December 16 gang rape verdict: A death sentence lulls us into a false sense of security

On July 9, the Supreme Court dismissed the review petitions of Mukesh Singh, Vinay Sharma and Pawan Kumar, three of the four accused, currently on death row for the December 16 gang rape and murder case, and upheld the death penalty. And yet again, we as members of society, seem to celebrate it. Reportedly, according to Rekha Sharma, chairperson, National Commission for Women, justice in this case has been delayed but not denied, implying, it would seem, that the due process guarantees of our Constitution impeded the actualisation of a certain kind of justice. In the eyes of many, the redeeming factor for this supposedly unnecessary delay is the reaffirmation of the death sentence.

To be clear, the violation of bodily and sexual integrity and autonomy of any person in any context should jolt societies, communities and individuals and it should prick our conscience. In the 2017 judgment, upholding the death sentence of all four co-accused, the Supreme Court suggested that the outrage caused to the collective conscience of society demands that the death sentence be given in this rarest of rare case to protect women from similar crimes. With all due respect, however, the court has no metric by which to measure this selective outrage it so heavily relied on to reach its conclusion. The heterogeneity of the collective and the amorphousness of outrage both defy the consistency and uniformity required of any measure or for that matter, label.

Having said that, the death sentence is, in any case, neither a short term nor a permanent solution to sexual offences against women, for the simple reason that punishment must necessarily attend to the perpetrator post-fact. A solution examines the underlying causes of the problem and addresses those causes in order to prevent the problem from reoccurring. What the death sentence, very cleverly does, though, is through misdirection, lull us into a false sense of security. The death sentence has become our only solace to which State and society are increasingly and repeatedly turning to, particularly for complex systemic problems as evidenced by the recent Ordinance providing for the death penalty for rape of girls below 12 years of age.

As with the Ordinance, having the death sentence on the table completely alters the frame of reference in which we define the problem itself. The discourse shifted to an entirely different plane and allowed the problem to be defined in terms of punishment. It eclipsed any attempt to understand the causes and nature of sexual violence against children, the efficacy of the current legal framework as a redressal mechanism, the hurdles in its implementation, and most of all, the needs of the child victim in and outside the justice system.

The success of the death penalty as a punishment lies not in its ability to prevent crimes, but in its capacity to repeatedly turn our attention from the cause to the consequence. That we call for the death penalty so often, should perhaps give us cause to reassess its efficacy as a safety mechanism and a solution, rather than celebrate every instance of its imposition.