Rangan MajumdarA final year law student at Government Law College, Mumbai Trigger Warning: Death Penalty; Rape; Child Sexual Abuse The Shakti Bill, 2020, which was cleared by the Maharashtra state cabinet, was welcomed by India, as a progressive step towards solving crimes against women and children . One of the key features, the prescription of death penalty as an alternative to life imprisonment on the higher end of the punishment spectrum, grabbed headlines. The proposed amendment made the punishment for rape under Section 376 and the aggravated Sections of 376D, 376DA, 376DB, and 376E, equivalent to punishment for murder under Section 302. Interestingly, the Statement of Objects and Reasons, which serves as a very important tool of interpretation of the amendment, itself admitted that despite the many changes in law, crimes against women and children specifically with regards to sexual offences have only increased manifold. The question is right in front of us, then. Does a retributive approach towards sanctioning punishments really help in reduction of offences against women and children? Problems with a Death Penalty in this regard are one too many: 1. The Dilution of Deterrence and Reformation Punishment is a tool that is often used by the State to deter citizens from engaging in certain acts which are against the norms of a civilised society. Regulation of social behaviour happens best, when you have a value of deterrence in the punishment you are handing out. Sure, one can argue that a Death Penalty is the highest level of deterrence in criminal law but normalizing it as a penalty offers no value in its deterrence. Look at the evolution of penal laws in India. In 2013 after the infamous case in Delhi, the definition of rape was expanded, and the minimum punishment was kept at 7 years extending up to life imprisonment. In 2018, another amendment came in, and replaced the minimum punishment with a stricter 10 years in prison. However, there is little difference in the mindsets of the perpetrators, as has been observed by government data itself, in terms of the sheer explosion of crime numbers. As per the latest NCRB report, around 32,033 cases (88 in a day!) were reported in 2019, 33,356 cases in 2018 and 32,559 cases in 2017. And this is not even the real picture as the majority of the cases go unreported. Deterrence has lost its value. Punishments are not helping. Criminals are not reforming. 2. The Hijacking of Conversations Around Root Problems It has not even been a whole month now since the Shakti Bill was approved by the State Cabinet and yet, we see people on social media and all over the world heap praise on the Maharashtra government for the bold step. If Death Penalty is not the way, as has been illustrated above, then the celebration of the imposition of one sanctioned by state is equally bad, if not worse. The space for discussing causes that motivate perpetrators or that of reducing the investigation time frame to a mere 15 days to carry out complicated processes of evidence gathering, analysing data and taking statements, has effectively been hijacked. The discourse in national media is no longer about whether the law actually solves problems but of a tokenistic celebration of dealing with heinous crimes in a half-hearted manner. 3. Encourages Perpetrators to Commit Murders Equating the punishment for murder with that of a rape only encourages perpetrators to inflict far more damage and commit murders. Because even if deterrence or the fear of punishment lingers in the mind of the perpetrator, the incentive for destroying evidence and getting away with ghastly crimes motivates them in that fashion. Hence, the impact of these stringent provisions is counter productive to the Objects and Reasons of the Bill, that is to reduce violence and crimes against women and children. If not the conversations around Death Penalty, then what are the conversations we should ideally be having? A. Insensitive Justice System
Our justice system is not just broken, but also very far from being gender sensitive. The processes of taking victims statements, handling of witnesses and the questions that judges ask to a victim in live proceedings, are not just insensitive, but also severely sexist and often help the perpetrator. There are many instances wherein consent is assumed by the Bench due to questions related to “circumstances” which suit the perpetrator best, because of the ingrained patriarchal upbringing that nobody escapes, even if you are an Hon’ble Judge, tasked with helping the victim. Hostile behaviour of the law enforcement bodies towards witnesses and victims with regards to inappropriate questions or lack of empathy often terrorizes them even more. We, as a society, and more importantly as the last resort of the victim for seeking justice, have failed to make the victims safe in an environment, which is made specifically to help them. B. Inefficient laws to reduce influence of caste, religion, politics and gender One of the most important reasons for why a Death Penalty, or for that matter, any penalty, will never be effective, is the overwhelming sense of impunity and invincibility that privileged individuals enjoy in society. Conviction rate for 2019 was at 27.2%. The perpetrators know that the law can never catch up with them because of the relative privilege and influence they have over law enforcement bodies, or the justice system, which gives them that sense of impunity. As long as the perpetrators are armed with these unchecked influences over a flawed justice system, we can never hope for convictions to be easy. C. Retributive Justice Overshadowing Social Reform A Death Penalty kills the perpetrator, but not the mindset. Sexism, gender stereotyping, gaslighting, mansplaining and objectification are products of organised patriarchy so deep rooted in Indian culture, that India ranks at the bottom of the pile when it comes to safety for women. Retribution gives us a sense of achievement as a society. When Kasab was executed for the 2008 attacks in Mumbai, we celebrated the death of the person who wrecked the financial capital and in it, many lives and households. But nobody bothered to question why Pakistan has that mindset against India. Not a single politician in the country had a debate on the causes of radicalism, without making it about political goals of defaming a religion. The same is the case with Death Penalties in sexual crimes. We punish the individual but ignore the cause. Celebration, hence, leads to overshadowing any attempt at social reforms which could come through sustained dialogue and consultations with women’s groups to frame policy around those issues. The Bill has not been tabled in the State Assembly yet, so there is still hope that our elected representatives reconsider the consequences, but given the nature of politics in India which prefers tokenistic gains of optics as a priority, it would take more than a few speeches to move them. Please note that this is NOT legal advice but the legal opinion of the author and is for informational purposes only.
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