“Hang the rapist.”
These words rightfully captured the strong, visceral reaction from the public to the news of the gang-rape of a 23-year old medical student on the night of December 16, 2012. The reaction came soon after former Home Minister Sushilkumar Shinde publicly favoured the death penalty in “rarest of the rare cases”. In that atmosphere, we saw laws being amended to prescribe death in cases where a rape victim died or was left in a vegetative state.
Even today, certain demonstrations marking Dec 16 put effigies in nooses. So when in February 2017, union minister Uma Bharti openly endorsed capital punishment for rapists, it didn’t come as a shock to anyone.
During a rally in Agra last month, she said: “The rapists should be hung upside down and beaten till their skin comes off…salt and chilly should be rubbed on their wounds. That is what I had got done when I was [Chief Minister of Madhya Pradesh].”
Many applauded Bharti for doing what a sluggish criminal justice system couldn’t. But there were many more who termed her actions as unconscionable, amounting to illegal torture.
Bharti’s comments are in no way unprecedented. India has a long and complex history with capital punishment. Since 1995, there have been four very high-profile executions. The first was a serial killer known as ‘Auto Shankar’. After him, it was Ajmal Kasab (2012), Afzal Guru (2013), and finally Yakub Memon (2015). Excepting Shankar, these were all in connection to acts the State identified as terrorism. Including Shankar, they were all also spurred on by public anger and debate.
Looking at these four alone, one might presume executions are the “rarest of the rare” punishment. But according to Suhas Chakma, director of the Asian Centre for Human Rights (ACHR), “awarding death penalty has become routine for courts in India.”
But even if approval for retributive justice (over reformative justice) is widespread, even if leaders like Uma Bharti proudly endorse it, there are some very solid reasons for not endorsing capital punishment:
Despite her impassioned proclamations, the punishments Uma Bharti admits to carrying out did not stop rape from happening. In fact, the National Crime Records Bureau revealed that Madhya Pradesh reported the highest number of rapes in during her tenure in 2003-04. It was also the same year that the state reached a record high of 6,848 molestation cases. MP, in fact, had the second highest number of crimes against women that year, with 14,547 cases registered.
In a 2009 study by the Journal of Criminal Law and Criminology, 88% of criminologists surveyed in the USA said they didn’t believe that capital punishment deterred crime.
Further, the ACHR report shows that the death penalty is usually commuted to life-imprisonment. The reason? Sending someone to the gallows isn’t exactly as easy as one-two-three. This long-drawn procedure requires stronger evidence than others. As a result, perpetrators are more likely to destroy evidence.
A comprehensive statement by civil society members released in 2012 showed that (because of the above reason) convictions would be extremely difficult to obtain. The conviction rate for rape crimes sank from 49.25 per cent in 2012 to 29.3 per cent in 2015, and the death penalty is likely to bring it even lower, instead of checking sexual violence against women.
A few months prior to the 2012 gang-rape, 14 retired judges wrote to former President Pranab Mukherjee about the shocking “miscarriage of justice” under the death penalty laws. They cited sentences of nine persons whose crimes were not against the State, and therefore did not match the criteria for execution.
In fact, the Supreme Court had admitted on three occasions that these sentences were given ‘per incuriam’, or in ignorance of certain considerations, provisions and judgements.
Even in cases where the innocent are wrongly convicted, commuting their sentence becomes increasingly difficult in our byzantine criminal justice system. There is an urgent need for reform, and in 2015, for these and other reasons, the Law Commission of India released a 251 page report on why India should “move towards abolition of the death penalty.”
There is a clear bias at work. Two years ago, researchers at National Law University Delhi compiled a socio-economic profile of prisoners on death row. It found that more than 80% had not completed school, nearly half had been working since before they were 18, and there were a disproportionate number of Dalits, Adivasis, and religious minorities on death row, strongly suggesting that those in positions of power will continue enjoying impunity in cases of violent sexual crimes.
Today, India is one of only a handful of countries where the death penalty has not been abolished. Our company includes Iran, China, Saudi Arabia and the USA.
But the global community does not condone the measures espoused by Uma Bharti and her ilk. Way back in 1984, the United Nations passed the International Convention against Torture, to which India is a signatory. And even though we never joined 161 other countries in ratifying the convention, no one is justified in torturing another human being.
Bharti qualified her comments on torture by saying that rapists were not humans but “demons”, and undeserving of human rights. Perhaps there’s no use exposing the glaring problems behind that logic. Perhaps we should ask – what does it make us when we respond to one human rights violation with another?