- Megha Mehta*
On 20th March, 2020 at 5:30 am, the convicts in the Nirbhaya gangrape case were hanged, after exhausting all the remedies available to them under the law. The accused in another case however, did not even have the option of due process. A few months before this hanging, the Hyderabad police had gunned down four persons who had allegedly committed the rape and murder of a veterinary doctor. The four accused were not given the benefit of a trial. They were taken to the crime scene, allegedly for a ‘reconstruction’ of the crime, and ‘encountered’ in dubious circumstances. The public reaction to this ‘retributive justice’ has been largely positive, though the legality of the ‘encounter’ has come under the scanner.
These are only a few of the recent events which indicate the State’s affinity for punishing the crime of rape with death. For example, in response to the furore surrounding the Kathua and Unnao rape cases, the Parliament in August 2019 gave its assent to the POCSO (Amendment) Act, 2019. The Amendment Act introduces the death penalty for persons who have committed aggravated penetrative sexual assault upon children.
This is not an isolated phenomenon. After the Nirbhaya case, the government at that time had brought in similar radical reforms in the Indian Penal Code (‘IPC’) as a way of distilling public anger. This includes Section 376E of the IPC, which allows the death penalty to be imposed upon persons who have been previously convicted for rape. The first conviction under this section was in the infamous ‘Shakti Mills’ case. This was a case involving the gangrape of a photojournalist on the Shakti Mills premises in Mumbai, by a group of five men, including two juvenile accused. The same group had previously committed gangrape on a telephone operator on the same spot. The victims in both cases survived, and the cases were tried in parallel proceedings. The three adult accused were awarded life sentences for the gangrape of the telephone operator. Subsequently, the trial court awarded the death penalty under Section 376E for the gangrape of the photojournalist, taking note of the previous conviction. This was even though the men had not been convicted in the previous rape case at the time the crime had occurred.
Hence, there appears to be a certain recurring cycle when it comes to crimes against women in India. In the first stage of this cycle, a gruesome incident of sexual violence is reported, which is given significant media attention. This is followed by public outcry for killing the rapists. In response to this public censure, the government at that time undertakes knee-jerk punitive criminal justice reforms. This cycle continues till the next brutal incident occurs. It is clear that these punitive reforms are not really making the situation significantly better for Indian women if the same cycle occurs every 7 years.
We must decode the rhetoric about awarding death penalty to rapists for what it really is- a conveniently orchestrated distraction from the failure of the State and society to prevent rapes and institute adequate support structures for rape survivors. In this light, this piece argues against the death penalty as a criminal justice solution against sexual violence. This is because, first, the death penalty is selectively awarded in those cases which fit in with the popular understanding of rape as a crime committed by marginalized ‘Others’. Second, because the death penalty affirms the widely held patriarchal notion that rape is a crime which is worse than ‘death’ for the survivor. Lastly, and most importantly, because the death penalty does not effectively address the culture giving rise to sexual violence, and does not improve the roadblocks faced by survivors in accessing the criminal justice system in the first place.
I. Stranger rapes and selective conscience
It is apparent from an overview of the facts of the aforementioned rape cases and the media narratives surrounding them, that these fit in with the popular understanding of rape as an abnormal crime committed by unknown ‘Others’. These ‘Others’ inevitably belong to the lower class strata, and are not composed of ‘people like us’ i.e. the respectable bourgeoisie. This is notwithstanding statistics which show that a majority of rapists are known to their victims. In the Shakti Mills case, the trial court observed that notwithstanding the young age of the accused, the ‘perversity’ and ‘depravity which is found writ large on the record’ ruled out any possibility of reform. Unsurprisingly, all the accused in the case hailed from lower socio-economic backgrounds, and had a history of juvenile delinquency. This dehumanization of rapists as being monsters on the fringes of civilization is what enables us to rejoice with a clear conscience when they are sentenced to death. In fact death is not enough; alternatives such as chemical castration and torture are mooted every time such sensational cases hit the headlines.
However, the public invocation for death penalty for rapists, and dehumanization of rape accused, is not uniform in all cases. We routinely condone rape as a tool to control marginalized castes and classes. The failure to arrive at a definite verdict in the Bhanwari Devi case, which was the genesis of the Vishakha guidelines on sexual harassment, speaks to this.
