Crime against women in India, especially cases of rape, put one legal aspect of the justice system under debate every time — that of capital punishment. Should rapists be hanged?
India has a rape culture. It stems from the misogynistic beliefs of men who want to dominate women, even children, to feel strong and therefore validated. Pop culture showing women madly in love with abusive men perpetuates this feeling. And in a nation where sex is still a taboo, where sex-starved men feast on violent porn, their fantasies and expression of sexual desires also take a violent form.
But the Indian society — including its justice system — that remained unaffected by cases of rape finds itself at a loss even more now when women are murdered after the crime. Men who were fearless in committing assault on women became only slightly perturbed by the notion of getting caught. So, now they mutilate their victims, murder them brutally. And something needs to be done about it.
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Hang them
I will be called a Sharia-loving jihadi but India really needs to look at death penalty as the only solution for rapes. Most lawyers and activists disagree with this because of lack of data on capital punishment being an effective deterrent. But India did see something unique after 2013.
Public outcry over the Nirbhaya rape case in 2012 led the government of India to introduce a stricter legislation called Criminal Law (Amendment) Act, 2013, which expanded the definition of rape. It was not just penile-vaginal penetration anymore but also included any kind of forced penetration with any body part or object. Even though punishment was still seven years of jail term, the new law gave 20 years to life imprisonment for gang rape and death penalty for repeat offenders.
In spite of the stringent provisions in the law, rape cases continued to spike after 2013. While in 2012, a little less than 25,000 rape cases were reported, 33,707 cases were reported in 2013. By 2016, the number of rape cases filed rose to 38,947. At first glance, stricter laws obviously did nothing to decrease the incidence rape. But if one was to take a closer look, it would become clear that harsher laws ended up encouraging more women to report cases of rape.
This is where stricter punishments have been effective. Most people tend to see rape and its deterrent from the point of view of the perpetrator but we need to bring back the focus on survivors, who feel much more empowered to report a rape knowing that the culprit will be punished severely.
Death penalty will also be effective in stopping rapes against children. According to the National Crime Records Bureau, the number of reported rapes of children has increased drastically, from 8,541 in 2012 to 19,765 in 2016. In this regard, India rightfully amended the Protection of Children from Sexual Offences (POCSO) Act to enable courts to sentence convicts to death for raping a child under 12 years of age.
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In the absence of strict enforcement
The problem lies with the justice delivery system in India. According to the Criminal Procedure Code (CrPC), trial in a rape case in a fast-track court has to be completed in 60 days.
But according to a study conducted by Delhi-based NGO Partners for Law in Development in collaboration with the United Nations Development Programme (UNDP) and the law ministry, most cases of rape in fast-track courts take eight months to complete. Even the Nirbhaya gang rape case, which was fast-tracked due to public agitations, took nine months. Moreover, not all rape cases are tried in fast-track courts.
By the end of 2017, a staggering 1.27 lakh rape cases were pending and the conviction rate that year was an abysmal 32 per cent. These are evidence that rapists are not being brought to justice. Even if they are jailed, they get bail too easily.
Consider the horrifying Unnao case. Five men set the woman ablaze Thursday morning while she was on her way to a court hearing in her rape case. Two of them were her alleged rapists, one of whom had been given bail 10 days ago. The woman succumbed to her burn injuries Friday night. Another man in Chhattisgarh Friday attacked a complainant he had harassed, days after coming out on bail.
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Educating a country of 1.3 billion people
Those on the other side of the fence are of the opinion that the death penalty will actually increase the chances of murder after rape. However, the NCRB data for 2017 showed that while crime rate for murder stood at 2.2, rape was at 5.2. This is when the Indian Penal Code (IPC) clearly states that “whoever commits murder shall be punished with death” but the law doesn’t prescribe death for rape.
But on moral ground, the fact that a crime like rape, where a man violates a woman’s right over her own body, is not considered a crime heinous enough to warrant capital punishment is problematic. Besides the physical trauma, the psychological trauma is rarely factored in while ascertaining the punishment for a rapist.
Those against capital punishment for rapists say that it is the underlying cause — misogyny — that should be targeted. However, in a country of 1.3 billion people, where does one start? How do we spell it out for everyone that rape is heinous?
For the longest time, stalking was romanticised in films and pop culture. But today, it has turned out to be one of the ugliest manifestations of the same rape culture where it’s considered OK for a man to force himself on a woman, emotionally or physically.
It is only when we consider rape to be as severe as murder, and thus make the quantum of punishment equally severe, that we can create a society which understands the brutality of rape. Because at the moment, rape is a not a brutal, abominable crime in India.
The author is a political observer and writer. Views are personal.