It is not correct to assume that capital punishment will reduce rapes.
The recent gang-rape of a young girl has at last shaken collective conscience of the nation. For this, the credit must be given to the youth, students who took the fight to the streets. They rightly shooed the politicians because all the parties have within them legislators not only as accused but convicted of rape.
Of course, to fight this evil of rape we must stop commoditising women and treat them as equal, individual personality in their own right.
There are quite a few public demands that the punishment for a rapist, which at present is life imprisonment, should be substituted by capital punishment.
I can understand the anger of the people but both in practice and from human rights perspective, capital punishment is now banned in 178 countries of the world. Above all, we have the persuasive views of three hallowed Indians - Gandhiji, Jaya Prakash Narayan and Dr Ambedkar - who were strongly against capital punishment. I respectfully follow them.
Even as a practical measure, it is not correct to assume that capital punishment will reduce rapes. A survey conducted by United Nations concluded that research has failed to provide any evidence that death penalty will have a greater deterrent effect than life imprisonment.
The suggestion for death penalty is mostly advocated from a misapprehension that life imprisonment means only for 14 years. The Supreme Court has categorically held that life imprisonment means for life. Amended law can further clarify this and also provide that no remission will be given by the state and no parole will be given, even for a short period, not earlier than 30 years. I feel that life imprisonment, in fact, is a greater punishment because the accused will feel the mortal hurt throughout his life.
There is anomaly that though the law provides for life imprisonment, it also creates an exception which permits a court to award sentence of minimum of 7 years or 10 years for some special reasons – this is unacceptable. I cannot understand why, if once a rape is proved, there can be any reason for the court not to sentence the accused for life imprisonment. There can be no extenuating factors once a rape is proved – it is the most abhorrent crime.
Incidentally, the Central Government which is talking on making law stronger against the rapist needs to explain as to what was the special or secret reason which made Mr Chidambaram, the then Home Minister, recommend to President Patil to commute the sentence to life imprisonment of a person convicted of rape and murder.
Some have suggested chemical castration. This is more out of justified anger but is neither effective or in consonance with civilised laws. This is on a parity with the practise of punishing for theft by cutting the accused’s hands in the middle ages. Even according to medical opinion, castration is not permanent. It requires close supervision of the accused, which is difficult.
Though the setting up of fast track court is welcome, directive from the High Court to the lower courts to hear the matter day to day unlike the present practise where there are series of adjournments, will serve the purpose. Of course, this requires the prosecution to mandatorily file the charge sheet within 10 or 15 days of the arrest of the accused. This will result in the trial to be concluded within two months.
All political parties are shouting and purporting to show their concern for women. If this attitude is genuine, let them pass the Women’s Reservation Bill in the next Parliament session. This will be a fitting tribute to the memory of 16/12 victim.
(The writer is former Chief Justice of Delhi High Court.)