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Justice?: Why Death Penalty Is A Weak Response To Structural Violence

On 20th March 2020, at the crack of dawn, the government executed the convicts of the 2012 Delhi gang rape known as the ‘Nirbhaya’ case. This happened despite the families of the convicts pleading for mercy and a stay was requested to be put on the execution. This case saw an unprecedented public protest and outrage in Delhi and in other cities across the country, which is still etched in public memory and led to the amendment of the Criminal Law Act in 2013.

At the end of a seven-year-long ‘fast-track’ trial, when we are delivered a ‘death penalty’ as justice only to satisfy collective conscience, one must not forget that baying for blood will never be an adequate answer to counter the embeddedness of structural violence in the society which affects the quality of women’s lives the world over.

Responses To Rape: For Women’s Security Or The Security Of Patriarchal ‘Property’?

Though this execution is using the trope of women’s safety and rights, we need to understand that the popular outrage against rape in this case and generally in society is often rooted not so much in respecting the bodily integrity of women but the notions of honour and chastity of women. This chastity is seen to be ‘defiled’ by the act of rape. Rape is, therefore, exceptionalised and produces greater outrage than other acts of violence on women, which may be equally brutal and life-threatening.

Is capital punishment enough to deter crimes against women in India? Image only for representation. Via Getty

Therefore, during the public outrage in 2012, feminist voices asking for understanding and dealing with the structural nature of sexual violence on women were drowned by the clamour of demands for the death penalty, castration, etc. To satisfy this sense of public outrage or ‘collective conscience’, a death sentence was pronounced for the convicts, which was justified by the kind brutality meted out to the victim.

But let’s pause for a moment and ask ourselves what the death penalty does or capital punishment means and do; WHAT and WHO is being punished?

The demand for the death penalty for the rape convicts operates on the principle of externalising the problem of sexual violence in our everyday structures and lives and locates it on a handful of convicts identified in the most publicised and brutal rape cases. As if, on exterminating these convicts can rid us of the problem of rape altogether.

Yet rape continues unabated and only becomes more brutal. Are such exemplary punishments not just a Band-Aid for a larger structural problem done to ease public rage over an issue or to reaffirm public faith in the State that refuses to take any effective structural measures for ensuring safety and well being of women?

Often the brutality of the crime and the pain of the victims and survivors and their family are used to make a case for the ‘rarest of the rare’ doctrine to be applied and justify death penalty or its demands. But we should bear in mind that the crime which is considered worthy of being treated as ‘rarest of the rare’ is constituted more by social and political exigencies than by any real response to pain and brutality inflicted.

Often it rests both on the identity of the victims and perpetrators. For instance, the brutal sexual violence regularly meted out to women from marginalized communities or the sexual violence committed by the army and the police in Kashmir, Bastar or the northeast seldom provokes such public outrage.

Demands for death penalty are seldom made if the perpetrators are from socially and politically powerful backgrounds and more often enjoy state impunity as is painfully demonstrated in the recent Chinmayanand and Unnao rape cases. The argument here is not to ask for death penalty in all cases equally, but understand the politics and the nature of public outrage generated in certain cases which are used to determine and justify capital punishment.

It is much easier to demand and pronounce a death sentence on people coming from already marginalized backgrounds. Be it the overemphasis of the name Mohhamad Arif in the recent Hyderabad rape case or of Dhananjoy Chatterjee, a security guard who was hanged for the rape and murder of an 18-year-old resident in Kolkata in 2004.

The Muslim lorry driver, the security guard or the migrant worker becomes the “other”, the villain from whom the women need to be protected—completely glossing over the statistical evidence that in most cases of sexual violence the perpetrators are known to the victims.

In a study done between the years 2005 to 2015 on the composition of Death Penalty Prisoners by National Law University Delhi, it was found that 74.1% belong to economically vulnerable backgrounds. About 34.6% were from the OBC group, 24.5% belonged to SC/ST communities, and 20.7% were religious minorities. The degree of punishment is measured on the lines of social positioning of the perpetrators.

The BJP leader accused in the Unnao case will not receive as harsh a punishment as a Muslim lorry driver. The recent revelation about the culpability of DSP Devendra Singh, named by Afzal Guru in his enquiry is a contemporary and deeply horrifying testimony to the state’s selection of who can be sacrificed at the altar of ‘public consciousness’.

Protests in the aftermath of the Unnao case, against Kuldeep Senger, convicted of rape, murder, attempt to murder, criminal conspiracy and criminal intimidation.

Statistics also bear that even after the death penalty in the Nirbhaya case and the subsequent changes in the law sanctioning the same in other cases, the number of rapes in the country has been increasing at a steady rate, nor is there any conclusive evidence suggesting a correlation death penalty and reduction in crime rates in general. Hanging criminals does not wipe out crime.

Rather, it completely alters the frame of reference in which we understand the problem of rape itself and allows it to be defined in terms of only punishment rather than situating it the environment of deep oppression, inequality and institutionalized sexism. This kind of emphasis on punishment also increases the discourse and legitimacy of more surveillance and control generally in society and more specifically, on women’s bodies.

This has resulted in increased securitisation in public spaces, universities, our homes and private accommodation like PGs and flats and an almost strangulating vigilance over our bodies and our mobility. It is important to understand that this culture of surveillance again is in accordance with the principles of a Brahmanical patriarchal state trying to control women’s sexual autonomy.

If the state and other structures of authority really cared about women’s freedom from sexual violence, there would be greater investment in affordable and safe public transport and education, streetlights, rigorous and accountable redressal mechanisms like the ICC in colleges.

The Political Gimmick Of ‘Delivering Justice’ Parallel To The Injustice Of the CAA

Today, this fascist regime is using women’s systemic oppression as a tool to legitimise its punitive power over its citizens. This gesture of declaring the hanging on the same day as the Supreme Court hearing of the CAA case is a strategic move not only to distract from the resistance against the CAA-NRC-NPR nexus that has been engulfing the country but also to legitimise and strengthen the process of creating an ‘other’ who “can be and should be” brutally punished and even exterminated by the State, by using the legitimacy enjoyed by capital punishment in the Nirbhaya case.

But we need to remember that the Hindu Rashtra, which this government wants to build, is definitionally anti-women, and it is merely using our bodies and our histories of pain as pawns in securing its legitimacy in the eyes of the people.

Espousing a notion of justice that is merely retributive, the State is attempting to assuage a collective conscience by way of a grand mediatised spectacle that does nothing to counter the structural violence ceaselessly affecting the quality of women’s lives in India. We must remember now more than ever that this gimmicky execution that is designed to gain applause for the men at the helm is indicative of the masculinist nation-state’s utter disregard for the actual, sustainable safety of women on the streets, inside our homes, inside our campuses and workplaces every day.

It is only with these tools of empowerment and structural changes in society, and not with solitary spectacles of punishment politics that we can hope to attain a society where women can live agential, autonomous lives free of the threat of sexual and other forms of violence. Any other promises and claims of justice are resoundingly hollow otherwise.

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Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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