India is increasingly handing out death penalty to rapists and most cases are stuck in court
Death penalty in sexual violence cases is a ‘shortcut’ to placate public anger, say experts.
As Delhi gangrape convicts await execution, a reminder: death penalty does not ensure women’s safety
CAPITAL PUNISHMENT
As Delhi gangrape convicts await execution, a reminder: death penalty does not ensure women’s safety
India has an obsession with retributive and deterrent approaches and an increasing aversion to another goal of punishment – rehabilitation.
Jan 31, 2020 · Gale Andrew
After the gangrape and murder of a young veterinarian in Hyderabad in November and with the upcoming execution of the four convicts in the 2012 Delhi gangrape and murder case, sexual violence is again being discussed avidly across India. However, it might be more accurate to describe the discourse as being centred around notions of punishment and whether they are effective and efficient in their current form.
Though sexually violent acts are the springboard, the debate soon focuses on the “Nirbhaya accused” and the slow deliberations of the justice process. But, as the Indian women’s rights movement has repeatedly argued, the focus on punishment, thought not entirely illegitimate, takes away from the unaddressed problem of sexual violence in multiple and different contexts.
The criminal justice system’s response to sexual violence has been to move the punishment index higher and higher, with the death penalty being the harshest punitive response. Recent example of this trend include the amendments to the Protection of Children from Sexual Offences Act and the Indian Penal Code and the amendments passed by the Andhra Pradesh legislature to make existing punishments harsher and provide for the death penalty in cases of non-homicidal rape.
Obsession with retribution
Capital punishment has come to define our reaction to sexual violence. This reflects an obsession with retributive and deterrent approaches and an increasing aversion to another goal of punishment – rehabilitation.
The aim of rehabilitation is to reorient the offender and equip them with psychological, behavioural and technical skills to help them reintegrate into society as responsible citizens, and to reduce the risk of the possibility of their committing another offence. But even though India’s criminal justice system supposedly includes rehabilitation as a goal, we have barely scratched the surface of what it means or what it could translate into within the prison environment.
The current prison system, recently redefined as the “correctional system”, in its efforts at rehabilitative activities provides opportunities for education and unskilled and semi-skilled labour. But these opportunities are not available to all.
Death penalty in sexual violence cases is a ‘shortcut’ to placate public anger, say experts.
As Delhi gangrape convicts await execution, a reminder: death penalty does not ensure women’s safety
Sajjad Hussain/AFP
Jan 30, 2020 Swagata Yadavar, IndiaSpend.com
On February 1, India may witness its first death penalty in five years as the four men convicted for the December 2012 rape and murder of Jyoti Singh, or ‘Nirbhaya’, are hanged as per a warrant issued by a Delhi sessions court. President Ram Nath Kovind had earlier rejected a mercy petition filed by one of the convicts.
India has carried out only four executions since 2004, the last having been in 2015. Three of the accused were convicted of terrorism while one was convicted for raping a minor, as IndiaSpend reported in August 2018.
The upcoming executions in a case that had outraged India may not reduce crime against women and may, in fact, create a spectacle that distracts the government from implementing real reforms that can improve prosecution of rape cases, experts say.
A national debate
In 2018, 186 convicts were awarded the death penalty – a 53% rise from 121 in 2017, according to Prison Statistics India 2018, the latest available, of the National Crime Records Bureau or NCRB.
In India, death penalty is awarded only in the “rarest of rare” cases, an option that courts have exercised under a range of statutes including those related to murder, terror, kidnapping with murder, rioting with murder, drug offences and murder with rape, data show.
More than 40% of those sentenced to death in 2018 and 52.9% in 2019 were convicted for cases that included sexual offences and murder, said Death Penalty India 2019, an annual report by the National Law University, New Delhi.
