The debate surrounding the death penalty in India is a recurring cycle, with each resurgence fueled by tragic events. The latest example is the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, enacted in response to the brutal murder of a doctor in Kolkata. This bill, which introduces the death penalty for rape, while passed by the West Bengal Assembly, has faced criticism and been referred to the President for consideration. The tragic incident, unfortunately, is not isolated, with similar cases involving Dalit/Adivasi women and children reported across other Indian states.
The grim reality is reflected in national statistics: in 2022 alone, India recorded 31,516 rapes and 248 murder cases involving rape/gang rape. Rajasthan, Uttar Pradesh, and Madhya Pradesh are among the states with the highest reported rape cases. Globally, the death penalty is on a decline, with nearly three-quarters of countries having abolished it in law or practice. However, India, along with several other South Asian countries, remains a retentionist. While no executions were recorded in 2023, India had 120 death sentences and a rising death row population, reaching the highest in two decades.
The plight of those on death row, many spending years in prison with severe mental and physical health issues, raises concerns about procedural flaws and potential biases within the criminal justice system. Prison overcrowding, particularly affecting undertrials from marginalized communities, further underscores the deep-rooted systemic inequalities.
The introduction of the BNS, while aiming for positive changes, has inadvertently increased the number of offences punishable by death, shifting towards a more deterrent regime for sexual offences. However, this approach has not demonstrably improved women’s safety and empowerment. The prevalence of public outrage and calls for capital punishment, often targeting perpetrators as ‘monsters’ or ‘savages,’ reveal a societal tendency towards revenge rather than addressing the root causes of violence. This framing creates an ‘othering’ of the accused, justifying their death as a means of vengeance, a sentiment seemingly fueled by cultural and religious narratives celebrating death. Such calls for ‘justice’ prioritize the honor of the family, community, and nation over the victim’s autonomy and needs, which are often disregarded in judicial discourse.
The reality of everyday violence against women and children, normalized and tolerated, further complicates the issue. This includes public flogging, sexual violence, and killing, both by strangers and within families, often without public intervention. The widespread accessibility of victims’ videos online underscores the troubling normalization of such violence. The Justice Verma Committee, recognizing the limitations of the death penalty as a deterrent, had recommended against its implementation. However, these recommendations were disregarded by the Union Cabinet.
Therefore, dismantling the carceral politics of sexual violence requires a shift towards abolitionist feminism, promoting human rights-based language and understanding. Such a movement would not only oppose the death penalty but also life imprisonment without parole as responses to sexual violence. Its focus would lie in addressing the social, cultural, and structural issues that fuel such violence. This includes tackling economic inequalities, ensuring representation for marginalized communities, and investing in quality education and healthcare. Furthermore, it necessitates providing comprehensive support to survivors and their families, enabling access to education, employment, healthcare, and family life.
Addressing the deeply entrenched patriarchal structures is crucial. The notion of female bodies and virginity being tied to the honor of the family, community, and nation needs to be challenged. This requires significant policy initiatives focused on educating sons to respect and protect daughters. Ignoring these systemic issues risks rendering the abolition movement superficial and ineffective.
The death penalty, in its ease of application, allows the state to avoid addressing the critical shortcomings in the police, prosecution, judiciary, and survivor support systems. It is imperative to move beyond knee-jerk reactions and adopt evidence-based policymaking that prioritizes justice and accountability. This includes investigating the potential influence of judges’ socio-religious background on their sentencing decisions.
India’s pursuit of social change through legal reform aims to ensure safety and support for survivors and their families. However, it is vital to scrutinize how laws, including those related to contracts, family, labor, and property, contribute to the socio-economic inequalities faced by women and children, especially from marginalized communities. These laws often perpetuate asymmetrical distribution of wealth, knowledge, and power.
The abolition of the death penalty and the creation of a safe environment for women and children are complex tasks. They necessitate critical engagement with the law, understanding the interplay of caste, race, religion, and gender, and promoting a feminist perspective that recognizes sexual violence as an act of power rather than simply sex. Public and judicial awareness campaigns are essential for debunking the myth of the death penalty as a solution to sexual violence and fostering gender equity across all spheres of life. Punishment alone cannot address the root causes of the problem, and a fundamental shift in societal values is needed.