In the 2006 Khairlanji massacre, an upper-caste mob stripped a Dalit mother and daughter, paraded them naked through the village and sexually assaulted them before murdering them. It was alleged that objects were inserted in their genitalia, which is similar to what happened in the Nirbhaya case. Though the trial court sentenced six accused to death, the High Court commuted the sentence to life imprisonment, in spite of the dissatisfaction expressed by Dalit activists.
The Kathua case involved the gangrape and murder of an eight-year old girl. The victim was abducted and illegally confined in a temple, where she was administered sedatives to keep her unconscious. It was proved that the rape was committed to settle scores on account of the conflict between the accused and the Bakerwal Muslim nomadic community from which the victim hailed. In spite of the heinousness of the crime, the accused were only awarded life imprisonment. There was no State initiative for awarding death in the Khairlanji and the Kathua rape cases, on the same scale as there was in the Nirbhaya and Shakti Mills cases.
Pertinently, the imposition of death penalty is also rare in those rape cases where the accused hails from a high-profile background. In the Unnao case, ex-BJP MLA Kuldeep Sengar was convicted for abducting and raping a minor. Sengar was also convicted for culpable homicide not amounting to murder, for conspiring to kill the victim’s father. Though Sengar was sentenced to imprisonment for the rest of his natural life, he was not awarded the death penalty. Courts are also hesitant to award the death penalty in cases of rape by policemen and armed forces personnel, irrespective of their brutality. Examples are the Vachathi case, the Kunan-Poshpora gangrapes, and the rape, torture and murder of Thangjam Manorama by Assam Rifles men.
The ‘conscience’ of the public and the judiciary is also more heightened in the case of rape and murder of young girls or students by strangers than in the case of sexual assault in intimate settings. For the latter category of cases, the common response is to think that ‘it must be an affair gone sour’ or a ‘feeble no amounting to a yes’, as in the Mahmood Farooqui case. Is a rape in Kunan-Poshpora or Manipur any less heinous or traumatizing than one in Delhi? Is a lorry driver a more likely suspect and less deserving of ‘due process’ than a politician or academician? These are uncomfortable questions that must be addressed if the dialogue about fighting sexual violence is to move forward.
Hence we cannot evoke a ‘collective conscience’ which justifies the condemnation of rapists to death (as was done by the courts in the Nirbhaya and Shakti Mills cases). It’s more of a selective conscience which is awakened when ‘people like us’ have to suffer.
II. The implicit patriarchy in equating rape with murder
One must also keep in mind that like other laws meant to ‘protect’ women, rape laws are framed from a male point of view. From a patriarchal perspective it is logical to equate rape with murder. Under ancient Jewish and Anglo-Saxon law, the death penalty for rape was justified as a means for ensuring exclusive control over a woman’s sexuality by her husband. The logic was that rape threatened a husband’s exclusive access to his property i.e., his wife, and therefore the death penalty, as the ultimate penalty, was the only way to deter someone from violating such access. Similarly, under early common law, the capital punishment was awarded for rape as it was seen as a ‘crime against nature’. This is because in the ‘natural order’ of things, only a woman’s husband could ‘own’ sexual access to her. If the law regards a woman’s personhood as the exclusive property of her husband, and rape takes away this exclusivity, it follows that rape results in the ‘death’ of her personhood.
This thinking continues to be reflected in Indian judgements which, even when speaking with an intention to condemn rape convicts, mention how a rape survivor’s ‘life is destroyed’ and ‘honour is besmirched’ after the crime. For example, in the Shakti Mills case, one of the aggravating circumstances justifying the awarding of the death penalty, as submitted by the prosecutor, was that ‘Rape is an offence which is fundamentally and materially different from other offences. It leaves a permanent scar on the victim. According to him, injury to the body can be healed but injury to the mind and honour of the victim can never be healed.’ The court itself observed that ‘offence assumes (more) serious nature than murder because of the brutality and gruesome nature with which it was committed.’ Celebrating capital sentencing for rapists perpetuates the logic of rape survivors being the ‘living dead’, by justifying ‘death with death’.
This line of thinking is also reflected inasmuch as that the same society which celebrates when rapists are killed, also indulges in victim-blaming, views women who failed to ‘fight back’ or ‘resist’ with suspicion and treats rape survivors as social outcasts. After all, if rape is worse than murder, then women are expected to fight till their dying breath rather than ‘passively’ allow the violation of their dignity to take place. In the Mahmood Farooqui case, the Delhi High Court observed that unlike in the Nirbhaya case, the prosecutrix in Mahmood Farooqui did not adequately communicate her fear and resistance to the alleged act of rape to the accused, and hence it could not be said that he had raped her. Therefore the court put the onus on the victim to prove that she had communicated her unwillingness to consent, and since her resistance was too ‘feeble’, her claim was set aside.