Death sentences are increasingly being meted out for cases involving sexual violence as a response to public anger and anxiety, experts told IndiaSpend. “It is a shortcut they have adopted to placate the concerns of the public,” said Vrinda Grover, senior lawyer and researcher, adding that it seemed that the states and the system do not want to make the fundamental changes that will actually bring down the graph of sexual violence.
In August 2019, India amended the Protection of Children from Sexual Offences Act, 2012, to allow death penalty for the rape of children younger than 12 years. In what was termed as “extrajudicial killings”, four men accused of raping a 27-year-old veterinary doctor in Hyderabad were shot dead by the police in December 2019 “when they tried to flee”. The Andhra Pradesh Legislative Assembly subsequently passed a bill to allow death sentence in rape cases.
There is no evidence to prove that the death penalty is a stronger deterrent than life imprisonment, according to the Law Commission of India’s 2015 report on death penalty.
Similar demands for harsher punishment for sexual violence were raised after the brutal gangrape of Jyoti Singh in Delhi in 2012, which led to a number of reforms and legislative changes including the Criminal Law (Amendment Act), 2013 that brought offences such as stalking, voyeurism, acid attacks and sexual harassment under its purview.
However, while the reforms improved reporting of rape, there has been little or no impact on arrests and convictions rates, IndiaSpend reported in August 2019 based on a February 2019 study. The conviction rate for rape had been on a steady decline since 2007 and reached a historic low of 18.9% in 2016 from 27% in 2006, the study observed.
On February 1, India may witness its first death penalty in five years as the four men convicted for the December 2012 rape and murder of Jyoti Singh, or ‘Nirbhaya’, are hanged as per a warrant issued by a Delhi sessions court. President Ram Nath Kovind had earlier rejected a mercy petition filed by one of the convicts.
India has carried out only four executions since 2004, the last having been in 2015. Three of the accused were convicted of terrorism while one was convicted for raping a minor, as IndiaSpend reported in August 2018.
The upcoming executions in a case that had outraged India may not reduce crime against women and may, in fact, create a spectacle that distracts the government from implementing real reforms that can improve prosecution of rape cases, experts say.
A national debate
In 2018, 186 convicts were awarded the death penalty – a 53% rise from 121 in 2017, according to Prison Statistics India 2018, the latest available, of the National Crime Records Bureau or NCRB.
In India, death penalty is awarded only in the “rarest of rare” cases, an option that courts have exercised under a range of statutes including those related to murder, terror, kidnapping with murder, rioting with murder, drug offences and murder with rape, data show.
More than 40% of those sentenced to death in 2018 and 52.9% in 2019 were convicted for cases that included sexual offences and murder, said Death Penalty India 2019, an annual report by the National Law University, New Delhi.
Death sentences are increasingly being meted out for cases involving sexual violence as a response to public anger and anxiety, experts told IndiaSpend. “It is a shortcut they have adopted to placate the concerns of the public,” said Vrinda Grover, senior lawyer and researcher, adding that it seemed that the states and the system do not want to make the fundamental changes that will actually bring down the graph of sexual violence.
In August 2019, India amended the Protection of Children from Sexual Offences Act, 2012, to allow death penalty for the rape of children younger than 12 years. In what was termed as “extrajudicial killings”, four men accused of raping a 27-year-old veterinary doctor in Hyderabad were shot dead by the police in December 2019 “when they tried to flee”. The Andhra Pradesh Legislative Assembly subsequently passed a bill to allow death sentence in rape cases.
There is no evidence to prove that the death penalty is a stronger deterrent than life imprisonment, according to the Law Commission of India’s 2015 report on death penalty.
Similar demands for harsher punishment for sexual violence were raised after the brutal gangrape of Jyoti Singh in Delhi in 2012, which led to a number of reforms and legislative changes including the Criminal Law (Amendment Act), 2013 that brought offences such as stalking, voyeurism, acid attacks and sexual harassment under its purview.
