The Debate on Capital Punishment

Marriage: The Free License to Rape?

The problem of underreporting of rape is an open wound that has been infecting the Indian social fabrics since antiquity. Even though the reporting rate has increased over the years, there are still lacuna, as ‘only one in ten cases is reported to police’19. And even such a dismal rate of reporting is ‘limited by the legal exception which rules out the possibility of most marital rape.’

The debate on marital rape has the women’s organization and the legal system situated

antagonistically to each other.

As far back as 2000, Sakshi has insisted the Law Commission not to exempt marital rape from the purview of the law, arguing that just as husbands are reprimanded by the law for us of physical force to harm the wife, similarly harms of sexual nature (marital rape) most also be criminalized. But the Commission in its 172nd Report on Review of Rape Laws did not pay heed to such a demand and made it an exception21, because it argues that, not doing so, ‘may amount to excessive interference with the marital relationship.

’

‘Consent will not be presumed in the event of an existing marital relationship between the complainant and the accused.’

Thus, the Justice Verma Committee did take into consideration the fact that women may be, and are indeed, raped by their husbands, and hence, asked for the criminalization of marital rape. The Criminal Law (Amendment) Act, 2013, completely sidelined this recommendation, when it made marital rape an exception. What is even more astounding is the clause attached to this exception ‘provided that the wife not being under fifteen years of age.

Get quality help now

KarrieWrites

Verified

Proficient in: Capital Punishment

5 (339)

“ KarrieWrites did such a phenomenal job on this assignment! He completed it prior to its deadline and was thorough and informative. ”

+84 relevant experts are online

Hire writer

’24 So for a married woman, rape by the husband is criminalized only if the wife is under fifteen years of age. Juxtaposing this with the age of consent set by the Act, which is eighteen years of age, it becomes clear that the intention is to place women’s sexuality under the patriarchal control, and marriage becomes a litmus test in deciding the appropriateness of the exploration of sexuality on part of the women.

Given the fact that the accused is a perpetrator in marital rape is a person ‘who was at one time trusted and loved [by the survivor], the survivor is likely to deal with bitter feelings of betrayal and broken trust.. the rape is a break in an important relationship.’25 The situation might be worse because, for some survivors, the accused may be the sole breadwinner of the family. Such intricate complexities associated with marital rape makes it all the more urgent to criminalize it.

19 Quoting Basu, in Karp, 3. Such underreporting is caused by the further victimization which the rape survivors face as they are stigmatized by the patriarchal society that places the family honor on the body of the women

The debate on marital rape is given a breath of fresh air by Indira Jaising, I, venture to suggest that there was never any basis for the assumption of consent, given once and for all, at the time of the “ I do“ ceremony of marriage, nor is there any basis to continue with the marital rape exemption in a country which guarantees the right to life and personal liberty to all citizens, and hence the marital rape exemption, which stands blatant testimony to the bias against women and their social and legal construction as appendages of men, be they fathers or husbands needs deletion.26

Despite numerous petitions and appeals, the legal system still continues to turn a blind eye to the plights of women, enduring sexual assault from the husband.

Abolitionist and Retentionist: The Debate on Capital Punishment

Brutal rape often captures the fury of the masses, which then gets translated into demands for the convicts’ execution, which is seen as symbolizing justice. This section explores the various debates on capital punishment, as unraveled since the 1940s.

The fact that India is adamant on its stand against the abolition of the death penalty can be understood well from the Constituent Assembly Debates, when Z. H. Lari proposed the insertion of Article 11-B that abolished capital punishment, except for sedition involving the use of violence, based on the considerations that human judgment is never infallible, but once a man’s life has been taken away, it cannot be reversed, and also emphasized on the credibility, or the lack of it, of the deterrent argument of capital punishment. Lari further stated that the punishment, ’..does not correspond with the sentiments which prevail now in the present century…..To those who commit murders on an occasion which provides them with some sort of provocation, my submission would be that they can be better punished if life imprisonment is inflicted upon them because they will live for many more years and repent their actions and possibly reform themselves.’

Lari’s proposal for abolition, however, had an exception- situations when the State and many lives of the citizens are endangered. But this exception too must be negated as time progress.

