Introduction

Within the limited area that rape takes up in policy and legislation on sexual offences, it is considered a serious crime. In addition to being subject to moral and character assessments, this area is heavily impacted by political issues including race, caste, and sexual orientation as well. Section 376A, 376E, 376AB, and 376DB of the Indian Penal Code, 1860 along with Section 14 of the Prevention of Child Sexual Offences Act, 2012 respectively prescribe death penalty as the maximum punishment for various natures of the offence of rape. This article aims to argue that death punishment for rape doesn’t serve the purpose of deterrence, but rather leads to certain unintended consequences.

The article, firstly, tries to point out the inconsistencies in the adjudication process of awarding death penalty that threatens the very basics of its existence; secondly, it analyses rape cases where death sentence has been awarded to the accused; and lastly, subjects the analysis to a feminist understanding and critique of rape laws and the recent developments in the area.

Death Penalty and its Adjudication Procedure

In the international legal arena, developments have been happening toward the complete abolition of capital punishment. However, in India, Bachan Singh v. State of Punjab did not only uphold the constitutionality of capital punishment but at the same time, provided for the test of ‘rarest of rare’ in order to expound upon the judicial approach to capital sentencing. The test basically iterates that the death sentence is to be only imposed in cases where the state of affairs in relation to aggravating and mitigating factors are exceptional to the extent that all alternative sentencing options are ‘unquestionably foreclosed’ and ‘special reasons’ must also be cited for the same. However, Justice Bhagwati, while giving a dissenting judgement in the noted case, pointed towards the discriminatory nature of death penalty. He brought to the fore arguments about how it is mostly when the accused is from a poor or marginalised community that the death penalty is awarded. The fact that 9 out of the 10 convicts who were sentenced to death for rape belonged to the community of Blacks is an evidence for the same. A 2016 study by the Centre on death penalty also showed similar results, as a majority of the death row inmates were found to be either from backward communities, both caste wise and economically or were religious minorities. [1]

The Supreme Court in Swamy Shraddananda v. State of Karnataka also didn’t shy away from accepting that the personal views and ideologies of judges hearing a particular case greatly influences its outcome, i.e., whether a death sentence will be awarded or not. Even in Rameshbhai Chandubhai Rathod v. State of Gujarat, the Supreme Court acknowledged that when it comes to rape of a young child, there’s a very thin line of separation between facts of cases where capital punishment is awarded from one where life imprisonment is awarded. This essentially means that despite the ‘rarest of rare’ test, there is always a scope for subjectivity in criminal trials due to a lacuna of consistency when it comes to the sentencing process. There have already been cases where convicts have been sent to the gallows but along with that also exists another host of cases where convicts were not punished similarly, despite having committed a crime alike in nature to that of the former or perhaps an even graver offence. This raises pertinent questions as to how one can navigate the intricacies of the punishment of death penalty amongst such arbitrariness in the criminal justice system. The delivery of justice requires that there be consistency in sentencing and no judicial ambivalence in the trial process, for death penalty out rightly means depriving an individual of their right to life. Every time a death sentence is imposed, there is always a caveat of the trial being susceptible to error. The issue becomes even more prominent when courts impose the death penalty without distinctly laying down relevant legal principles leading to a lack of uniformity of precedents.

The Doctrine of Proportionality

When it comes to the doctrine of proportionality, it maintains that the imposition of penalties should not be more than what is required to achieve the intended purpose of the criminal law. In Ralph v. Warden, it was held that death is an excessive penalty for rape, especially when the victim’s life has neither been taken nor endangered. The US Supreme Court gave a similar decision in the case of Coker v. Georgia as well. In addition to that, the social repudiation of a fair application of death penalty provisions as far as identities of accused of rape are concerned, also makes it a disproportionate punishment. In criminal jurisprudence, it is a well-recognised principle that an innocent should not be prosecuted even if it requires that hundreds of guilty escape. With respect to these principles of irreducible uncertainty and indeterminism, it seems quite dogmatic to award a death sentence with such air of finality. As much as it is important that justice be provided to the victims of rape, the death penalty is hardly the answer as far as its deterrence capacity is concerned.

Death Sentence in Rape Cases

Recent years have seen the reporting of a relatively high number of rape cases. But the truth remains that only certain cases received adequate attention from the public as well as the legal fraternity. Mukesh & Anr v. State for NCT Of Delhi & Ors, popularly termed as the ‘Nirbhaya case,’ where the victim was brutally raped and as a result of which she died, was one such case. Taking into consideration the severity of the rape and the shocking reaction that it had generated among the masses, the Court held that the case fell under the doctrine of ‘rarest of rare,’ and awarded capital punishment to the accused who were subsequently hanged. In the aftermath of this case, a separate commission called as Justice Verma Commission was constituted to analyse existing rape laws and recommend changes which formed part of the Criminal Law Amendment Act, 2013. However, one needs to question the extent to which the identity of the victim and the accused in this case was responsible for the public uproar and legal developments that followed the rape. It is tough to deny that the fact that the victim fit in the officially ‘desired’ criteria of being an upper caste urban female and the accused were low caste migrants belonging to rural areas played a part in the outcome of the case.

