5 min readSep 6, 2024 11:32 AM IST
First published on: Sep 6, 2024 at 07:45 AM IST
The rape and murder of a doctor at the R G Kar Medical College and Hospital has reignited the demand for stricter laws and the death penalty for rape. Unsurprisingly, the West Bengal government has significantly enhanced punishments for sexual offences against women and children in the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024 passed by the state assembly. Among the proposed enhancements is the mandatory death penalty for rape that results in death or permanent vegetative state of the victim. Mandatory death penalty has been included despite it being declared unconstitutional by the Supreme Court in Mithu v State of Punjab (1983). While these proposed state amendments to central laws (BNS 2024 and POCSO 2012) will require the approval of the President to become enforceable law, these measures should force us to confront larger questions. First, will harsher punishments contribute to preventing sexual violence in our society? Second, irrespective of its preventive potential, should we impose harsh punishments on individuals guilty of such offences as something that they “deserve”?
The ingrained political tactic of responding to high-profile protests over incidents of aggravated sexual violence with harsher punishments is not new. There were significant enhancements to punishments in the wake of the 2012 Delhi gang rape, and the incidents of child rape and murder in Kathua and Unnao. Faced with mounting public and political pressure, governments find it convenient to make the laws stricter to prove their commitment to addressing sexual violence. But the hollow nature of this engagement must be obvious to us. Harsher laws are part of the established political playbook to quieten public clamour but can do very little to prevent incidence of sexual violence in our society. Instead, they play on society’s collective anger and desire to inflict harsh punishment in the immediate aftermath of such incidents.
In our reflections on whether harsher laws will prevent sexual violence, we need to confront the actual source of sexual violence in our society. The dominant understanding of sexual violence is as isolated actions of individuals with deviant behaviour. However, sexual violence is an outcome of deeply ingrained gender, caste, and religious hierarchies that routinely produce and legitimise sexual violence. Rape is an assertion of power. It is part of a larger spectrum of violence against women towards which there is widespread apathy in our homes, workplaces, institutions etc. While the spectre of sexual violence created in public discourse is one of stranger rape, perpetrators are well-known to the victims in over 90 per cent of rape cases.
Suggestions that the death penalty will deter offenders make flawed assumptions about the Indian criminal justice system. We assume that those charged with rape end up being convicted for it. But that is unfounded. Conviction rates in rape cases are under 30 per cent. The punishment stage of a trial is activated only if the accused has been held guilty. Criminologists across the world have argued that it is the certainty of the punishment and not its severity that deters crime. Challenges in effective and prompt investigations, concerns with prosecutorial capacity and quality, questions about the institutional capacity of courts to conduct fair trials without undue delay are all impediments to pursuing accountability for sexual violence.
Focusing on harsher punishments allows governments to divert attention from these difficult questions and effective long-term measures. The shrill invocation of the death penalty as a response also ignores the justice needs of victims. It is politically convenient and ignorant of reality to think that victims’ needs can be captured by resorting to harsh punishments. Navigating pre-trial and trial stages, including registering police complaints, emerge as the biggest challenges for survivors. Survivors are subjected to inhumane treatment by doctors during medical examination. The lack of witness protection schemes forces many survivors to compromise out-of-court, especially when perpetrators are from dominant backgrounds.
When the death penalty for rape fails on account of its ability to prevent rapes, it is justified as a proportionate response to a grave crime. Reasoning that rape without murder warrants the death penalty, a punishment also prescribed for ending another person’s life, reinforces the patriarchal logic that “rape is a deathless shame” for survivors. It undermines the hard-fought efforts of women’s movements across the world. Subscribing to the death penalty also overlooks the role of our society in perpetuating and promoting sexual offences and creating conditions of impunity for perpetrators. Putting the complete blame on perpetrators is highly self-righteous for a society that actively contributes to a culture that trivialises violence against women. We must recognise our hypocrisy in being selectively enraged about stranger rapes only when the bodies of victims bear marks of violence serious enough to shake our collective conscience.
While there is no one way to tackle sexual offences, tougher laws and the death penalty are undoubtedly the wrong ones. We require broader social reforms, sustained governance efforts, and stronger criminal justice institutions. We must call out the hollow tough-on-crime political agenda on sexual violence. It is nothing but a distraction.
Surendranath and Vishwanath are with Project 39A, National Law University, Delhi. Views are personal
Harsher laws are only a political response to public outrage. (Illustration by C R Sasikumar) 
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