Curiously, this destruction of life seems to be limited only to cases where unmarried women and children are raped. The State and the judiciary continue to be in denial of the trauma of other victims. Section 375 of the IPC only covers non-consensual sexual intercourse by a man upon a woman. Therefore only a woman can complain of rape under the IPC. For persons of other genders, the limited remedy available is under the infamous Section 377. Further, the State refuses to criminalise marital rape on the ground that it would ‘destabilise the institution of marriage’. This affirms the patriarchal perspective of rape as a crime against the ‘property’ of other men rather than a violation of a person’s right to dignity and bodily autonomy.
The patriarchy implicit in death as a penalty for rape is especially highlighted when the same State which has introduced the death penalty for rape, denies sex-education and censors films about women’s sexuality. This is as opposed to investing in programmes to promote healthy discussions about consent and sexuality, which in turn would help prevent sex crimes. This shows that the real interest of the State is in deterring men from violating other men’s property, not in promoting the autonomy and well-being of women. Therefore it is likely that the death penalty will be used as another instrument in the project to control the female body for political gains rather than to serve any genuine goals of justice.
III. The need for constructive solutions
Even if we were to set aside the patriarchal origins of the death penalty for rape, it is no use introducing the death penalty if the existing loopholes in the implementation of anti-rape and anti-sexual harassment laws are not addressed. Rape does not occur because rapists are irrational, unthinking ‘monsters’, who can be eliminated by the fear of the death penalty. These are perfectly rational men who are probably aware of the difficulties involved in the reporting and prosecution of sexual violence. The latest data collected by the National Crime Records Bureau shows that as of 2018, for the offence of rape itself, the rate of conviction for was 27.2 percent, whereas the pendency rate was 88.7%. There would be no need for a #MeToo movement if the present legal system could adequately address the needs of sexual assault survivors. Therefore the death penalty is unlikely to act as a deterrent so long as perpetrators are confident that they will not be convicted in the first place.
It may be argued that if the death penalty has even an ounce of deterrent value for some perpetrators, it is still a desirable punishment. The death penalty may also provide a cathartic sense of retributive justice to victims and their families, and act as a psychological tool to propagate belief in the ‘system’. However, the elephant in the room in this conversation is the question of the real origin of these rapists. Where does the desire to invade another person’s bodily autonomy come from, and what makes one dehumanized enough to act on this desire? Are they born this way, or are they fashioned to be so?
The uncomfortable truth is that we cannot pin the blame for sexual violence on individual ‘monsters’. We as a society are collectively culpable in encouraging the same. Society contributes to the production and indoctrination of rapists by teaching boys that their personhood is more valuable than that of girls’, by teaching girls that they ‘belong’ first to their fathers, then their husbands, by disseminating cultural media that promote the idea that a woman can be won over by persistent harassment and stalking, and by producing pornography that shows that a woman’s ‘no’ means ‘yes’ because women are too infantilized to know what they really want. Killing rapists will not kill the societal production of sexual violence against women and children.
It may be argued that our culture’s condonation of sexual violence does not mean that the law cannot impose a strict penalty against those who commit such crimes. However, though strict penalties may be desirable, we should not let our anger drive us to impose a penalty that is completely irreversible in nature. This is especially given that even after the coming into force of Sec. 376E and other similar criminal law reforms, statistics show that sexual violence and other crimes against women are on the increase. Our legal system is too fallible and our sentencing process too arbitrary to afford the due process required before taking someone’s life. The Supreme Court of India itself has taken judicial notice of this arbitrariness. It has been observed that in similarly brutal cases of rape and murder, with similar aggravating and mitigating factors, one set of culprits was sentenced to death whereas the others were sentenced to life imprisonment. This trend of ‘individualized’ sentencing has deterred the Court from awarding the death penalty in the recent past. This individualized sentencing is perhaps reflective of the ‘selective’ conscience discussed above.
