The continuing distribution of the death penalty

The life of the death sentence in India has been unending, and like a phoenix revives itself in different forms every now and then. The latest addition to this is the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, adopted by the West Bengal government, the reason being the brutal rape and murder of a doctor at Kolkata’s R.G. Kar Medical College and Hospital. It seeks to amend the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Protection of Children from Sexual Offences Act, 2012, in their application to the State of West Bengal. Among other things, it introduces the death penalty for the offence of rape.

While it has been unanimously passed by the Bengal Assembly, the State Governor was critical but has referred it to the President of India Droupadi Murmu for consideration. In the same month of August, there were several such cases in other States with the survivors being Dalit/Adivasi women and children. In 2022 alone, the National Crime Records Bureau recorded 31,516 rapes in India, nearly four each hour, and 248 cases of murder with rape/gang rape. Rajasthan, Uttar Pradesh, and Madhya Pradesh topped the list with 5,399, 3,690, and 3,029 recorded cases of rape, respectively.

Global data

In global figures from Amnesty International, at the end of 2023, nearly three quarters of countries had abolished the death penalty in law or practice: 112 countries had completely abolished the death penalty in law for all crimes, while 144 countries overall had abolished the death penalty in law or practice. But 55 countries still retained the death penalty in law and practice. In South Asia, while Bhutan and Nepal are the only abolitionists for all crimes, the Maldives and Sri Lanka are abolitionists in practice. India, along with Afghanistan, Bangladesh, Pakistan, are the retentionists. Project39A reports that in 2023 alone, India had 120 recorded death sentences. There were no recorded executions, and the number is down from 167 in 2022. Moreover, there were 561 people under the death sentence in India at the end of 2023, a constant rise since 2019, when it was 378. It is also the highest death row population in a calendar year in around two decades.

Most of such death row prisoners spend several years on death row, with some being exonerated later. They have severe physical, psychological and mental health problems and without any state compensation, which suggest grave procedural flaws and perhaps caste, class, and religious biases that pervade different institutions of the Indian criminal justice system and the people who exude power through them. Some of these prisoners commit suicide, signifying the inhuman prison conditions in which they are made to live, including prison overcrowding, as undertrials are mostly from the marginalises communities and left to fend for themselves. They continue to constitute three-fourths of the total number of incarcerated people in India.

On VAWC and societal responses

Unfortunately, the use of ‘decolonisation language’ that gave birth to the BNS (replacing the Indian Penal Code), while enabling a few positive changes, has increased the number of offences punishable by death from 12 to 18. India has shifted to a more deterrent regime for sexual offences without any significant change in women’s safety and empowerment. A glance at the nature of offences where the death sentence has been given by sessions courts in 2023, shows murder involving sexual offences at the top of the chart (64). Sexual violence against women and children (VAWC), particularly where the victim is killed, most often led to outbursts of public anger, grief, and shock, followed by the demand of capital punishment from certain sections for the rapists, who are often termed as rakshas, haivaan, wehshi darinda.

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This framing creates an ‘othering’ — as if the accused is not from the same society that we inhabit — and justifies death for them as a tool for avengement, which also seems to be rooted in India’s religious and societal culture that celebrates death (the killing of devils by gods and goddesses). Such calls for ‘justice’ to victims mostly use the honour of the family, community, and nation, ignoring the victim’s autonomy and what they want, which is also reflected in judicial discourse. On the other hand, there is a normalisation and politico-legal tolerance of everyday VAWC by men, including their public flogging, sexual violence, and killing — outside by strangers without any public intervention, and at home by husbands and relatives. Worryingly, searches for victims’ videos trend on Google and explicit sites.

The recommendations made by the Justice Verma Committee argued that the death sentence does not necessarily act as a deterrent against crimes such as sexual offences, including gang rapes. However, the Union Cabinet did not consider those recommendations. So, if the objective behind the death penalty is not fulfilled, the carceral politics of sexual violence must be dismantled by infusing abolitionist feminism. A key concern is also to bring human rights-based language to masses, the majority of whom do not have access to it, and whose thoughts towards the death penalty are shaped by cultural and religious narratives. There must be an abolitionist feminist movement to refuse the death sentence and even life imprisonment without parole as responses to sexual violence including rape. This movement should seek to understand and work upon the social causes and cultural conditions that lead to VAWC.

It also needs to work on the structural issues of redistribution of land and wealth for the marginalised communities, their representation in all spaces and institutions — both private and public — and a radical shift towards properly funded public education and health care. Governments and society need to work on the kind of targeted support and a range of state facilities rape survivors need in order to access education, employment, health, marital and family life. They also need to provide support to families of rape survivors, particularly minor siblings, if any, in terms of their access to education and resources, and take part in community building and a realisation of fraternity to ensure their dignity that the Indian Constitution upholds.

Complex issues but there must be a start

There need to be victim-centred procedural and institutional reforms and some sort of ‘beta padhao, beti bachao (educate the son, to protect the daughter’) policy initiative to eliminate the patriarchal notion of the honour of the family, community, and nation residing in female bodies and virginity. Invisibilising and ignoring the problems mentioned above will make the abolition movement appear superficial to say the least and forced from the top. The death penalty is the safest escape route from accountability as it does not burden the state with the hard work of reforming the police, prosecution, judiciary and supporting survivors. A culture of utilising existing research for an evidence-based informed policymaking by the central and State legislatures needs to be inculcated to avoid knee-jerk populist reactions that lead to criminal injustice. Additionally, research needs to be conducted on if and how the socio-religious background of judges plays a role in them awarding the death sentence.

Indian society is again striving for social change through legal reform. It seeks the care, the safety and the support for rape survivors and their families, alongside state accountability. But we must remain attentive to how the apparatus of laws (including contract, family, labour and property laws) constructs the socio-economic status of women and children, particularly from the oppressed castes and other marginalised communities. It asymmetrically distributes wealth, knowledge and power.

Abolition of the death penalty and creating a safer environment for women and children are complex issues. They require understanding, teaching, and engaging the law, critically. There must be an admission of and public talk about caste, race, religion and gender-based violence through an intersectionality lens, including by the organisations and the people who champion these causes. Feminists argue that sexual offences are more about power than sex.

There is a need for public and judicial awareness campaigns debunking the myth of the death sentence leading to a reduction in VAWC and to bring gender equity from within the private sphere (family) to the public sphere, rather than distributing death penalty and sentence inflation. Punishment alone cannot change society.

Shailesh Kumar is a Lecturer in Criminal Law at Royal Holloway, University of London, a Commonwealth Scholar, and an Editorial Board member of the Project39A Criminal Law Blog