Give Sanity a Chance

Capital punishment for rape is a misguided response

The last convict hanged to death on a court’s order before Mohammed Ajmal Kasab in December last year was a rape and murder convict, Dhananjoy Chatterjee. Hanged in a Kolkata jail on 14 August 2004, he had been convicted of the rape and murder of a teenaged girl who was alone at home. He was a private security guard assigned the task of protecting residents of the building where he committed the crime. The case is still etched in public memory, and those who are certain that ‘death penalty’ is the answer to barbaric crimes like rape and/or murder may think Chatterjee’s hanging would have served as a strong deterrent to such barbarism.

Yet, between 2004 and 2011 (the National Crime Records Bureau takes over a year to analyse statistics of reported crimes and so these are the latest figures available), the number of reported rapes in the country went up from 1,510 to 24,807. Overall crime reported in the country over the same period has not shown such a steep increase. Total cases registered under the Indian Penal Code went up from about 1.8 million to 2.3 million from 2004 to 2011.

But then, to argue against death penalty for rape, murder or any other crime by means of statistics is to fall in the same trap of oversimplification that those who demand capital punishment already have.

First and foremost, these statistics pertain only to reported crimes. In India, an estimated 88 of every 100 rapes go unreported. Of the 12 that are registered as cases, only three result in convictions. Regardless of precise numbers, annual reports of the NCRB make it clear that crimes against women are on the rise compared to other offences.

A part of the blame obviously lies with social attitudes towards women, but not entirely. Consider the 16 December Delhi gangrape and murder. The victim and her boyfriend faced lawlessness at every step: auto drivers who broke the law by refusing to take them to their destination, a bus with tinted glasses—despite a Supreme Court ban that the police had obviously failed to implement—that plied that stretch, and inept police patrols along that very road on which the two were subjected to such horror. The occupants of the bus had robbed two other men before they targeted the couple. One of them chose not to go to the police at all, and the other, as the police claim, did not immediately call the police; if he had called 100, they claim, the police patrol would have swung into action and apprehended the perpetrators before they could violate any other law. As it happened, however, the second robbery victim could only muster the courage to approach the police later, accompanied by a friend. So, clearly, not many trust the police because an encounter with the force even for a victim is an intimidating experience.

Low conviction rates only point to how badly the police investigate crimes. It is not the severity of the law, therefore, but the certainty that the law will be applied that serves as a deterrent to criminals or a confidence creator for victims—a prerequisite for the Rule of Law to hold in society. With only three of 100 rapists getting convicted, the debate over making punishment harsher is pointless. For justice to be served, the law needs to work.

Nearly a month after the barbaric crime, there are still vehicles with tinted glasses on Delhi roads and autowallas refusing clients at will. And it is not those who break the law but those who become victims who are scared of the police. Yet, the clamour is directed elsewhere: at stiffening the law to ensure that rapists are put to death. All this, while a bill that proposes a stronger criminal law awaits the nod of Parliament. The agitation, in that respect, is a distraction that those who have failed in their duty are bound to welcome.

The principal arguments against capital punishment are the same for every case, irrespective of the crime: first and foremost, it is a violation of the individual’s right to life. There is a strong case against the State having the right to take away life, which it can neither give, nor, under these circumstances, even protect. Two, it is irreversible. If an error of judgment is made, it cannot be rectified—as the Supreme Court discovered to its horror in seven cases where death sentences were awarded erroneously (two have already been hanged and the fate of the rest hangs in the balance). Three, a society baying for blood is in itself a sign of barbarism. Somewhere, there is an underlying attempt to pass the entire blame onto the culprits. Rather than address the underlying problems in society, this is an attempt to gain closure in a brutal way: by killing someone. Society as a whole and vulnerable sections of it in particular will likely bear the brunt of this turn towards barbarism.

There is another argument against capital punishment, an economic one: hiring the best defence lawyers costs a lot of money. In countries that retain the death penalty, there is evidence to suggest a connection between capital punishment and inadequate legal representation. Simply put, the poor do not have access to expensive lawyers. So there is a good chance that the accused who are poor and cannot afford such defence lawyers will be put to death with greater frequency than those who are well-off.

The truth is, life imprisonment is a reasonable alternative to capital punishment. By sending a hardened convict to the gallows, society glosses over its own failures, but by keeping the same criminal in jail, it at least allows for reformation.

All these are sound arguments. But judging by the clamour for capital punishment that is peaking in India right now, few are willing to listen. Among those who turned out to protest at India Gate and Jantar Mantar against the brutal gangrape, many betrayed only a tenuous grasp of reason. Many of them, in demanding instant beheading or castration of the accused, sounded like a lynch mob. There were also those who broke barricades or burnt public property and yet saw no irony in their loud demands that others—criminals—start fearing the law.

The country’s political class has jumped to the occasion and joined the cries for blood in various forms. Look at the list of those who have called for harsher punishments for rape: Congress leaders Jagdish Tytler and Kamal Nath whose involvement in the 1984 violence against Sikhs in Delhi—which saw both barbaric rapes and gruesome murders—has been probed by commission after commission. And supporting the cause is the Bharatiya Janata Party, which wants to foist upon the country a man as prime minister—Narendra Modi—whose culpability in the 2002 riots in Gujarat is still under investigation.

Everyone everywhere appears to be talking of making punishment harsher, but not of making the law work better. Politicians have mastered the art of deflecting attention. The pending Lokpal and Women’s Reservation bills are cases in point: after another year of political histrionics, they are yet to become law.

But, now that the Government in particular and the political class in general have slipped into a dysfunctional state, are lynch mobs going to decide society’s response to everything? Is Anna Hazare’s public whipping of alcoholics the ‘rule of law’ a civilised society should aspire to? Or is it some TV anchor’s idea of instant justice that will prevail?

Those who demand the death penalty either have not applied their minds to the situation or are those who stand to gain from the distraction that a change in law will result in. Earlier this week, on the same day that the Delhi government issued half-page advertisements in newspapers that featured the Chief Minister and two of her cabinet members proclaiming DTC the ‘safest’ bus service, the same papers reported that a woman police officer in plainclothes was molested and sexually harassed on a DTC bus.

The Delhi Police Commissioner, instead of being shocked and ashamed at the state of affairs, was a picture of smugness when he addressed the media after the gangrape. Ever since he took charge, the Delhi Police has been squandering public money on ads proclaiming how hard it works.

These, the powers that be, are the only people who will gain by instituting a death penalty for rape because it will momentarily draw public attention away from their overall ineptitude.

Victims will not. In fact, it is very likely that rapists will take to killing their victims—since the dead cannot bear witness—if they know they could be hanged on being caught for their crime. That would be the law of unintended consequences kicking in—and it is not the law India needs.

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