It is also significant to note that the death penalty does not have any rehabilitative or recuperative value for traumatized victims. This is especially given the absence of equipped counseling centers and preventive mechanisms to stop sexual abuse. Instead of focusing on executing rapists, the State can better divert its resources to building infrastructure for helping rape survivors recover from their trauma. For example, provision of free counseling services for rape survivors and socio-economic support to survivors who are financially dependent on their perpetrators.
The State should also focus on enacting criminal justice reforms which make it easier to report and try rape and sexual assault in all forms. This includes sexual assault by public servants, armed forces personnel, and other persons in positions of power. This would also include sexual abuse of transgender persons, sexual abuse in homosexual relationships, marital rape, and so on. The police needs to be adequately sensitized on how to investigate sexual assault. This includes training on how to record the statements of rape survivors, particularly physically and mentally disabled survivors. Medical personnel need to be trained on how to use rape kits. Judicial officers require gender sensitization sessions so as to ensure that archaic attitudes do not carry over in their judgements.
Further, media narrative as well as political dialogue ought to confront the reality that sexual violence occurs in a ‘pyramid’. It occurs not because of inhuman ‘Others’, but because society condones verbal harassment, molestation, stalking and other forms of assault/sexual harassment which are perceived as ‘lesser’ in degree. This continues to such a level that perpetrators get emboldened and escalate to carrying out more gruesome crimes. To tackle this, both the State and civil society need to work on promoting gender-sensitization initiatives to help curb toxic masculinity before it escalates into violence. This would entail reforms in the educational system and school syllabi to ensure that gender stereotypes are weeded out at a preliminary level. Persons with influence over popular culture will have to take responsibility for the symbols and messages disseminated by them, and their role in reinforcing harmful notions of sex and sexuality through their ‘art’. This includes writers, artists, musicians, celebrities and other persons in the media. A meaningful dialogue about what ‘consent’ really means needs to take place at all forums; and amongst people of all generations, not just the young ‘liberal’ demographic.
Hence in conclusion, we must not accept aggravated penalties as a trade-off against institutional and societal failures to stop sexual assault. The anger one feels against rapists and a commitment against the death penalty need not be mutually exclusive. The current dogma is one of ‘Kill the rapist, blame the victim.’ This needs to change to ‘Prevent rapes, rehabilitate the survivor.’
*Megha Mehta is a graduate of National Law School of India University Bangalore, and is currently working as a judicial clerk at the Supreme Court of India.
 The justification given for the encounter was that the accused had allegedly snatched the weapons of the police officers escorting them and tried to flee. Press Trust of India, ‘Hyderabad encounter: Hashtags trend, polarised posts flood social media’ Business Standard (6 December 2019) <https://www.business-standard.com/article/pti-stories/hyderabad-encounter-for-and-against-posts-flood-social-media-119120600649_1.html> accessed 24 March 2020; HT Correspondent, ‘Praise for police, words of caution: Mixed reactions on Telangana encounter’ Hindustan Times (6 December 2019) <https://www.hindustantimes.com/india-news/justice-done-leaders-praise-police-after-4-accused-in-hyderabad-vet-rape-murder-case-shot-dead/story-O56zcmD3Xdqn3weKwPVYXM.html> accessed 24 March 2020; Asian News International, ‘B-Town react to Telangana encounter’ Business Standard (6 December 2019) <https://www.business-standard.com/article/news-ani/b-town-react-to-telangana-encounter-119120601316_1.html> accessed 24 March 2020.  State of Maharashtra v Vijay Mohan Jadhav @Nanu and Ors, Sessions Case 846/2013 (Bombay Sessions Court, 4 April 2014) <http://court.mah.nic.in/courtweb/static_pages/news/201501008462013_11.pdf> accessed 20 March 2020 (Shakti Mills case).  