. If the said opposers were sympathetic towards the 4 convicts, a release would be plead for, but there is instead, an opposition to state sponsored death sentences or legitimised killing of convicts. Among many reasons, the most significant is the fact that the death penalty is not a deterrent against crimes, as says evidence from across the world.
India currently has 426 people on death row. Regardless of how heinous the crime is, every human being has an inalienable right to life and possesses the potential for reform, if only the state and society will commit themselves to it, rather than kill. Moreover, the state is trying to distract by creating an ‘illusion of justice’, by selectively hanging people even as it protects others responsible for similar crimes. The Justice Verma Committee, which was set up immediately after the December 2012 incident, stood against death penalty for sexual assault, and as did the Law Commission of India in its 262nd Report on The Death Penalty in 2015.
The Problem with Death Penalty
Death Penalty in rape cases
Death penalty is in itself unethical, but why it is wrong for rape is multifaceted. The two main problems with death penalty for rape are: that it diverts attention from structural misogyny that makes India unsafe, and that it takes away from women’s rights by keeping the discourse grounded in “protecting women.” The death sentences sadly do not eliminate violence against women. There is no indication that the death penalty acts as a barrier to sexual violence or any other offense. Instead, the government needs to devote enough resources to enforce legislation efficiently, increase conviction rates, and ensure legal fairness in all cases. The Justice Verma committee, had also observed that the death penalty raises victim killings, instead of alleviating the problem of rape.
The two main problems with death penalty for rape are: that it diverts attention from structural misogyny that makes India unsafe, and that it takes away from women’s rights by keeping the discourse grounded in “protecting women.” The death sentences sadly do not eliminate violence against women.
Death penalty is far from a deterrent. Within India, the bare truth is that even after Auto (Gowri) Shankar was executed by the Indian state in 1995, Ranga and Billa (Kuljeet Singh and Jasbir Singh) in 1982, and Dhananjay Chatterjee in 2004 for rape and murder; sexual assaults and killings remain unabated. In America, where the implementation of the death penalty ranges among jurisdictions, homicide rates are 48-100 percent higher among states with the death penalty relative to those without it.
Justice and safety are not achievable by knee jerk reactions and short cuts. Death penalty often becomes a short cut when there is actually a need to focus on long-term social reform, and the failure of the state to ensure women’s security. The only way to stop these offences is the assurance that the criminal justice system will operate against each person with dignity, transparency, diligence and consistency, regardless of their religion, social standing, class, caste.
Unfortunately, sexual assault comes with far more percentage, and far more impunity in India, especially against Dalit and Adivasi women, workers in the unorganised sector, women with disabilities, hijras, kothis, trans and gender queer physiques, and sex workers. A large number of women in conflict areas such as Jammu & Kashmir, Manipur and Chhattisgarh have been, and continue to be, equally attacked. There is a need to recognize the ubiquity of this type of violence against women, and to create penalties that serve as real punitive measures to the very large number of men who commit such crimes and get away with them.
A report published by National Law University, Delhi reported that 76 percent of Indian inmates on the death row belong to marginalised castes and religions, with all 12 women inmates also from marginalised castes and faiths. 74.1 percent of the prisoners sentenced to death were ‘economically vulnerable’ (based on their occupation and landholding), and 76 percent belonged to deprived groups and religious minorities. Whereupon 63.2 percent of them in their family were primary and/or sole earners. “Prisoners sentenced to death in this country were almost always disadvantaged and belonged to oppressed sections of society.” The death penalty process is then, not conducive to a fair trial. It further shows that 80 percent of prisoners in their study were meted out custodial torture inducing “extreme forms of physical and mental suffering.” Project 39A records a prisoner saying, “When someone is tortured as I was, it doesn’t matter if you’ve done it or not, you’re going to agree to end the torture.”
In the case of December 2012, intruders perpetrated abuse against the woman, which understandably sparked a broad debate about women’s safety in public spaces. But, most sexual crimes are committed by family members, neighbours, colleagues, friends, guardians and other acquaintances. No discourse has been struck regarding the safety of women in their own spaces. Capital punishment is known to make it harder for victims to report people they know. Family members, friends, etc.
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 political structures at play.
Featured Image Source: Wall Street Journal