In 2013, a 22-year-old woman who worked as a photojournalist in Mumbai was gang-raped in the Shakti Mills compound while she was on an assignment with a male colleague. In 2014, a sessions court sentenced three of the men involved in this crime to death by hanging. In November 2021, the Bombay High Court has commuted the death sentence of Vijay Jadhav, Qasim Shaikh and Salim Ansari.
This verdict has disappointed those who believe rapists deserve nothing less than the death penalty because of the brutality that the rape victim/survivor had been subjected to. However, the court's decision to stay the death sentence, and award life imprisonment, can also be viewed in keeping with feminist calls for the abolition of capital punishment.
In her article "Sexual Violence against Women, the Laws, the Punishment, and Negotiating the Duplicity" (2021) for the journal Laws, sociologist Suvarna Cherukuri argues that the death penalty "does not deter crime". This argument also appears in the 2013 report of the Justice Verma Committee, which the Centre appointed after the 'Nirbhaya' rape case in 2012 to review possible amendments to criminal law and suggest measures for faster trials and harsher penalties for criminals accused of sexual assault.
In January 2020, feminists and women's organisations from across India appealed to the President of India to stop the execution of Akshay Kumar, Vinay Sharma, Pawan Gupta and Mukesh Singh, convicted of the brutal assault, gang-rape and murder of a 23-year-old medical intern in Delhi in December 2012.
The statement acknowledged the "inexorable pain" of parents and loved ones of people who are raped and killed but cautioned against "efforts by politicians and parties, courts and other vested interests to capitalise on their pain and make the case a matter of the nation's honour." It notes, "The bare truth is that even after the Indian state executed Auto (Gowri) Shankar in 1995, Ranga and Billa (Kuljeet Singh and Jasbir Singh) in 1982, and Dhananjay Chatterjee in 2004 for rape/s and murder, sexual assault and killings continue unabated."
If the fear of capital punishment has been found ineffective in deterring rapists from raping, why is there such a strong push towards awarding a death sentence in our society? What is the nature of this so-called collective conscience, which demands punitive action of a kind that is unlikely to stop sexual violence against women? What gratification or victory does it seek from retribution? Who, if anyone at all, benefits from this notion of justice?
Cherukuri draws attention to the "disproportionate sentencing of racial-ethnic, religious minorities to death." She writes, "There cannot be a fair application of the death penalty; the 'rarest of the rare' doctrine is left to subject interpretations." This feminist critique of the legal discourse on rape and the death penalty is supported by lawyer Flavia Agnes. "Rape of Dalit women and girls by upper caste men is treated as less of a crime, and in contrast, those who are awarded death penalty in most cases of rape belong to the lower caste and class," she has said.
People who think that minorities in India are always being coddled might hear Agnes and Cherukuri's arguments as attempts to ask for differential treatment for perpetrators from marginalised backgrounds. However, Agnes backs up her statement by pointing out that the outrage in the wake of the Hathras rape case of 2020 was "nowhere close" to the protests that "erupted in almost every major city" after the 'Nirbhaya' rape case of 2012.
The Death Penalty India Report (2016), published by Project 39A at the National Law University, Delhi, notes that 76 per cent of prisoners sentenced to death are "backward classes and religious minorities." It does not suggest any "causal connection or direct discrimination" but does mention that the "disparate impact of the death penalty on marginalised and vulnerable groups must find a prominent place in the conversation on the death penalty."
There is another reason that makes many feminists oppose the death penalty. Agnes explains, "Where women are concerned, the state draws a line between the so-called 'good' woman who needs protection and the 'bad' woman who needs to be penalised as she does not fit into the 'good' woman category." According to her, when the state takes on the role of "a benevolent patriarch", it tries to "curb female sexuality". Bar dancers, sex workers, lesbians, and others, are at the receiving end of this punitive agenda cloaked as protection.
Do Justices Sadhana Jadhav and Prithviraj Chavan share this view of the state? It would be presumptuous to make any such conclusions from their judgement, which states that the rapists deserve imprisonment "for the remainder of their natural life." The judges added, "Every day, the rising sun would remind them of the barbaric acts committed by them, and the night would lay them with a heavy heart filled with guilt and remorse."
The judges are against the death penalty, but they want the rapists to suffer. They do not harbour any hope that the mindsets of these men might change. This is evident from their observation that "death puts an end to the whole concept of repentance, any sufferings and mental agony." They believe that the convicts "do not deserve to assimilate with the society" because they "look upon women with derision, depravity, contempt and as objects of desire."
The judgement states, "The conduct of the accused, and their bold confession to the survivor that she is not the first one to satisfy their lust, is sufficient to hold that there is no scope for 'reformation' or 'rehabilitation'." Is life imprisonment then a more severe punishment than the death penalty? If the fear of death does not deter men from raping women, what might? What kind of justice would genuinely open up possibilities for reformation or rehabilitation? These are important questions to think about, whether you identify as a feminist or not.
(Chintan Girish Modi is a freelance writer, journalist and book reviewer)
Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.