The tempest of public anger and revulsion against violent attacks on
women in the nation’s capital must catalyse long-delayed changes in laws
and their implementation for a more secure and humane world for girls
and women to grow up in. The students and young people who faced water
cannons and tear gas shells are right in settling for nothing less.
High on the list of reforms demanded – and which a besieged government
seems most willing to concede – is the death penalty for rapists. The
same cry for the death penalty rose recently in the context of terrorist
violence. It seems that when we feel most violated – as in terrorist
massacres or in the gruesome recent gangrape of the physiotherapy
student in Delhi – we believe that only the death of those who cause us
so much grief and outrage will ensure closure and justice. The
assumption is also that potential rapists – and terrorists – will be
deterred from committing such crimes only if they are threatened by the
ultimate punishment of death.
But in our justified rage, it is important for us to reflect
collectively if death both as retribution and deterrence will actually
reduce violence – terrorist and against women. A statement by a number
of feminist and progressive groups and individuals, while supporting
demands for justice for persons guilty of rape, adds that ‘our vision of
this justice does not include the death penalty, which is neither a
deterrent nor an effective or ethical response to these acts of sexual
violence’.
India today stands among a minority of nations where the death penalty
is still lawful. One hundred and forty-one nations have abolished the
death penalty, from just eight United Nations member-states in 1945. The
overwhelming evidence from countries which abolished the death penalty
is that ending it has nowhere resulted in increased crime; therefore,
there is little basis to believe that capital punishment is an
effective, let alone essential, deterrent to heinous crimes like rape.
Both statutes and evidence are evaluated by human beings, and human
beings are always subject to failings and bias. Law scholar Usha
Ramanathan documents many pitfalls in the path of justice, including
"eyewitness misidentification, flawed forensics, police and
prosecutorial pursuing of conviction and not justice, false witnesses,
dearth of defence lawyers for the indigent, false confessions and
miscarriage of justice". No judicial system in the world has been able
to eliminate the chances of wrongful conviction. Then how can we morally
justify taking away the life of a person who may actually turn out to
be innocent?
This is aggravated by class, gender, caste, racial and communal
prejudice among all actors in the criminal justice system – the police,
prosecution and judges, which led Justice Krishna Iyer to observe that
capital sentence has ‘a class bias and colour bar’, and is ‘reserved’
for crimes committed by the poor. Justice PN Bhagwati also agreed that
the death penalty has a "class bias inasmuch as it is largely the poor
and downtroddenwho are victims of this extreme penalty".
Beyond the failings and bias of the criminal justice system are ethical
questions with which we must grapple, even when enraged and anguished
such as by the suffering of the gangraped student. Justice Krishna Iyer
reminds us of the sacredness of life, the ever-present possibility of
redemption of the worst type of criminal, and the barbarity of the death
penalty. I feel convinced that every human being must be given a chance
to redeem himself. And every human being, even the most unrepentant
criminal – rapist, terrorist, serial killer, child abuser – who wrongs
us most grievously, still is worthy of our compassion. As lawyer and
campaigner Yug Mohit Chaudhary declares, "If we have to become a more
humane and compassionate society, and leave a better… world behind for
our children, we have to curb our instinct for bloody retribution". He
adds, "Mercy tempers justice, makes it less exacting, more humane."
The statement by feminists and progressives further observes, "Sexual
assault occurs with frightening regularity in this country" against
"adivasi and Dalit women and those working in the unorganised sector,
women with disabilities, hijras, kothis, trans- people and sex workers",
who are especially targeted with impunity. It calls for the "need to
evolve punishments that act as true deterrents to the very large number
of men who commit these crimes. Our stance is not anti-punishment but
against the State executing the death penalty. The fact that cases of
rape have a conviction rate of as low as 26% shows that perpetrators of
sexual violence enjoy a high degree of impunity, including being freed
of charges".
The changes which we must seek in this hour of grief and anger are
long-delayed reforms in an over-worked and under-trained police force;
reforms in investigation and prosecution; and judicial reforms. We need
significant changes in laws on sexual violence and sexual harassment in
the workplace. The blueprints of these reforms are relatively well
charted; what is lacking is commitment to a changing world in which
every woman must have the freedom to confidently enter and excel in
every workplace and all public spaces, at all times.
But in our fury, we also need to turn the torchlight within. We need to
reflect as a people about the ways we bring up our boys and men,
discouraging their gentler nurturing instincts, and teaching them to be
aggressive, dominating, violent, and disrespectful of women and girls.
The act which eliminates a girl-child in the womb is the violence which
ultimately manifests itself in acts of hate and dominance like rape. It
is not by threatening rapists with death that violence against women
will end. We do need effective laws and enforcement systems. But we need
in the end to believe in equal rights to this world to girls and women,
and recreate families, workplaces and public spaces in ways that
equality becomes a way of life.
Harsh Mander is Director, Centre for Equity Studies