By Yash Budhwar
On Monday, December 4, 2017, the Legislative Assembly of the state of Madhya Pradesh, passed a bill that assigns the death penalty to those found convicted of raping a girl aged 12 or below. The bill also includes a provision for a fine of Rs. 1 lakh if one is found molesting, stalking or harassing women. If the bill is given the Presidents nod, as such a bill will require, given its proposal of handing out the death penalty, it will then become a law.
The increase in the severity of the punishment meted out to such convicts comes as the number of rape cases that have been reported within the state has increased over the past few years. From 3,425 in 2012, it had risen to 4882 in 2016. In 2015 and 2016, the state had the highest percentage of recorded rape cases in the country. Thus, the government of the state of Madhya Pradesh felt the need to enact the death penalty to curb such acts from being carried out in the future. Will such a change prevent such crimes from being carried out though?
Current provisions for the punishment for rape
The proposed change in the punishment meted out to convicts of rape is in stark contrast to the current provisions for punishment for such convicts. According to the Indian Penal Code Section 376, rape convicts are normally subject to a minimum of seven years of imprisonment and a maximum of ten years. However, in certain cases, the minimum imprisonment sentence is 10 years and the maximum is life imprisonment. Also, the current law provides for the carrying out of the death penalty in the rarest of rare cases, including those of rape. Hence, the question also becomes whether capital punishment should be meted out in all cases involving rape and not just in the rarest of rare ones. The landmark 2012 Nirbhaya case, wherein a 23-year-old physiotherapy intern, Jyoti Singh, was fatally gang-raped and assaulted (a rod was inserted inside of her which caused damage to her internal organs), led to four convicts being handed the death penalty. In this instance, the Supreme Court had used the rarest of rare instance. Was such an instance really a rare one?
Nirbhaya was, and is, not a one-off
There is no doubt as to the viciousness and brutality of the attack on Jyoti. However, incidents involving such gore and violence are not rarethey are simply not given attention to. As noted in a report by an independent media organisation, attacks of such brutality have occurred in Haryana, West Bengal and Uttar Pradesh. Female bodies with sticks and stones in their private parts and girls found with their ears chopped off are just two such instances. There was no capital punishment for the convicts of such heinous crimes. The deciding point between Jyoti and these specific instances is that the victims of these specific instances were not urban or middle-class, they were rural. In 2016, it was found that 88% of rape cases happen in the rural parts of the country. In most of these cases, it is not even clear whether the perpetrator is given any sort of punishment at all, let alone that of capital punishment.
This is because the culprits in most of these instances enjoy the privilege of belonging to the dominant upper castes. With such a high position in the countrys oppressive social structure comes power and influence over the executive and judicial goings-on. Hence, the police in such instances do not even file a first information report (FIR) and the victim goes unheard and not taken care of. Thus, when the enforcement authority fails to deliver adequate justice to sections of the populous, it is not the law that needs changing, it is the way in which the law is carried out that requires a seismic shift.
Lack of financial resources is an issue
Further, it was reported in 2013 that only 26% of rape cases actually lead to the culprits getting convicted. This means that even when the FIR is filed, the probability that the trial proceedings in a courtroom will actually lead to a verdict being delivered is only one in every four cases. This is due to the time it takes to deliver a verdict in a court. As justice keeps getting delayed in such instances, the victim loses hope and ultimately the case peters out leaving the victim with no other recourse. The Delhi High Court, to this end, launched a fast-track court system, after the Nirbhaya 2012 case, to try and bring about a speedier turnaround time in delivering verdicts for cases involving rape.
However, a faster turnaround time might have led to a fall in the quality of justice that got delivered in the attempt to try and bring about a faster response. It also might have diverted limited resources away from other pressing judicial issues: There were no fast-track courts set up for instances of murder after the Nirbhaya gang-rape case, for example. Thus, the central government might need to look into allocating a greater portion of their budget towards the appropriate conduction of judicial proceedings.
Inconclusiveness and potentially harmful consequences of the death penalty
Even if the government goes ahead with the proposal to hand out the death penalty for all cases of rape, the effectiveness of capital punishment in acting as a deterring instrument still needs to be assessed. A report that summarized the literature on the effects of various forms of deterrent modes of punishment found that there is little evidence for increased levels of deterrent effects for increasing levels of severity of the punishment meted out. Instead, it found that for increasing levels of certainty of the punishment meted out, there are proportionately increasing levels of deterrent effects. This is because criminals, or potential culprits, value their future relatively lower than what other people do. This summary report, along with the report submitted by the Law Commission of India in 2015, highlights inconclusive evidence regarding the effectiveness of capital punishment as a means of deterring potential criminals.
Further, in 2015, it was found that nearly 95% of rape victims personally know the identity of their offender. Along with the manner in which justice is given out to victims, as described above, this statistic makes the case for handing out capital punishment even harder. In a country wherein women face extreme forms of discrimination and oppression on a daily basis, such a change in the law will potentially require female rape victims to come out against their family and friends. In a social and judicial system that anyway does not encourage such victims to disclose the identity of their offender, such a change will further prevent female rape victims from disclosing the person(s) responsible for such atrocious crimes. What is more, such a change can potentially lead to more cases of murder as the perpetrator would want to remove the only possible source of evidence of their crimethe victim.
The way forward
The current provision for the punishment of rape convicts and the proposed change in the same law identify males as the only potential culprit and females as the only potential victim. Both do not incorporate the possibility of males being on the receiving end of rapes or females being potential culprits. Neither do non-gender binary conforming identities get factored into by either provision. This leaves entire sections of society not provided for and not covered by the law.
Also, the mode of capital punishment is not reformative in nature. If the purpose of the law is to prevent further crimes from being carried out in the future, the law not only needs to be meted out in a just manner, but it should also seek to reform criminals. As mentioned previously, there exists evidence that limits the supposed deterring effects of capital punishment. The government should thus encourage the spread of information that seeks to change the current societal mindsets as a method of reform and not try to increase the severity of punishment that is meted out to convicts.
To try and change such mindsets, the Health Ministry of the central government has prepared resource material that expounds on the principles of consent, openness and acceptance for adolescent peer educators. This initiative, termed as Saathiya, was launched by the ministry in February of this year. It aims to guide the 26 million adolescents in the country and contains information on the normalisation of homosexuality, gender non-conformity, contraception, consent and different forms and types of sexuality. It remains to be seen if such a step will result in a lasting change in the attitudes of the society and its people, but the initiative is certainly one in the right direction. The propagation of such information in a more mainstream way is what is required for the delivery of equitable and uniform justice and to potentially lessen the prevalence of rape in the country.
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