Rashmi Rajput, ‘4 get life term for gangrape of phone operator’ The Hindu (21 March 2014) <https://www.thehindu.com/news/national/other-states/4-get-life-term-for-gangrape-of-phone-operator/article5814315.ece> accessed 23 March 2020.  ‘Crime in India: 2018 Statistics, Vol. I’ (National Crime Records Bureau, December 2019) 213 <http://ncrb.gov.in/StatPublications/CII/CII2017/pdfs/CII2017-Full.pdf> accessed 23 March 2020.  Shakti Mills case (n 2) .  The case involved the rape of a village woman who was working as a ‘Saathin’ or social worker under a Rajasthan State Government programme for curbing child marriage. The woman was gangraped by men belonging to the dominant caste, from the same village, in retaliation for her efforts to stop the practice of child marriage within the community. The accused were convicted by the trial court, and the appeal has been pending before the High Court for more than two decades. Geeta Pandey, ‘Bhanwari Devi: The rape that led to India's sexual harassment law’ BBC News (17 March 2017) <https://www.bbc.com/news/world-asia-india-39265653> accessed 23 March 2020.  Sabrina Buckwalter, ‘Just another rape story’ Times of India (29 October 2006) <https://timesofindia.indiatimes.com/india/Just-another-rape-story/articleshow/222682.cms> accessed 23 March 2020.  ‘Khairlanji: The crime and punishment’ The Hindu (23 August 2010) <https://www.thehindu.com/opinion/Readers-Editor/Khairlanji-the-crime-and-punishment/article16149798.ece> accessed 23 March 2020.  Raghav Ohri, ‘Six convicted, one acquitted in Kathua rape case; sentencing shortly’ The Economic Times (11 June 2019) <https://economictimes.indiatimes.com/news/politics-and-nation/kathua-rape-case verdict/articleshow/69720996.cms> accessed 23 March 2020.  Devesh K Pandey, ‘Kuldeep Singh Sengar held guilty of culpable homicide for death of Unnao rape victim’s father’ The Hindu (4 March 2020) <https://www.thehindu.com/news/national/other-states/kuldeep-singh-sengar-held-guilty-of-culpable-homicide-for-death-of-unnao-rape-victims-father/article30980197.ece> accessed 23 March 2020.  Devesh K Pandey, ‘Kuldeep Singh Sengar gets life imprisonment in Unnao rape case’ The Hindu (20 December 2019) <https://www.thehindu.com/news/national/kuldeep-singh-sengar-gets-life-imprisonment-in-unnao-rape-case/article30357770.ece> accessed 23 March 2020.  ‘25 years of Vachathi: Symbol of standing up against state-sponsored violence’ The Hindu (23 June 2017) <https://www.thehindu.com/news/national/tamil-nadu/25-years-of-vachathi-symbol-of-standing-up-against-state-sponsored-violence/article19135273.ece> accessed 23 March 2020.  Kavita Krishnan, ‘When it Comes to Rape By Men in Uniform, the Media Forgets the Victim is Also Part of the 'Nation’ The Wire (26 April 2017) <https://thewire.in/culture/rape-security-forces-afspa> accessed 23 March 2020.  Mahmood Farooqui v State (Govt. of NCT of Delhi) (2017) 243 DLT 310  -  (Mahmood Farooqui case).  Brief for American Civil Liberties Union et al. as Amici Curiae Supporting Petitioner, Coker v. Georgia, 433 U.S. 584 (1977) (No. 75-5444), 1976 WL 18142; Corey Rayburn, ‘Better Dead than Raped?: The Patriarchal Rhetoric Driving Capital Rape Statutes’ (2004) 78 St. John’s L Rev 1119, 1126.  Shakti Mills case (n 2) .  Shakti Mills case (n 2) .  Mahmood Farooqui (n 14) .  Nita Bhalla, ‘Men may suffer if marital rape becomes crime: India government’ Reuters (30 August 2017) <https://www.reuters.com/article/us-india-rape-marriage/men-may-suffer-if-marital-rape-becomes-crime-india-government-idUSKCN1BA28E> accessed 23 March 2020.  ‘Crime in India: 2018 Statistics, Vol. I’ (National Crime Records Bureau, December 2019) 229 <http://ncrb.gov.in/StatPublications/CII/CII2017/pdfs/CII2017-Full.pdf>.  This is assuming that a carceral strategy is an effective criminal justice solution for sexual violence crimes in the first place. Though this article does not extensively delve into the broader carceral v. anti-carceral debate, see Prabha Kotiswaran, ‘Governance Feminism in the Postcolony: Reforming India’s Rape Laws’ in Janet Halley and others (eds), Governance Feminism: An Introduction (2018) for more discussion on this point.  The number of reported crimes under women, under both the Indian Penal Code and special laws, has increased from 338954 in 2016 to 378277 in 2018. ‘Crime in India: 2018 Statistics, Vol. I’ (National Crime Records Bureau, December 2019) 195 <http://ncrb.gov.in/StatPublications/CII/CII2017/pdfs/CII2017-Full.pdf>.  Shankar Kisanrao Khade v State of Maharashtra (2013) 5 SCC 546  - .