A legislative scarecrow

The death penalty and swift timelines for cases of rape of minors is an ineffective deterrent and builds insincere expectations of justice.

Most conversations on the death penalty gradually ascend in decibel, proceeding from debate to damnation. Gripped in the moral panic of regular news reports of horrific rapes and sexual abuse of minors a recently promulgated ordinance permits judges across the country to sentence convicts to death. Cases of minor victims further require stricter timelines of two months for the completion of investigations and appeals within six months. This adds to the existing bounds of two months within which the trial has to be completed from the start of examination of witnesses. Facially, it seems that the government has by enacted a stringent law with incredible penalties and harsh timelines but the deterrence to sexual crime, especially against minors is only skin deep.

The first issue is with the capital punishment which remains a contentious issue which conflicts even self-proclaimed humanitarians. Many signify their discomfort with it in theory but seek to permit its practice as an exception. Here, the judicial doctrine of, “rarest of the rare” with it’s neat phrasing and phonetic appeal discharge any moral guilt that comes from the state essentially committing premeditated murder. The proponents of, “rarest of the rare” argue that in a small, sliver of category of violent crime, one that has elements of barbarity an offender forfeits the right to membership in a modern society. It is reasoned that offenders by their very conduct become sub-human and like a malignant organ must be carved out by a scalpel to save the health of a republic.

The primary problem with this reasoning is that a growing judicial recognition that the doctrine of the, “rarest of the rare”, is frequently arbitrary. Despite, it requiring a balance sheet approach, judges have on introspection have remarked as to its grievous accounting errors. It’s inconsistent application targets indiscriminately and without precision, and hence it ends up being used selectively in instances where media reports highlight specific cases. This is not a problem which can be fixed by either re-working the law and after examining the issue at length, Former Justice A.P. Shah in his former capacity of the Chairperson of the Law Commission in 2015 recommended the complete abolition of the death penalty.

Now, a seemingly attractive alternative for many, one that may even be broadcast with moral indignation, is, “so what?”. There is a growing impatience with legal processes, and many in the general public already see the police and the courts as oppressors. Somewhat perversely many now want to make this oppression work for them, reasoning that, even if the undeserving are murdered, it will instil fear against rape and build deterrence. Such understanding conflicts with a basic understanding of our constitutional values which aim to build a society based on compassion and understanding rather than intimidation and force. There is a utilitarian benefit to the approach in a harshly unequal society like India. Path breaking research by the Centre on the Death Penalty at the National Law University, Delhi has shown that three-fourth of prisoners on death row are economically vulnerable and a greater number from backward classes. They lack the means and the availability of legal counsel to lead their defence to a reasonable threshold of competence. Further failure of the rights of the accused will now result from the shorter timelines, which even if they work may lead to incorrect and incomplete investigation and evidentiary processes. As Upendra Baxi remarked decades ago, “justice delayed is justice denied, but justice hurried is justice buried”.

The discriminatory nature of the death penalty shows through in most data sets when the total class of offenders are broken down on a socio-economic grade. It is not hyperbole to say that capital punishment is usually reserved for those who lack capital. This undermines a social fabric in which there is a pre-existing disproportionate concentration of wealth and hence will cause greater social division. The upper and middle classes, who are usually the first votaries for capital punishment for sexual crimes in metropolises must reconsider their demands, out of self-preservation if not empathy.

To conclude, any legislative measure underpins a policy decision, an objective which the law seeks to achieve. A severe penalty and swift timelines build insincere expectations of justice. It is a legislative scarecrow which is counterproductive and has questionable effectiveness. We need to shift attention from midnight ordinances and legal amendments to structural reforms of police forces and the criminal justice system. Looking beyond the law to make social programmes the primary focus to reduce sexual violence. We must stop shouting to listen to our inner reason.

(An edited version of this article was published in the Hindustan Times on May 2, 2018).

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