However, while the reforms improved reporting of rape, there has been little or no impact on arrests and convictions rates, IndiaSpend reported in August 2019 based on a February 2019 study. The conviction rate for rape had been on a steady decline since 2007 and reached a historic low of 18.9% in 2016 from 27% in 2006, the study observed.
Source: National Crime Record Bureau via IndiaSpend
There is clamour for harsher punishment when the victim is from the upper or middle class and the offenders are from the lower class, said Flavia Agnes, women rights lawyer and director of Majlis, an organisation that provides legal help for women. If the opposite is the case, there is no such outrage, she said.
Push for death penalty
As of December 31, 2019, India had 378 prisoners on death row, the NLU’s report said. Trial courts imposed 102 death sentences in 2019, a drop from 162 in the previous year, it added. More than half of the death sentences – 54 of 102 – awarded in 2019 were for murders involving sexual offences, the report noted. Of these, the victim was younger than 12 years in 40 cases.
There is clamour for harsher punishment when the victim is from the upper or middle class and the offenders are from the lower class, said Flavia Agnes, women rights lawyer and director of Majlis, an organisation that provides legal help for women. If the opposite is the case, there is no such outrage, she said.
Push for death penalty
As of December 31, 2019, India had 378 prisoners on death row, the NLU’s report said. Trial courts imposed 102 death sentences in 2019, a drop from 162 in the previous year, it added. More than half of the death sentences – 54 of 102 – awarded in 2019 were for murders involving sexual offences, the report noted. Of these, the victim was younger than 12 years in 40 cases.
Source: National Law University via IndiaSpend
Death sentences in cases of murder involving sexual offences increased in the past four years. In 2016, 57.1% death sentences were awarded for “murder simpliciter”– a simple murder – while 18% were for cases of murder with sexual offences. By 2019, the latter rose to 52.9%, the report said.
Death sentences in cases of murder involving sexual offences increased in the past four years. In 2016, 57.1% death sentences were awarded for “murder simpliciter”– a simple murder – while 18% were for cases of murder with sexual offences. By 2019, the latter rose to 52.9%, the report said.
Source: National Law University via IndiaSpend
State High Courts and the Supreme Court confirmed 26 and 17 death sentences, respectively, in 2019, of which 17 or 65.3% and 11 or 57.1% were in cases involving sexual offences, data from the NLU’s report show.
Further, High Courts and the Supreme Court commuted 56 and seven death sentences, respectively, to life imprisonment that year, of which 15 or 26.7% and four or 64.7% were for cases involving sexual offences.
The national debates and calls for harsher punishments for sexual violence against women and children seem to have taken centre stage in the debate on capital punishment in India, said Anup Surendranath, executive director, Project 39A, a research project documenting death penalty convicts in India at NLU. He referred to two cases in 2019 which the Supreme Court, while confirming death sentences, cited in support of the 2019 amendments to the POCSO Act, though the crimes predated the amendments.
“To invoke this as a justification to give the death sentence is a gross violation of individual sentencing principles,” Surendranath said. “We also need to move beyond the notion that any punishment short of the death penalty amounts to ‘injustice’.”
Fast-track courts
While State Governments have been setting up fast-track courts to deliver swift justice, these have not made much difference. As of March 2019, India had 581 fast-track courts with approximately 590,000 pending cases, The Hindu reported in August 2019. Uttar Pradesh, India’s most populous state, had the most pending cases, while 56% of states and Union Territories –including Karnataka, Madhya Pradesh and Gujarat – had no fast-track courts.
One of the amendments that the Andhra Pradesh legislature passed included conclusion of the trial within 21 days – with seven days to complete the investigation and 14 days to complete the trial – as opposed to four months in the Criminal Law Amendment Act, 2013.
“Such reduction, and making the same mandatory, instead of ensuring successful prosecution, may result in a hastily-conducted haphazard investigation, or an incomplete chargesheet being submitted, or the accused being granted statutory bail – all of which will be detrimental to the interest of the victim and or the outcome of the case,” said Surendranath.