In Md. Mannan vs State of Bihar, the convict had raped and killed the victim. However, the court commuted the death sentence into life imprisonment as it believed that the situation did not satisfy the test of ‘rarest of rare.’ In its judgement, the court also enunciated upon the importance of the opportunity of deterrence and rehabilitation that a life imprisonment sentence provides as opposed to the death penalty which completely rejects any such possibility. In a similar case of rape and subsequent death of the victim in Amrit Singh v. State Of Punjab, the Apex Court said that though the crime was heinous, it didn’t warrant the imposition of the death penalty.

Effectiveness of the Punishment of Death Penalty for the Offence of Rape

It can be argued that the severity of a punishment is reflective of the graveness of a crime. Thus, if we do not punish a crime like rape with death penalty, it will affect people’s perception of the harmfulness of the offence. To counter this view, it is necessary to probe the deterrence effect of the death penalty. Has there been a decrease in rape cases since the introduction of the death penalty? Evidence suggests otherwise. Despite the imposition of harsher penalties, no decrease has been registered in rape cases since 1983 itself. [2] There is a high plausibility that instead of stringent punishments, proper enforcement of laws that promise certainty of conviction can prove to be a greater deterrent factor. The Law Commission in 2015, referring to death penalty’s vulnerability to misapplication, recommended that the punishment be abolished except in terror-related cases. The report also cited the arbitrariness of the punishment and its application leading to miscarriage of justice as reasons in support of proposing its abolition. [3] An example of this could be the fact that, in the eyes of law, rape of a 12-year-old is considered to be graver than that of a 13-year-old victim. Even though there can be no justifiable grounds for such distinction, the law has chosen to treat the former offence with greater harshness than the latter.

Amidst such arbitrariness, it becomes important to delink the idea of awarding maximum punishment to a convict in cases of rape and its effect on the victim’s ability to overcome the rape-inflicted trauma. Even the JS Verma Commission in its report came to the conclusion that a rape victim can lead a normal life, despite their trauma, when provided with adequate support from society. Instead of providing better safeguards, a law that imposes death penalty for rape dissuades the system, which is already biased against women, from punishing the accused leading to reduced rates of conviction for rape. There is also an added fear that imposing death penalty means that there is a greater probability of a rapist murdering their victim because their testimony could mean capital punishment for them. Thus, as far as retributive justice is concerned, it is the law enforcement authorities and the sentencing system itself that requires an overhaul. Awarding the death penalty cannot be a solution to the myriad barriers that rape survivors face in accessing justice.

Feminist Understanding of Death Penalty as Part of the Rape Laws

It cannot be denied that embedded within rape trials are patriarchal and mythical notions of gender stereotypes. These rape myths involve prejudiced and false beliefs about victims and rapists. Morality and male desire continue to mar judgements, for rape is considered as a blemish on the idea of honour and chastity associated with women. The court’s belief in the concept of ‘deathless shame’ that accompanies rape is thus often used as a means to justify punishments like the death penalty. However, such a premise exposes multiple flaws to this justification. It exposes the paternalistic gaze through which the state views a rape survivor’s trauma. In a retributive system, punishing rape with death penalty basically means equating rape to death and such an idea threatens to attach an unnecessary amount of stigma to the experience of a rape survivor. Heteronormativity in rape laws reflects that instead of protecting the victim’s physical integrity, its actual aim is to protect male interest by way of preventing any ‘decrease in the value of his sexual possession.’ Such a view dehumanises the victim and reduces her status to just being an object of sexual desire for a man.

Currently, rape adjudication in India strongly reflects the general public's attitude and how they see women and their honour. However, as easy it is to fall prey to a popular mandate, it is imperative for the courts to value constitutionality of laws rather than getting swayed by general arguments that are centred on a parochial understanding of the aims of criminal law.

Feminist scholars have also pointed towards the fact that in a majority of rape cases perpetrators are known to the victims. In such circumstances, the possibility of a capital sentence coupled with the delayed pace of justice complicates a victim’s problems when grappling with the conundrum as to whether they should file a case or not considering the various dynamics that are at play. This essentially proves that as long as the system remains inaccessible for women, imposing death penalty will not serve any meaningful purpose. Duncan Kennedy’s idea of the ‘tolerated residuum of abuse’ also questions the very assumption of laws being a means 

of eliminating sexual abuse when the truth is that only reduction in stigma and a system that facilitates enforcement of rights, and not harsh punishments, can encourage victims to come forward. Such reformation in the system will require investment in education, training, and sensitisation of police machinery as well as a genuine will on part of the state to bring in change. 

Reference: 

1. Shalini Nair, ‘Why death penalty for child rape, or why not?’ (The Indian Express, 30 April 2018) <bit.ly/3Y7wdHZ>
2. Ved Kumari and Ravinder Barn, ‘Sentencing in Rape Cases: A Critical Appraisal of Judicial Decision in India’ (2017) 59(1) Journal of the Indian Law Institute 1.
3. Law Commission of India, The Death Penalty (Law Com No 262, 2015).

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