Form of penalty is secondary only to swift judicial process

Seven years after Nirbhaya, the rape and murder of a young veterinary doctor near Hyderabad has outraged India. Then, as now, protestors took to the streets across the country. Then, as now, anger erupted in Parliament and legislators demanded tougher penalties for rape. Then, as now, they suggested castration, physical or chemical, of convicted rapists.

Rajya Sabha MP Jaya Bachchan went a step further, in proposing the public lynching of the four accused. Another woman MP, Vijila Sathyananth, demanded that they be hanged before the year-end. Their anger is understandable. Both MPs are mothers to daughters. Their empathy – indeed, their grief - for the victim is palpable.

Even as the MPs expressed their angst in Parliament, a rash of brutal rapes made headlines across the country. A case eerily similar to that of Hyderabad was reported from Buxar in Bihar. The victim's corpse was so severely burnt that she could not be identified.

The common objective of the public and its representatives is to put an end to the never-ending incidence of brutal rape-murders in India. Will tougher penalties achieve that objective? At the very least, will they ensure that justice has been served?

The jury is still out on the question of whether capital punishment deters crime. More than 30 child rapists have been awarded the death penalty in Madhya Pradesh since the law on rape was amended in 2018. The numbers reveal that the law is being implemented in the state, but not whether it is acting as a deterrent.

Even in the case of non-violent crimes like corruption, there is no verifiable data on whether capital punishment serves as a deterrent. In crimes of passion, hate crimes and perversion-induced crimes, the outcome of harsh penalties is even harder to assess. Whether a paedophile sex offender can restrain himself in the face of capital punishment varies from case to case.

This brings us to the second question: has justice been done? Imprisonment removes the child rapist from society, thus preventing him from perpetrating further crimes. But there is no easy answer to the question of whether a jail term alone constitutes adequate punishment for his crime.

Does the death penalty amount to 'revenge' or to 'justice'? There is a clear line between the two; revenge is emotional, while justice is rational. The argument in favour of the death penalty for child rape rests on the lasting damage done to the victim. The rape-induced psychological trauma often translates, effectively, into taking a life.

In cases where the victim is not a child (ie, 12 years or less), capital punishment applies in cases of rape-homicide. Nirbhaya succumbed to horrific wounds inflicted during the brutal sexual assault. The Hyderabad victim was smothered after she was gang-raped and her corpse subsequently burnt.

Castration has been suggested as a penalty for rape, in addition to a jail term. This can involve surgical removal of the gonads, or ingestion of anaphrodisiac drugs which suppress sexual urges. The former is permanent while the latter is reversible.

Several countries, like Poland, Russia and South Korea allow forcible chemical castration of sex offenders. Others, like the UK, permit convicts to undergo the procedure in exchange for reduced prison sentences. Whether justice is served in such cases is open to debate. Castration removes the threat to society, but does it constitute adequate punishment?

A new and tougher law, as Vice-President M Venkaiah Naidu pointed out, is not required. There are two things the state can do to reduce the threat to women within the existing legal framework. The first is to ensure effective implementation of the law. In such cases, justice delayed is not just denied but dangerous, because the criminal remains at large. The longer the investigation and trial takes, the more likely the chances of evidence being lost and the criminal getting away.

The police investigation must be quick and thorough and the chargesheets solid enough to convince the judge. The courts, for their part, must deal with these cases on a priority basis. This does not apply to the first conviction alone. Subsequent appeals must also be dealt with expeditiously. Mercy petitions, too, should not linger and needless to say, presidents must use their discretion judiciously.

The second is to take steps to institute a more caring social system, which will lead to a less violent society. This is the “criminals are made, not born” argument. Poverty, illiteracy and deprivation can foster crimes of all kinds. Add gender inequality to the mix and sexual offences will result. This is not to argue that the poor and uneducated are more prone to violent crime. But violence does breed violence.

Vigilante justice, such as public lynching, is obviously not the answer. What is needed, as Naidu said, is “political will, administrative skill, change of mindset and then go for the kill”.

The writer is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author.

Also Read: Hyderabad rape-murder case: Protest held across nation for justice