No members supported the proposal, but there were voices of dissent. Amiyo Kumar Ghosh argued that it wouldn’t be wise to ‘fetter’ the hands of the State, especially when the country was undergoing a transitional phase. Shri K. Hanumanthaiya argued that the convict would prefer death over life imprisonment, which seems to have been based on a very unwise judgment arrived at after having watched a ‘drama.’ Also, he laid importance on the fear principle, and not only on reformation, the necessitating the retention of capital punishment. And thus, the amendment was negatived.

Such reasoning seems to have been in work in Bachan Singh vs State of Punjab, 1982 when the constitutional validity of death penalty was upheld, arguing that capital punishment does not constitute a violation of Articles 14, 19 and 21 of the Constitution.27, though it declared that,

Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought Lot to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.28

However, the Supreme Court had, conveniently, taken a back seat in describing exactly what the ‘rarest of the rare’ criterion will imply, the leaving a vast space for discretion to be used.

To the relief of the human rights lobbies and legal experts who have been fighting for the abolition of the death penalty, Former President, Pratibha Patil, pardoned the death sentence of 35 persons, for which she had been criticized because most of the convicts were responsible for very heinous crimes, such as mass murders, including those of children and rape, too. But ‘she has not given the same treatment to political assassins like the killers of Beant Singh or Rajiv Gandhi’.(TOI June 22, 2012). However, abolitionists highlighted the unconstitutional nature of double punishment, of imprisonment and death penalty, in delays in carrying out executions.‘Also, while awaiting the outcome of the mercy petition, the prisoner of death row is subjected to a ‘ lingering death’, which is something more than mere extinguishment.’

The debate surrounding ‘to kill or not to kill’ resurfaced with the Delhi Gang rape case, where the convicts30 were sentenced to the death penalty and the appeals were rejected by the Apex Court. The Justice Verma Committee Report had recommended life imprisonment under Section 376E (Punishment for Repeat Offenders (in rape cases),31 but the Criminal Law (Amendment) Act, 2013, establishes death penalty (or life imprisonment) as a punishment for repeat offender.32 With the execution of the four convicts in 2020, the human rights camp and the retentionist found themselves with opposing views. The execution was well welcomed, not only by the parents of the deceased prosecutrix and the laymen of the country but by the top-notched officials as well. Union Law Minister Ravi Shankar Prasad stressed on the need to reform to the justice system so that it cannot be ‘manipulated’ by the convicts. Delhi Chief Minister, Arvind

27 Reversing the Supreme Court decision in Rajendra Prasad vs State of UP, in which Justice Krishna Iyer ruled that death penalty was violative of Articles 14, 19 and 21 of the Indian Constitution. Bachan Singh case, 6.28 ibid., 9. 29 Sinha, 24.

Six men were accused, but four were convicted and was hanged to death on 20th March 2020. Accused Ram Singh committed suicide in jail, while another accused, since ehe was a juvenile at the time of the act committed, was sent to reformation facility and released in 2015.

Kejriwal also mirrored smilier views, on the requirement of addressing the ‘loopholes in the legal system that which favor the culprits.’(The Hindu, 20 March 2020.)

Amnesty International India, however, described the event of 20th March as a ‘dark stain’ on India’s human rights record. “Seven years later, the power of the State to extinguish life stands entrenched, while women and girls in India continue to struggle to live a life of freedom, safety and dignity as equal persons.” Vrinda Grover, a senior advocate, and human rights activist, said. The International of Jurists (ICJ) argues that no matter how heinous the crime was, the deterrent factor in death penalty has been falsified. Contrary to the common fear that the abolition of death penalty will lead to a greater rate of greater inhumane crimes, the case of Canada demonstrates the falling rate of homicide post-abolition. ‘In 2002, 26 years after abolition, the homicide rate was 1.85 per 1,00,000 population, 40 per cent lower than in 1975, [the year before the abolition].’

Human rights activists caution against the aggressive public emotions blocking a rational assessment of death penalty, and the need to support Nirbhaya’s parents, while at the same time, opposing death penalty. The recent extrajudicial killing of the four accused in the Hyderabad gang-rape case (2019) is an indication of the disruption of the principle of checks and balances between the various branches of the law-keepers, aggravated by a failure to distinguish between public outcry and the application of rule of law.

