Death penalty for rape: A real fix or a quick fix?

The recent Pune rape case has brought back the horrors of the 2013 Nirbhaya case, sparking public outrage and demands for the execution of the accused. Amid this outcry, various sections of society—including Maharashtra’s political opposition—have also pushed for the implementation of the Shakti Bill, which is still awaiting approval from the Centre. This bill proposes stringent laws, including the death penalty, for sexual offences against women. 

Despite the severity of such crimes, a high number of sexual violence cases go unreported in India. However, in the few cases that do gain media attention, a set pattern unfolds—protests erupt, public demands escalate and the government responds. In every such case, shock, grief and anger sweep through society. However, it is the State's response to these emotions that warrants a closer analysis. Whether in Andhra Pradesh, West Bengal or Tamil Nadu, governments have consistently reacted by passing anti-rape bills that include provisions for death penalty and expedited trials.

Leaving aside the legal merits of these bills—many of which are still pending presidential approval—it is crucial to examine their underlying intent and actual impact. These bills amend the provisions of Bhartiya Nyaya Sanhita (BNS) 2023, the Bharatiya Nagarik Surakhsa Sanhita (BNSS) 2023, and the Prevention of Children from Sexual Offences Act (POCSO), 2012, and are often presented as an ‘ultimate fix’ for sexual offences against women. The premise behind such enactments is that stricter laws, which act as deterrents against crime, will eliminate crimes and foster a safer environment. 

However, this perspective directs attention to two critical issues: sufficiency of existing legal framework dealing with sexual offences against women; and impact of implementation of such bills in the past.

On the first count, the BNS already prescribes the death penalty. In fact, the now-repealed Indian Penal Code (IPC), also provided for capital punishement in certain rape cases. Further, on the second count, data does not support the notion that harsher penalties lead to fewer rapes. The National Crime Records Bureau (NCRB) reports that cases of sexual violence have increased despite tougher laws. This calls into question the effectiveness of such measured in addressing the root causes of these crimes. 

These reactionary bills often server as populist tools—designed more to appease sentiment than to implement meaningful reforms. Instead of fostering safer environments for women, such reactionary bills exacerbated the problem. They ignore a basic tenet of criminology, propounded since the time of Cesare Beccaria and Jeremy Bentham: that certainty of punishment, rather than severity, acts as the true deterrent against crimes. This explains why, despite both the BNS and IPC mandating severe punishments, sexual offences persist.

The Justice J S Verma Committee recorded the observation that provision of death penalty for rape cases will be regressive. The committee observed that the belief in a deterrent effect for serious crimes is a myth. The key issue is not a lack of stringent laws but poor implementation. The NCRB data highlights that only 27-28% of rape cases lead to convictions. This means that many perpetrators walk free. Strengthening laws without ensuring implementation is futile. 

Beyond their limited deterrent effect, such populist legislations also bring in their own complications, influencing the behaviours of both courts and victims. Mandating death penalties make judges more cautious in convicting the accused. As pointed out in studies, such as one by Preeti Dash, show that conviction rates in Delhi trial courts dropped after the rape laws were amended making them more stringent. This suggests that judges hesitate when the only available option is execution.

Moreover, in many of rape cases, the accused is known to the survivor—often family member or acquaintance. The prospect of a mandatory death sentence can deter victims from reporting the crime, as they face immense pressure from their families to remain silent. This further exacerbates underreporting, making women more vulnerable.

The viability and constitutionality of such laws must be carefully assessed. While it may seem reassuring to promise swift execution within weeks, the reality of criminal trials—involving extensive investigation, witness testimonies, and legal safeguards—makes such timelines unrealistic. Rushed verdicts open floodgates for shoddy investigation and increase the risk of wrongful convictions, undermining the very notion of justice. The distinction between swiftness and hastiness cannot be ignored.

Women's safety cannot be secured through reactionary legislation alone. Governments must undertake comprehensive research before introducing such bills. The consistent underutilisation of the Nirbhaya Fund, with nearly two-thirds of allocated funds left unspent, reflects a broader lack of political will to create safer public spaces for women.

At its core, sexual violence against women emanates primarily from an inherently patriarchal culture that objectifies and devalues women. There is a need to adopt a multi-pronged and data-driven approach squarely covering education, culture and implementation, instead of merely making changes on paper.  Lastly, it’s not only for the government but also for people at large to realise that none of the existing laws are toothless; rather, the need of the hour is change of attitudes that shape gender relations. Any measure taken must not be driven by political agendas catering to societal pressure but should be designed keeping the victim in the centre to ensure justice. 

(The writer is a Delhi-based advocate) 

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.