A file photo, of Indian activists in Mumbai holding placards demanding rapists be hanged(AP)
A file photo, of Indian activists in Mumbai holding placards demanding rapists be hanged(AP)

Death for child rapists will not be a deterrent

In focusing on death penalty as the ultimate measure of justice to victims, we lose sight of the restorative and rehabilitative aspects of justice
By Faizan Mustafa
UPDATED ON MAY 01, 2018 03:33 PM IST

“Listen to the voice of justice and of reason! It tells us that human judgments are never so certain as to permit society to kill a human being judged by other human beings …Why deprive yourselves of any chance to redeem such errors? Why condemn yourselves to helplessness when faced with persecuted innocence?” Maximilien Robespierre argued in the French Assembly two centuries ago.

In 18th-century England, pickpocketing was punishable with death. Even when the offender was being hanged, there were sharpers ready to pick the pockets of spectators at the scene of the execution. This shows how ineffective a deterrent death penalty has been and therefore, Chief Justice Gita Mittal of Delhi High Court was right when she asked the government for scientific proof of death penalty as an effective deterrent in cases of child rapes.

Our government, after every heinous crime, simply amends applicable laws by providing death penalty. In the case of the Kathua victim, since it was a case of rape and murder, death penalty already existed . This ordinance is thus nothing more than a symbolic gesture. Around the world, Rightist regimes have favoured retribution. Accordingly, a few days ago, the BJP government favoured continuance of hanging by death in the Supreme Court but it doesn’t appreciate that death penalty cannot be justified on the grounds of retribution or deterrence or incapacitation or proportionality. The notion of “an eye for an eye, tooth for a tooth” has no place in our constitutionally mediated criminal justice system.

Imposition of the death sentence to satisfy society’s cry for justice or even in tragic cases such as the one in Kathua must be rejected as it will never reduce incidence of child rapes.

Even the JS Verma Committee to review laws for sexual crimes did not recommend death penalty for rapes. In fact, if the same punishment is provided both for murder and rape, many perpetrators of rapes will prefer to kill the victim with extreme brutality in order to destroy evidence. So, this ordinance is against the interests of our daughters. Ideally we should improve our investigation process so that the conviction rate goes up from the current 3%. We should create dedicated children-friendly courts so that a rape trial doesn’t become a traumatic experience for the survivor. Also, in 98% cases of child rapes, the perpetrators are known to the victim and the victim may not want death for the rapist.

As many as 142 countries have already abolished the death penalty in law or practice. In the whole of Europe, just Belarus has retained it. By retaining the death penalty, India will be in the dubious company of Iran, Iraq, Saudi Arabia and China. Unlike other countries, India retains death penalty for as many 35 crimes under various penal provisions. Even retributive Islamic law provides capital punishment for less than half a dozen crimes.

One person is awarded the death sentence every third day in India. Even the Supreme Court has admitted that this is an unusually high number. With the death penalty for child rapes, this will only go up. The Law Commission of India, in its 262nd report, favoured the abolition of death penalty for all crimes except those related to terrorism. Moreover, there is no evidence of any link between successfully fighting terror and the death penalty. Britain abolished the death penalty at the peak of terror activities by the Irish Republican Army. After Yaqoob Memon’s execution in 2015, the Rajya Sabha, in response to a private member bill by D Raja, resolved to discuss death penalty but never took it up.

It is also questionable whether death is a punishment at all. Caesar’s answer is in the negative: “So far as the death penalty is concerned, I can say with truth that amid grief and wretchedness death is a relief from woes, not a punishment; that it puts an end; to all moral ills and leaves no room either for joy…To kill is not to punish…If by death we cut off his joys and happiness in the same measure we cut off his sorrows and humiliation…death is an asylum, impregnable against punishment.”

In focusing on death penalty as the ultimate measure of justice to victims, we lose sight of the restorative and rehabilitative aspects of justice. Let us not be bloodthirsty as a nation.

Faizan Mustafa is vice-chancellor, NALSAR University of Law

The views expressed are personal

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