In 2019, the Supreme Court acquitted 10 people in three cases who were in jail for five years on the basis of questionable evidence. In one case, it ordered action against the investigating officer. In two other cases, it remitted the case back to the trial court for a fresh trial.
“To cast a responsibility on the overburdened and ill-equipped police to complete investigation within three weeks is bound to result in more acquittals,” said Surendranath.
The government must invest in training and sensitisation of the police so that they understand the nature of the crime and conduct the right kind of investigation, said Grover, adding that the prosecution must conduct a dignified trial. “But there is no work being done on any of these aspects,” she added. “We are either seeing an occasional conversation about death sentence or we are seeing a new form of instant justice like in Hyderabad. None of it is going to turn the cycle of violence.”
On-ground logistical problems include lack of enough forensic labs, and overburdened and understaffed fast-track courts, all of which point towards a lack of investment in the judiciary, said Grover.
As a result, conviction rates remain low. In 2018, a chargesheet was filed in 93.2% cases of rape and 94.3% cases of rape under the POCSO Act. However, only 27.2% cases of rape decided in 2018 ended in conviction as did 31.5% cases of rape under the POCSO Act, NCRB data show. Long delays persist too. In 2018, Indian courts completed trials in 17,313 cases while 138,642 cases of rape are pending – a rate of 88.7%.
Also, the focus on punishment comes at the cost of a focus on the victim. “To get conviction, you have to work with the victim and her family and give the family support,” said Agnes of Majlis.
As it is, rape victims rarely even report the crime – by one estimate, as many as 99.1% of the cases of sexual violence go unreported since the perprator is the husband. In most cases – 93.8% of rapes in 2018 – the offenders were known to the victim and 50% were the victims’ friends, family, neighbours or employers, NCRB data show. Apathy and foot-dragging of the law enforcement authorities and fear of retribution deter all but very few victims from registering cases.
This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.
State High Courts and the Supreme Court confirmed 26 and 17 death sentences, respectively, in 2019, of which 17 or 65.3% and 11 or 57.1% were in cases involving sexual offences, data from the NLU’s report show.
Further, High Courts and the Supreme Court commuted 56 and seven death sentences, respectively, to life imprisonment that year, of which 15 or 26.7% and four or 64.7% were for cases involving sexual offences.
The national debates and calls for harsher punishments for sexual violence against women and children seem to have taken centre stage in the debate on capital punishment in India, said Anup Surendranath, executive director, Project 39A, a research project documenting death penalty convicts in India at NLU. He referred to two cases in 2019 which the Supreme Court, while confirming death sentences, cited in support of the 2019 amendments to the POCSO Act, though the crimes predated the amendments.
“To invoke this as a justification to give the death sentence is a gross violation of individual sentencing principles,” Surendranath said. “We also need to move beyond the notion that any punishment short of the death penalty amounts to ‘injustice’.”
Fast-track courts
While State Governments have been setting up fast-track courts to deliver swift justice, these have not made much difference. As of March 2019, India had 581 fast-track courts with approximately 590,000 pending cases, The Hindu reported in August 2019. Uttar Pradesh, India’s most populous state, had the most pending cases, while 56% of states and Union Territories –including Karnataka, Madhya Pradesh and Gujarat – had no fast-track courts.
One of the amendments that the Andhra Pradesh legislature passed included conclusion of the trial within 21 days – with seven days to complete the investigation and 14 days to complete the trial – as opposed to four months in the Criminal Law Amendment Act, 2013.
“Such reduction, and making the same mandatory, instead of ensuring successful prosecution, may result in a hastily-conducted haphazard investigation, or an incomplete chargesheet being submitted, or the accused being granted statutory bail – all of which will be detrimental to the interest of the victim and or the outcome of the case,” said Surendranath.
