Facing tremendous criticism in the wake of Unnao and Kathua rape incidents, the central government has responded by promulgating an ordinance bringing in key changes in the laws related to rape. The Criminal Law (Amendment) Ordinance,2018 seeks to incorporate death penalty in case of a rape with a girl child below 12 years of age. Apart from this, the said ordinance also provides for punishment of imprisonment for the “rest of life” of the convict in case of a gang rape with girl below 16 years of age. It also lays down several other stringent conditions such as disallowance of anticipatory bail for those accused of rape or gang rape of a girl child under 16, definite deadlines within which the investigation and trial must be completed etc. For instance, it stipulates a time limit of two months for investigation and trial and six months for the disposal of appeals in rape cases. While some of these measures, especially those related to expeditious trial, were long overdue and are a positive step, the debatable or rather controversial part is related to the efficacy of imposing death sentence in cases of rape. Although the argument for capital punishment looks quite convincing, especially in the current atmosphere of public outrage, the long term repercussions of the move must also be criticially and dispassionately deliberated upon before reaching a conclusion. The questions which must be asked are – Is the capital punishment effective deterrent against rape? If not, then what should be the long term policy measures that the government and the society can adopt to end the menace of rape?
Why is capital punishment a bad idea?
Madhumita Pandey carried out a research wherein she interviewed over 100 rape convicts in Delhi’s Tihar Jail and ultimately the conclusion that she drew was that rapists are manufactured, not born, by a society which treats women as property and not as individuals. The point here being that, often in public opinion those who do the heinous crime of rape are perceived as some out of the world “monsters”, but the reality is that over 95% of rapes are committed by people who are known to the victims – often family members or relatives or neighbours. As crude and controversial it may sound but there are “potential rapists” everywhere in the society. Rape therefore is a social evil, a manifestation of domination, of power indeed, of a mindset which views women as subordinates or as mere commodities of meant to fulfill sexual pleasure.
Moreover, there can be other adverse implications of imposing death penalty as well. For example, there is an apprehension that if the punishment for murder and rape will be the same, then it may incentivize the rapists to escalate the crime into a murder, in order to prevent the girl from speaking out. Also, since most of the cases involve a known person, there is a huge likelihood that after the introduction of death penalty the reporting of rape, which in the recent years has increased significantly, may also come down. Although, there is no concrete research which could numerically ascertain the number of cases that still go unreported but given the nature of the crime of rape and the stigma attached to it, the dominance of patriarchal notions of “loss of honour” of a rape victim and a “permanent stain” on her family’s dignity, it could be safely claimed that a very vast majority of rape cases still go unnoticed. This is when at least 136 cases of rape are reported every day, as per the NCRB data. So the magnitude of the problem is horrifying and the imposition of death penalty may further make rapes “invisible”. Lastly, the NLU Delhi report also highlights that in India, the death penalty is disproportionately imposed on vulnerable sections of the society – the uneducated, lower class and lower caste people. According to the study, 74% of those on death row belong to backward classes and religious minorities while 76% belong to economically vulnerable group. Hence, when there are so many complexities or flaws in the administration of justice, death penalty certainly cannot be made the ultimate cure to disincentivize child rape.
What are some better ways of dealing with this issue?
Since the Nirbhaya case of 2013, out of over sixty four thousand case of child rape, conviction happened only in about eighteen hundred. That is less than three percent of the cases. Even in the cases which came in media highlight such as the Nirbhaya case or the Shakti Mills case of Mumbai, the process of trial was tardy. Hence, what needs to be done is not a mere enactment of deadlines, but the actual enforcement of those deadlines. For that to happen, the focus needs to shift on better investigation and lessening the burden on judiciary. Also, emphasis needs to be laid on the proper rehabilitation of the rape survivors, as rape inflicts just physical injury but also deep psychological trauma which can be healed only if right care is provided through specialised institutions. The role of society also becomes important here because the stigmatization attached with rape must go away. This can only happen when society collectively takes effort to properly educate and sensitize children from a young age. Proper child rearing practices, where parents teach their sons to respect girls, treat them as equal individuals and partners is the only long term solution. As it mentioned above, rape is a social evil that will not end by mere legislations, it will end only when the hegemony 0f patriarchy ends, which in turn can happen only when both the government and the society work together.
Picture Credits: Ipleaders