The death penalty cannot fix India’s rape problem. Here’s why

Ever since public outrage and anger erupted in the aftermath of the rape and murder of a doctor at the state-run RG Kar hospital in Kolkata on August 9, West Bengal chief minister Mamata Banerjee has been calling for a mandatory death sentence.

Now by unanimous vote, the West Bengal assembly on Tuesday passed the Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill.

Death penalty is already on the statute books as one of the punishments if rape results in death or leaves the victim in a persistent vegetative state. The other punishments are a life term or a minimum of 20 years jail time. Under the new bill, the only punishment for rape that ends in death or a vegetative state is the death sentence.

The BJP been highlighting the Mamata-government’s abysmal failure in the way the doctor’s rape and murder case was handled before the CBI stepped in and took over. The principal of the teaching hospital, Sandip Ghosh, now arrested on graft charges, was allowed to resign and transfer to another hospital.

Worse was the complete insensitivity in the way authorities informed the parents of their daughter’s death, claiming that she had died by suicide, then making her father wait for three hours before he could see her body, and even failing to file a police complaint, which was left for the father to do.

Mamata has responded by pointing to the pathetic record of sexual crimes against women in BJP-ruled states like Uttar Pradesh.

Sound and fury signifying nothing

Death for rapists has a nice, populist ring, but will not solve India’s rape crisis. Why? I can think of at least five reasons.

First, there is no evidence that tough sentences, including death, act as deterrents. If anything, rape numbers have gone up since the 2013 amendments that made punishment for rape tougher than ever.

In 2023, sessions courts across the country handed down 120 death sentences of which 53.3% were for sexual offences, according to Project 39A of the National Law University, Delhi. By the end of 2023, there were 561 prisoners on death row, the highest since Project 39A began tracking data in 2016.

But if you conflate this with the number of reported rapes—31,516 for 2022 compared to 24,923 in 2012 before the law was changed, according to the National Crime Records Bureau (NCRB)—then it is clear that more rapes are being reported after the law was made tougher.

Second, no judge wants to make an error when handing down a death sentence. But, “if the death penalty is the only option then judges may be reluctant to convict,” points out lawyer Mihira Sood who served on the Justice Verma Commission set up in the aftermath of the December 2012 gang-rape in Delhi.

A 2020 study by Preeti Pratishruti Dash of 1,653 judgments from trial courts in Delhi between 2013 and 2018 found a lower rate of conviction after the law was amended; 5.72% against 16.11% under the old law. “Mere legal reform, unaccompanied by governance and social reform, does not yield far-reaching results,” Dash writes.

Third, the death sentence actually makes the legal process longer not shorter. Even in a high-profile case like the 2012 Delhi gang-rape, it took seven years to execute the death sentence on the convicts—barring the juvenile who served his time and the convict who died by suicide in his jail cell. In a democracy, due process must be followed and convicts have the right to appeal all the way up to a presidential pardon.

Fourth, there are limits to which justice can be fast-tracked. Police will now be under pressure to conclude investigations in 21 days and there is a danger that in its hurry, these investigations might result in finding a scapegoat rather than the guilty. Trial court judges must now not only pass a mandated death sentence but also conclude examination of evidence in just 30-days, resulting in shoddy verdicts that can easily be thrown out on appeal. “You need to see how much of the delay is caused by general tardiness and how much by an over-burdened system,” says Sood.

Fifth, by taking away judicial discretion in applying the “rarest of rare” case clause, the Bengal bill opens itself up to challenge. “No provision can mandate that judges have to award the death penalty,” tweeted Arghya Sengupta, research director for Vidhi Centre for Legal Policy. “This is not constitutional democracy, it is constitutional quackery.”

Addressing a conference organised by the Bar Council of Maharashtra, Justice Abhay Oka of the Supreme Court said “mob rule” was being created with politicians promising capital punishment as only the judiciary can pass legal verdicts.

Tinkering with the law and adding tougher punishments, including death, play a role with assuaging public anger but do nothing to address the root cause of the problem which is a sense of impunity with which crimes against women continue unchecked.

So what does work?

If there’s one thing we’ve learned since 2012 it is that stopping rape requires a multi-pronged imaginative approach that involves police and judicial reform. It involves the education system—if in a decade we have been able to teach children good touch/bad touch, why is teaching consent and respect for women so hard?

What is evidently lacking is will. People selectively choose which rape offends them and which doesn’t (the child in a slum, the Dalit woman labouring in fields). Based on the severity of citizen protest, governments will set up committees, inquiries, or make cosmetic changes to the law.

If ever proof was needed for lack of political will it lies in the non-utilisation of the Nirbhaya Fund, set up to improve the safety and security of women. Analysis by Vidhi Centre for Legal Policy found that even though projects worth ?9,764.3 crore had been appraised, only ?4,087.37 crore had been released and just ?2,871.42 crore utilised.

The Bengal bill is a political band-aid slapped on without thought, desire or imagination. It does not address patriarchy or ingrained violence against women, including allegedly by the ruling party’s own strongmen. It does not talk about enhancing the status of women or the right to occupy public space. It does not address even basic design flaws—had doctors been provided with safe resting spaces in the hospital, would this crime have even taken place?

There are no easy answers, only hard work which no political party is willing to commit to, not even one headed by a woman.

Read Utkarsh Anand on the Bengal bill, overlap with central laws and the road ahead here

The following article is an excerpt from this week's HT Mind the Gap. Subscribe here.