In 2019, the Supreme Court acquitted 10 people in three cases who were in jail for five years on the basis of questionable evidence. In one case, it ordered action against the investigating officer. In two other cases, it remitted the case back to the trial court for a fresh trial.
“To cast a responsibility on the overburdened and ill-equipped police to complete investigation within three weeks is bound to result in more acquittals,” said Surendranath.
The government must invest in training and sensitisation of the police so that they understand the nature of the crime and conduct the right kind of investigation, said Grover, adding that the prosecution must conduct a dignified trial. “But there is no work being done on any of these aspects,” she added. “We are either seeing an occasional conversation about death sentence or we are seeing a new form of instant justice like in Hyderabad. None of it is going to turn the cycle of violence.”
On-ground logistical problems include lack of enough forensic labs, and overburdened and understaffed fast-track courts, all of which point towards a lack of investment in the judiciary, said Grover.
As a result, conviction rates remain low. In 2018, a chargesheet was filed in 93.2% cases of rape and 94.3% cases of rape under the POCSO Act. However, only 27.2% cases of rape decided in 2018 ended in conviction as did 31.5% cases of rape under the POCSO Act, NCRB data show. Long delays persist too. In 2018, Indian courts completed trials in 17,313 cases while 138,642 cases of rape are pending – a rate of 88.7%.
Also, the focus on punishment comes at the cost of a focus on the victim. “To get conviction, you have to work with the victim and her family and give the family support,” said Agnes of Majlis.
As it is, rape victims rarely even report the crime – by one estimate, as many as 99.1% of the cases of sexual violence go unreported since the perprator is the husband. In most cases – 93.8% of rapes in 2018 – the offenders were known to the victim and 50% were the victims’ friends, family, neighbours or employers, NCRB data show. Apathy and foot-dragging of the law enforcement authorities and fear of retribution deter all but very few victims from registering cases.
This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.
As Delhi gangrape convicts await execution, a reminder: death penalty does not ensure women’s safety
India has an obsession with retributive and deterrent approaches and an increasing aversion to another goal of punishment – rehabilitation.
A child holds up a placard during a protest against the
Hyderabad rape-murder case in Mumbai on December 3. | PTI
Jan 31, 2020 · Gale Andrew
After the gangrape and murder of a young veterinarian in Hyderabad in November and with the upcoming execution of the four convicts in the 2012 Delhi gangrape and murder case, sexual violence is again being discussed avidly across India. However, it might be more accurate to describe the discourse as being centred around notions of punishment and whether they are effective and efficient in their current form.
Though sexually violent acts are the springboard, the debate soon focuses on the “Nirbhaya accused” and the slow deliberations of the justice process. But, as the Indian women’s rights movement has repeatedly argued, the focus on punishment, thought not entirely illegitimate, takes away from the unaddressed problem of sexual violence in multiple and different contexts.
The criminal justice system’s response to sexual violence has been to move the punishment index higher and higher, with the death penalty being the harshest punitive response. Recent example of this trend include the amendments to the Protection of Children from Sexual Offences Act and the Indian Penal Code and the amendments passed by the Andhra Pradesh legislature to make existing punishments harsher and provide for the death penalty in cases of non-homicidal rape.
Obsession with retribution
Capital punishment has come to define our reaction to sexual violence. This reflects an obsession with retributive and deterrent approaches and an increasing aversion to another goal of punishment – rehabilitation.
The aim of rehabilitation is to reorient the offender and equip them with psychological, behavioural and technical skills to help them reintegrate into society as responsible citizens, and to reduce the risk of the possibility of their committing another offence. But even though India’s criminal justice system supposedly includes rehabilitation as a goal, we have barely scratched the surface of what it means or what it could translate into within the prison environment.
