Shakti Mills gangrape: Why death penalty isn't the best deterrent

A sessions court in Mumbai became the first court in the country to sentence convicts in two cases of the Shakti Mills gang rape to death, under the amended section 376E. The section in question provides for death penalty in cases of repeat offenders—as was in this case, where a telephone operator and photojournalist were raped by three men now on death row.

Amid the din of jubilation lies a truth we have been failing to see—the conversation surrounding the death penalty in India remains deeply fragmented. When thinking of capital punishment, an assumption is made that it acts as a necessary deterrent. But the reality behind this assumption is never questioned.

Much of the debate in the public domain on issues of rape and death penalty is looked at from a plain ‘yes or no’ perspective. Cries demanding death penalty leave out the complicated relationship between executions, and its ability to prevent crime.

“The fact that the death penalty has been given shows that the survivor is not at the centre of the process. To me , the death penalty is a move for vindication of societal honour than of benefit to women who constitute the society,” says Supreme Court advocate Karuna Nundy.

Executions are  infrequent  in India. In the last 18 years, three people have been executed. But 400 remain on death row, with appeals at various stages of the judicial system: from appeals in High Courts to clemency petitions awaiting the President’s nod.

This small number may make the gap in the debate about capital punishments an easy one to miss.

An example of this is the haste with which rape laws were amended after the Delhi gangrape. From the government to the opposition and anyone else with a pen rushed to sign their assent to it. Public anger over the failure to provide women with a safe environment needed satiating, and so it was.

But little thought was given to enacting gender-neutral rape laws or examining whether death penalty is an effective way to prevent such crimes in the future—a question that most western counterparts like the US continue to grapple with.

“Even issues like witness protection, supporting the survivor through other means like counselling, are not considered. The new law is riddled with mentions of the death penalty to give the feeling that something is being done while pandering to patriarchial notions of ‘honour’,” Nundy says.

After all the death penalty also gives a comfortable moral position. It makes it easy to assume that a death sentence equals justice, for society and the survivor (in that order). It allows people to assume that if a crime like rape is countered with capital punishment, then enough has been done to ensure justice.

In the run up to the legal amendments, which have led to stricter rape laws, several ideas were fervently debated like castrating those found guilty of rape. But one common link between all these ideas of punishments, including using the death penalty, is the desire to see brutality countered with brutality again with little thought to whether it would do any good in the long run.

Nundy referred to several arguments tweeted during the sentencing argument. One such tweet, quoted special public prosecutor Ujjwal Nikam as reportedly saying that the convicts ought to be given the death penalty, because the survivor would never be the same without her “honour” and “chastity”.

“These are problematic assumptions to base convictions and the death penalty on,” she said.

Rapes haven’t stopped since these amendments. The accused in the Shakti Mills case had developed a fixed modus operandi; having committed enough rapes to know how to operate within the deserted mill compound, one woman after another. Their victims was easy to catch, the punishment and idea of ever being caught was too far removed from the reality of that lonely compound. But the real question remains: will hanging them to death make things better and is this a moral position that we find acceptable?