The Delhi gang rape has created a great upheaval and in a high list of reforms death penalty for rapists is being incessantly mooted. For that, a need for amendment in Indian Penal Code is being clamoured. Identical demand was also raised in case of terrorists recently. We are of assumption that rapists – and terrorists will be deterred only if they are threatened of death penalty – a retributive theory of punishment.
Recently, according to a poll, India was rated fourth most dangerous country for women in the world ahead of even Somalia.
Even if Parliament amended the penal provisions, even then capital punishment for the rapists cannot be possible. The Constitution of India, the supreme authority of law, prohibits retrospective effect of penal law. Article 20(1) provides that a person cannot be subject to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. So, even change in rape law cannot execute the rapists.
Moreover, even death as deterrent and retributive will not reduce the crime against the women. India today stands in a minority group of nations where capital punishment is still in continuation. Over 144 countries have abolished the death sentence. India’s Supreme Court, by applying the “rarest of rare” doctrine, has minimized its scope to a great extent.
The overwhelming evidence from the countries where the death penalty has been abolished is that ending it has nowhere resulted in increase in crime. Also, imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.
Since 1995 it has been used only three times: on Auto Shankar in 1995, Dhananjoy Chatterjee in 2004, and Ajmal Kasab in 2012. So how will the insertion of death penalty in rape provision can ensure protection and safeguard to women?
Protest by people must not be heading for revenge and transformation of rape law but to transform the system – whether it is judicial, administrative or executive; and to transform your inner self.
The protest and resentment must be directed towards long delayed reforms in under-trained police force, reforms in investigation and prosecution, reforms is judicial system so that justice does not get delayed. Intimidation of speedy punishment will act more as a deterrent than threat of capital punishment which is rarely executed.
Along with all these there is also a need to shake our conscious. We are eking up in the society where the female feticide is at its acme. Cases for eve teasing and sexual harassment are engorging every month; and in the most of such cases the accused are always youth. We need to candle up our inner light as well without which every endeavour to ensure safe and humane world for women will be futile and hollow.
Time has come for youth to take active participation in the politics of country. A change is needed in the society and system of our country and this can be done only by educated and rational section of society.
Pankaj Rathi is a student of National Law University in Jodhpur. The views expressed by the author are personal.