The current prison system, recently redefined as the “correctional system”, in its efforts at rehabilitative activities provides opportunities for education and unskilled and semi-skilled labour. But these opportunities are not available to all.
protest against the alleged rape and murder of a 27-year-old veterinary doctor in Hyderabad, during a demonstration in New Delhi on December 3. Credit: Sajjad Hussain/AFP
Indian prisons have a one-size-fits-all approach to rehabilitation so much of the potential of correctional services has not even been considered, let alone realised. But some other countries have created and implemented wide-ranging rehabilitation programmes, some of which are specific to prisoners convicted of sexual offences.
These “sex offender treatment programmes” are conducted in prison and use therapy to address the psychological and emotional makeup of prisoners. They equip convicts with helpful behavioural and thought responses to reduce the risk of them committing offences again. Correctional services in the United Kingdom, the United States, Canada, New Zealand, South Africa and Japan have successfully employed these programmes.
These programmes use a variety of techniques, but successful ones have generally focused on cognitive behavioural therapy and psychotherapy interventions. This involves therapy conducted either in groups or individually or a combination of both. While some programmes are mandatory, others require inmates to express their willingness to change before they can begin the course – a cornerstone of successful therapeutic interventions.
‘Prosocial behaviour’
The focus is on first ensuring that offenders take responsibility for their actions. They receive help in processing their own thoughts and behaviour patterns to understand how and why they committed a certain sexual offence. In this process, they develop the skills necessary to modify their behaviour, preventing them from violating another person. An important part of this involves them grasping the harm caused to the victims and survivors. Finally they practice “prosocial behaviour” by developing meaningful life goals that will lead them away from offending.
For example, Japan largely uses group therapy. The therapy involves two correctional officers who work with a small group of inmates. These inmates are grouped based on their “risk level”, considering factors such as age, criminal record, views on women, and ability to control sexual impulses. Those at a higher risk level receive more intensive treatment. South African prisons have a programme they call “Fight with Insight”, which is designed for youth sex offenders. It combines cognitive behavioural therapy with diversion therapy in the form of boxing.
These programmes have been based on scientific research on factors associated with sexual offending behaviour and interventions that have been successful in addressing the behaviour. Studies conducted on the effectiveness of these programmes in New Zealand and Japan have found that as long as the programmes are well-implemented, those who complete the programme are less likely to reoffend than those who did not receive any such support.
Despite this empirical backing, there appears to be no discussion in India about adopting a culturally and socially appropriate therapeutic approach to violent behaviour, particularly in cases of sexual violence.
Indian prisons have a one-size-fits-all approach to rehabilitation so much of the potential of correctional services has not even been considered, let alone realised. But some other countries have created and implemented wide-ranging rehabilitation programmes, some of which are specific to prisoners convicted of sexual offences.
These “sex offender treatment programmes” are conducted in prison and use therapy to address the psychological and emotional makeup of prisoners. They equip convicts with helpful behavioural and thought responses to reduce the risk of them committing offences again. Correctional services in the United Kingdom, the United States, Canada, New Zealand, South Africa and Japan have successfully employed these programmes.
These programmes use a variety of techniques, but successful ones have generally focused on cognitive behavioural therapy and psychotherapy interventions. This involves therapy conducted either in groups or individually or a combination of both. While some programmes are mandatory, others require inmates to express their willingness to change before they can begin the course – a cornerstone of successful therapeutic interventions.
‘Prosocial behaviour’
The focus is on first ensuring that offenders take responsibility for their actions. They receive help in processing their own thoughts and behaviour patterns to understand how and why they committed a certain sexual offence. In this process, they develop the skills necessary to modify their behaviour, preventing them from violating another person. An important part of this involves them grasping the harm caused to the victims and survivors. Finally they practice “prosocial behaviour” by developing meaningful life goals that will lead them away from offending.
For example, Japan largely uses group therapy. The therapy involves two correctional officers who work with a small group of inmates. These inmates are grouped based on their “risk level”, considering factors such as age, criminal record, views on women, and ability to control sexual impulses. Those at a higher risk level receive more intensive treatment. South African prisons have a programme they call “Fight with Insight”, which is designed for youth sex offenders. It combines cognitive behavioural therapy with diversion therapy in the form of boxing.