The 262nd Law Commission Report (2015), recommended the abolition of death penalty (with an exception allowed in cases of terrorism)34, arguing that the social realities have drastically changed since 1967 when the 35th Law Commission Report established the validity of capital punishment. It further argues that the ‘rarest of the rare’ criterion didn’t put an end to the arbitrariness which reason a ‘major concern in the adjudicates of the death penalties’. The euphoria that this generated for the abolitionist was short-lived as the Criminal Law (Amendment) Act, 2018, gave a further blow when it established the death penalty (or life imprisonment) for rape or gang-rape of women below twelve years of age.

A recent affirmation of the legality of death penalty came in the Bombay High Court (In the Shakti Mills case June 2019) decision that retained the decision of the Session Court to sentence death penalty to three of the five accused in 2014. The judgment was criticized for having ignored the proportionality principle, according to which, the punishment must take into consideration the ‘gravity of the crime, the interests of the victim and of the society, and the purposes of the criminal law.’ The Court did not adequately address whether a sentence of life imprisonment would suffice in bringing deterrence, and also emphasized much on the narrative of ‘rape being worse than death’, thus sticking to a regressive paradigm of shame and honor that had been struck down by the Justice Verma Committee Report. (The Hindu July 22 2019).

So far, there seems to be no light at the end of the tunnel for those lobbying to put an end to death penalty. Baxi argues that rehabilitation is aimed at curing the men of its abnormally huge appetite for sex and death penalty is used as a deterrence. Thus, the establishment of death penalty will only lead to more acquittal because, ‘if this biologism underlies sentencing, the rapist will not be held responsible entirely for his act, [and] judges will be loathed to send men to death.’38 Increased pressure will be on the raped women to not file a case, or to withdraw the case, and also, leading to greater sexual disciplining of women. Thus, the intention is not to grant women autonomy and control over their body and sexuality, buy to ‘punish men for having breached the contract between the masculinist state and all men.’39 The entire rationale behind punishment for rape is based on the ‘construct of male sexuality.’40 Death penalty amounts to opting for an easy way out, to appease the public outrage, thereby rejuvenating people’s ‘faith and submission’ to the state and its legal system, and invokes ‘the state’s sovereign power over life and death.’

Conclusion

Despite the stringent punishment and the expansion of the use of death penalty in India, we do not see a desirable decline in the rape cases, which has only spiked, and all too simultaneously, the conviction rate in rape cases has remained more or less stable, apart from a slight increase in 2017.

This compels us to acknowledge the legitimacy of the argument that rights-discourse must not stop at law. With these acts and laws focusing merely on the element of deterrence and punishment, they are limiting themselves to short-term ends of justice delivery. What was not taken into account was the ‘very foundations of state neglect’, which Poulami Roychowdhury identifies as ‘overburdened courtrooms, ill-compensated and ill-trained police officers, and sexis and classist bureaucrats.’42 Justice is served, taking into account the socio-economic-political status of the parties involved.

Catherine MacKinnon asks a question that hits close to home, ‘why women are raped[?]’ This is a question that has remained unconfronted. Laws have laid down what needs to be done ‘after’ the act has been committed, but why such untoward incidents occur is paid no heed. The recent discovery of a private group chat on a social media platform (Instagram) demonstrates that the culture of rape is entrenched in the very patriarchal setting in which we have been socialized. The members of the group, boys aged between sixteen to seventeen, were found to be ‘casually’ planning a gang-rape, sharing images of females, without their consent, on the group, and sexually objectifying them. Thus, the culprit is the misogyny that penetrates all that comes in its path, and that sees the woman and her sexuality as existing for satiating the male-sex drive, and not for the woman in her own right.

The pervasiveness of patriarchy has been recognized by the Justice Verma Committee Report, in its chapter ‘Education and Perception Reform’, arguing for, …alternate forms of masculine expression and encourage expression and engagement with emotions of anger, frustration and other intense feelings. Caring and nurturing attitudes are largely understood as feminine virtues, thus one also has to be careful upholding another stereotype, but this would certainly help deconstruct the culture of superiority that pervades the society and is detrimental to all genders.

The existence of and our dependence on laws and acts cannot be done away, but treating them as a panacea to all the societal ills is what we must seek to circumvent. Retrospecting our individual actions and being discreet in our everyday, mundane speech and behaviors will go a long way in the fight against the culture of rape.