I couldn’t sleep at all last night. Just a few hours later, four men convicted in the ‘Nirbhaya’ (meaning ‘fearless’ in Hindi) case were supposed to be hanged to satisfy the collective blood-thirst of our country. Entangled in petty politics of revenge and retribution, the judiciary had decided that capital punishment is the best solution. I kept thinking about how it wasn’t a real solution for women, for sexual violence victim/survivors – it was a solution to appease the public.
India is one of the 56 countries that still exercise the death penalty, putting it in the likes of Afghanistan, Iraq and North Korea. To see some of the most ‘prominent’ champions of gender equality hail this decision made me wonder: who is capital punishment really helping?
Most feminists are aware of the intricacies that economic background, religion, caste, or access to facilities play in the lives of marginalized people. Capital punishment unfairly affects those who cannot access these resources – and it gives the state a dangerous and gruesome power over the life of its citizens.
The death penalty is not a policy, nor is it real justice. It is just revenge with no progressive qualities – putting us under a blanket where we feel like we achieved something. Dozens of research initiatives and reports have proved that there is no link between the existence of the death penalty and a reduction in rape cases. We already have laws and regulations to convict rapists, but instead of ensuring that existing laws are implemented effectively, the government and judiciary give in to public outrage.
The truth is that capital punishment is a free pass for the government. It reinstates people’s belief that India is a safe country for women because of the sheer dramatic level of this judgement. Thousands of cases of rape/rape threats and sexual harassment go unnoticed every year.
Time and again I’m asked a simple question: who am I to question this when Nirbhaya’s own parents wanted this? And here’s what my answer is – of course, they wanted it, they were her parents and they have a right to think about this emotionally. But they are not the judiciary. India’s criminal justice system isn’t a means for their (or anybody’s) retribution, it’s there for justice.
The death penalty is just revenge with no progressive qualities – putting us under a blanket where we feel like we achieved something.
What we need to understand is that justice isn’t subjective, it’s the same for everybody else because it has severe consequences. What her parents or you and I want shouldn’t affect the principles of the judiciary.
Mercy to the powerful, death to the poor:
For the Delhi 2020 elections, ministers of the current ruling party issued rape threats publicly when they said, “[these people] will enter your homes, pick your sisters and daughters, and rape and kill them.” The sexual harassment case by a Dalit woman against the ex-Chief Justice of India and current Rajya Sabha Member was one of the biggest blows to Indian democracy – where he himself sat on the bench and denied the allegations, called it a ‘conspiracy against judiciary’ and made the survivor put in a written assurance to not pursue the matter.
When a politician from the same party was convicted of the rape of a minor in the Unnao Case (2017), he was given a life sentence – which was perfectly acceptable by his colleagues who had otherwise demanded public lynchings and denied the provision of the Mercy Petition to the convicts of the Nirbhaya case. One can’t help but wonder why there’s such selective handling of these cases? Why are these punishments given to just convicts from marginalised communities?
When the death penalty news came, feminists from across the country wrote an open letter to the President to turn it into a life sentence. For years, women’s groups have demanded fair and independent inquiries and greater transparency in the process – but to no avail. Women still get illegally detained and suffer police brutality in prisons. Security personnel rape women in conflict areas, trans persons are constantly threatened, married men rape their wives, boys and men are raped and sex workers are exploited.
Even when the #MeToo movement came to India, we saw the shamelessness with which powerful people kept defending themselves and those close to them. We still have lawmakers and celebrities with active cases of sexual violence against them. The government has continued to pass discriminatory laws like the Trans Bill 2019 and Muslim Women Act that continue to affect women and non-binary persons and oppress them. My point here isn’t to point out the shortcomings of the government, but to prove that the government has taken no substantial actions that prevent violence against women. And they keep getting away with it because of death penalties.
The judiciary is supposed to play a preventative role in decision-making. Judiciary and criminal trials exist not just to decide a punishment for the criminal, but to ensure more lives are saved using the judgment it delivers. For a moment, capital punishment sounds completely fair – until we realize that it’s nothing but a means to cover up societal corruption and failed policies. Our goal should not be revenge, it should be prevention.
These problems get even more complicated when you take into account real-life issues. Research proves that in most cases, the rapist is known to the survivor/victim. Do you really think survivors and minors would feel comfortable letting someone whom they know, whom they rely on financially – die? It gets even more complicated when we take a class and caste perspective. It is fairly obvious that the general public would be less inclined to hang a beloved superstar or player, while not bat an eyelash when it comes to someone on the fringes. So if the judiciary continues to hand out capital punishments to only those that the public outrages against – isn’t it just selective killing?
Who is the death penalty really helping?
I don’t consider death sentences the proper justice to the survivor/victim or their family. When Ajmal Kasab was hung, people were out in the streets celebrating. Today people will congratulate each other, talk about India’s effective justice system and send sweets to each other. What we forget is that these aren’t moments to rejoice, but to sympathise with those who suffered and do everything in our power to stop it from happening again. When Osama Bin Laden was killed for his involvement in 9/11, Americans were criticized for rejoicing it. Must we allow the same in our country?
Dozens of research initiatives and reports have proved that there is no link between the existence of the death penalty and a reduction in rape cases.
My real question is: will killing someone bring back what we lost? Retribution is immoral and it doesn’t bring closure. We’ve been brought up with a mindset that justifies this, that allows us to channel our anger into violence. Our families and friends talk like capital punishment is the highest form of justice – when it’s the most useless one.
While there’s no comprehensive record of death penalties since independence (most of them were either lost or destroyed), interviews conducted by NLU on more than 350 convicts on death row has shown that an overwhelming majority of them are from vulnerable classes, castes and religious minorities. In one category, 94% of the prisoners sentenced to death are Dalits and religious minorities.
When we go above the technical and political aspects of the death penalty, we’re stuck by the moral backing to it. Time and again, we come back to the essence of a death penalty – which is retribution. Remember that retribution isn’t practised to prevent future violence but to deliver what we feel is apt justice towards someone. Retributivists believe in revenge – taking an action against someone even if it won’t solve any problems. That is not the role of a judiciary. So in a civilized country like India, whose ideals lie in secularism, democracy, and socialism – this is completely wrong.
“The death penalty can be tolerated only by extreme statist reactionaries who demand a state that is so powerful that it has the right to kill.”
If the state is to get a hold over capital punishments, who is to say that it won’t use it for its own benefit to squander dissent? While the areas of the death penalty are still limited in India, who is to say that they won’t expand again?
The death penalty is morally, politically and ethically wrong. It works on a flawed system of revenge and retribution. There are so many policies that the government could implement, like subsidizing education, making reporting rape easier, rehabilitation of convicts, deterrence, improving jailing facilities – the list keeps going on. But a method that is as old as Ancient Greece is not the procedure that can work in 21st century India.
Featured image used for representative purpose only. Image source: EEAS