The Supreme Court on Monday upheld capital punishment for the accused in the 2012 Delhi gangrape, rejecting the review plea filed by three of the four accused. The apex court asserted that it found no new grounds for a rethink on its May 2017 decision to award capital punishment to four accused in the brutal rape and murder of 23-year-old paramedic that triggered a nationwide outrage.
While the accused still have the option of seeking presidential commutation of their capital punishment, women’s rights activists and law practitioners have once again opposed the practice of awarding capital punishment. Speaking to Youth Ki Awaaz, they noted that the certainty of the punishment and not the severity will help in deterring offenders.
“I strongly oppose the capital punishment. It’s a barbaric practice and doesn’t change anything on the ground. We saw capital punishment in the Dhananjoy Chatterjee (2004) case and still, Nirbhaya happened. And even after Nirbhaya, we haven’t been able to stop the rapes. There’s hardly any evidence that capital punishment creates a fear of law among citizens,” asserted Advocate Deepika Singh Rajawat, the Counsel representing the Kathua rape victim’s family.
Reiterating Rajawat’s opinion, New Delhi-based SC lawyer and women’s rights activist Shomona Khanna told Youth Ki Awaaz, “There should be certainty of punishment. There is a culture of impunity among the offenders. They know that they may or may not be caught. The case may or may not be reported. And even if the case is reported the chances of them getting acquitted are very high. If people believe that capital punishment is the way for India to shed the label of the most dangerous country for women in the world, then they are sadly mistaken.”
These views are further substantiated by the Report No. 262 of the Law Commission of India on the death penalty: “After many years of research and debate among statisticians, practitioners, and theorists, a worldwide consensus has now emerged that there is no evidence to suggest that the death penalty has a deterrent effect over and above its alternative — life imprisonment.”
The report further adds: “In focusing on the death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system.”
Despite amendments to laws after the 2012 case, there is no sign that crimes against women are abating. The National Crime Records Bureau (NCRB) data reveals that incidents of child rape have witnessed a sharp spike of 82% from 2015 to 2016. Delhi alone has witnessed a 31% rise in incidents of rape in the last five years. Interestingly, these incidents are just the tip of the iceberg as many cases of assaults go unreported. Women’s rights activists and comparative analysis by few media organisations claim that over 90% of crimes against women go unreported.
Experts have held the abysmal state of the criminal justice system responsible for this regrettable situation. They noted that death penalties in a few cases like Nirbhaya that catch media attention act as band-aid measures to pacify the collective outrage of the country.
Rajawat, who is currently battling against all odds to get justice in the Kathua rape case, highlighted the many difficulties in getting justice in cases of crimes against women. “There’s underreporting of crimes against women. Even after a case is reported, the investigation and subsequent justice is a tedious task. Basic provisions like a lady investigating presiding over such cases or due legal support to the victims are not followed. Moreover, the police lack the sensitivity to deal with such cases. It is very common that witnesses turn hostile. Furthermore, to aggravate the situation there’s a struggle to get justice in the courtroom as more often than not the defence lawyers try to strike a compromise. All this together makes getting justice very difficult,” she noted.
Apart from the underreporting of cases of crime against women and the arduous task of seeking justice for the victims, the critically poor conviction rate is another issue that needs immediate attention. According to the 2016 NCRB report, the conviction rate for crimes against women hit record low in 2016. While the overall rate of conviction in the country was 46.2%, it was merely 18.9% for crimes committed against women.
Furthermore, experts highlighted the government’s failure to utilise funds allocated for the speedy justice in rape and sexual assault cases. Earlier this year, an RTI reply revealed that only 30% of the much-hyped Nirbhaya fund, running up to ₹3,100 crores, has been used so far. The Nirbhaya Fund, released as an aftermath of the 2012 Delhi gangrape, is dedicated for implementation of initiatives aimed at enhancing the safety and security of women in the country.
“One-Stop Centres that were supposed to be set up to address the rising cases of sexual assaults on women are not in place. The targets haven’t been met and even the existing centres are in pathetic condition. Unless all these failures of systems are addressed we can’t even think of reducing crimes against women,” Khanna pointed out.
The government needs to focus on building capacities of the law enforcing agencies, introducing gender sensitivity in the education system, creating a vigilant and efficient criminal justice system, and curtailing the culture of hatred going on in the country, say law practitioners, activists, and theorists.
“Government has simply bulldozed capital punishment ordinance, while there is no focus on fixing the inconsistencies in our system. The legislators openly make hate speeches that influence the mob mentality. Crimes like lynching and rapes are byproducts of such mentality. From education to investigation mechanism everything needs to be looked into if we are at all serious to reduce crimes against women. Hanging a couple of accused only to silence countrywide outrage is an ill-conceived approach,” argued Rajawat.
Talking about building capacities of law enforcement agencies, Ravi Kant of NGO Shakti Vahini said, “Go 40km beyond Delhi and one can easily see the poor state of law enforcement agencies. We need to build capacities. Pump in financial resources to beef up our investigating agencies and modernise forensic laboratories. Hanging people on gallows wouldn’t help.”