Death penalty, no answer to heinous crimes such as Nirbhaya

The Nirbhaya case has been a watershed moment as far as violence against women is concerned. The rape occurred on the night of December 16, 2012, when a young physiotherapist intern was gang-raped in a moving bus and then thrown out naked and bleeding in Chanakyapuri considered one of the most affluent colonies of Delhi.

The rape so shocked the conscience of the country that spontaneous protests broke out in several cities. Candle-lit protests were held at India Gate and several demonstrations were organised outside former Chief Minister Sheila Dixit’s residence. Initially, the Delhi State government thought they could use force to break these demonstrations, and on a cold winter day the police resorted to using water cannons on hundreds of young college students who had gathered to voice their anger at this rising graph of violence.

Political movement

These protests, it must be remembered, took place against the backdrop of the massive India Against Corruption (IAC) agitation led by Anna Hazare and Arvind Kejriwal. Under pressure, the ruling triumvirate comprising former prime minister Manmohan Singh, Congress president Sonia Gandhi and Sheila Dixit agreed to set up the Justice Verma Committee to look into how the law could be tightened in order to address this rising spectrum of violence.

The political fallout of the IAC saw the emergence of Arvind Kejriwal as a political force. His AAP trounced the Congress in the 2013 State elections and eventually made way for the emergence of the BJP under Prime Minister Narendra Modi. The Verma Committee made a slew of recommendations which saw the tightening of laws that provided for quicker and enhanced punishment for criminals accused of committing sexual assault.

The tightening of laws did not have the kind of result that either the government or women activists had expected. For one, despite harsher punishments, crimes against women have continued to escalate.

Our lawmakers had presumed that harsher punishments would see a decline in the number of rape cases. This has not happened. On the contrary, we have seen an increase in the number of rape cases and a corresponding decrease in the number of murder cases since 2012. Stats released by the National Crime Records Bureau has shown that there has been a 34 per cent increase in rape cases from 2012 (24,923) up to 2018 (35,356) cases and a decline in the number of murder cases by 19 per cent from 34,434 in 2012 to 28,652 cases in 2017.

To make matters worse, our rape cases have got gorier and gorier. Some of the uglier cases include the gang rape and murder of an eight-year-old girl in Kathua in 2018 and the burning alive of a rape victim in Unnao district in December 2019. Experts working with criminals have different explanations for such an increase.

Dr Rajesh Kumar who heads the Society for Promotion of Youth and Masses (which works closely to stop substance abuse with juvenile delinquents) had expressed his apprehensions regarding the tightening of the rape law before the Verma Committee. Rape of a woman would result in the death penalty, according to the change in law. Kumar informed Committee members that for many of these boys, murdering a girl who they had raped meant they were doing away with a key witness which they believed would testify against them in a court of law.

Populism in the States

But rather than understand how this law was being played out, State governments have all played to the gallery by trying to reassure their voters that speedier implementation of the death penalty will see a decline in rape. Hence States such as Rajasthan, Madhya Pradesh and Jharkhand have legislated that a rapist be given the death sentence within a month’s time if he was found to have committed a crime under Protection of Children from Sexual Offences Act.

Between 2018-19, Madhya Pradesh awarded 35 death sentences under POSCO Act, with one verdict being pronounced within five days of the filing of the FIR. After it was delivered, the Director General of Public Prosecution of the State, Rajendra Kumar, boasted that it was the “swiftest case of capital punishment in the history of jurisprudence”. It is a different matter that the accused did not get a chance to speak even once to his lawyer. Not to be outdone, the State of Jharkhand went a step further and delivered the death punishment on three men in early March this year within four days of the filing of the FIR.

Another fallout of the Nirbhaya case has been the disproportionate amount of media attention it has received. There have been several rape cases, which have been equally heinous in nature. The murder of the two teenage cousins, who were 14 and 15 years of age, in the village of Sadatganj in Badaun district created shock waves across the country. The crime happened on March 27, 2014 and both girls belonged to an impoverished Dalit family. The first post-mortem report conducted by the local thana showed they were tortured but alive when hanged from a mango tree.

Several NGOs, including the All India Women Democratic Association — whose general secretary Jagmati Sangwan brought out a report on this infamous rape case within three days of this double crime — confirmed the findings of the local police.

The CBI was, however, brought into this case and several senior lawyers who were following it, including Rebecca John, believe a case of rape and murder was twisted to make it seem an honour killing. The CBI cast a doubt on whether the girls had actually been sexually assaulted; since the village has been flooded due to the heavy monsoon rain, the bodies of the girls could not be exhumed.

The CBI team claimed the polygraph tests of the five accused “showed no deception”, while the families of the girls “showed deception”, and therefore the alleged upper class perpetrators of this crime were allowed to go scot free.

Upper classes, John believes, were politically better connected and were rich enough to buy their way out. It is to the credit of Nirbhaya’s mother that she kept knocking at the doors of the court to ensure her daughter be given justice.

But to insist that capital punishment alone would provide retribution ‘to the soul of her daughter’ has created a mood across the country in favour of the death penalty and this seems to be now echoing in our courts as well.

The simultaneous hanging of the four men in the Nirbhaya case, which was a first in Tihar Jail’s history, should hopefully end this tragic chapter. While thorough investigation and speedy justice are sought in all trials, however, for Nirbhaya’s mother to keep clamouring that those on the death row were obstructing justice because they were taking recourse to all legal options open to them was also far-fetched.

Capital punishment is not known to be a deterrent for crime. Nor will its hasty imposition improve the lot of our women. Better policing and better community services for young people are the need of the hour and the sooner our government realise this the better for all of us.

The writer is a senior journalist