These programmes have been based on scientific research on factors associated with sexual offending behaviour and interventions that have been successful in addressing the behaviour. Studies conducted on the effectiveness of these programmes in New Zealand and Japan have found that as long as the programmes are well-implemented, those who complete the programme are less likely to reoffend than those who did not receive any such support.
Despite this empirical backing, there appears to be no discussion in India about adopting a culturally and socially appropriate therapeutic approach to violent behaviour, particularly in cases of sexual violence.
A protest in Srinagar in April 2018 against the rape and
murder of 8-year-old girl of Kathua in Jammu. Credit: PTI
In contrast, the system has relied upon the death penalty in such cases, while there has been no empirical evidence that the death penalty is an effective deterrent against crime. Even worse, introducing harsher punishments, such as mandatory minimum sentences of imprisonment, has been linked with a drop in the number of convictions.
For instance, a study in the United States by Andrew Leipold found that juries often acquit defendants, even when they are guilty, because they feel the punishment is too harsh. A study on the impact of the Criminal Law Amendment Act 2013 on adjudication of rape cases in Delhi found that the average rate of conviction dropped from 16.11% under the older law to 5.72% under the amendments. Yet, law and policy in India surrounding sexual violence has ignored research, and focused on ineffective punitive measures instead of scientifically proven programmes.
Little regard for effectiveness
Discussions around punishment in India are limited to the death penalty or longer periods of incarceration, with little regard for their effectiveness. The larger social discourse around punishment is on “deservedness” and “vengeance” but not on addressing social and individual contexts of the criminal act. Our prisons are massively overcrowded, underfunded and understaffed, with widespread reports of torture, poor sanitation and nutrition. This severe neglect of prisons is a complete mismatch with the goal of rehabilitation we claim to incorporate.
Such a punitive approach does not ensure safety for women. The overhaul required in the system, especially in our prisons, to give the goal of rehabilitation a real chance, is far too immense. It is so much easier to simply change the text of the law than to plan and invest resources in making our systems more effective. In our failure to challenge this approach, we allow the state to continue to abdicate its responsibility.
Gale Andrew is a Research Associate at Project 39A at Delhi’s National Law University.
In contrast, the system has relied upon the death penalty in such cases, while there has been no empirical evidence that the death penalty is an effective deterrent against crime. Even worse, introducing harsher punishments, such as mandatory minimum sentences of imprisonment, has been linked with a drop in the number of convictions.
For instance, a study in the United States by Andrew Leipold found that juries often acquit defendants, even when they are guilty, because they feel the punishment is too harsh. A study on the impact of the Criminal Law Amendment Act 2013 on adjudication of rape cases in Delhi found that the average rate of conviction dropped from 16.11% under the older law to 5.72% under the amendments. Yet, law and policy in India surrounding sexual violence has ignored research, and focused on ineffective punitive measures instead of scientifically proven programmes.
Little regard for effectiveness
Discussions around punishment in India are limited to the death penalty or longer periods of incarceration, with little regard for their effectiveness. The larger social discourse around punishment is on “deservedness” and “vengeance” but not on addressing social and individual contexts of the criminal act. Our prisons are massively overcrowded, underfunded and understaffed, with widespread reports of torture, poor sanitation and nutrition. This severe neglect of prisons is a complete mismatch with the goal of rehabilitation we claim to incorporate.
Such a punitive approach does not ensure safety for women. The overhaul required in the system, especially in our prisons, to give the goal of rehabilitation a real chance, is far too immense. It is so much easier to simply change the text of the law than to plan and invest resources in making our systems more effective. In our failure to challenge this approach, we allow the state to continue to abdicate its responsibility.
Gale Andrew is a Research Associate at Project 39A at Delhi’s National Law University.
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