In any civilized society the demand for justice has to be heard and the culprits need to be punished
In 2012, Nirbhaya rape case instigated thousands Indians to protest the widespread culture of rape and violence against women in Delhi. Recognizing the public anger, the government of India in 2013 passed an ordinance prescribing death penalty for those guilty of raping children under the age of 12. The criminal law amendment ordinance, which later became The Criminal Law (Amendment) Act, 2013 (Nirbhaya Act), amended the Indian Penal Code (IPC), the Evidence Act, the Code of Criminal Procedure (CrPC) and POCSO Act to introduce a new provision to sentence convicts of such crimes to death. However, the most significant and pertinent question still remain unanswered; does the possibility of death penalty really deter people in indulging rape (the most celebrated argument in favor of it)? Can capital punishment be a philosophically, legally and socially tenable idea?
Despite of legal possibility of death penalty for rape, almost five years later in Kathua, a rape case of a minor girl surfaced and shocked the Indian masses again. The poor tribal girl was repeatedly raped and finally murdered. Likewise, recently, a case of rape (however yet to be confirmed), torture and murder of a toddler girl in Tappal, Aligarh has been registered on 2nd of June. The whole nation is in great grief and anger. Peoples of the country are rightly agitated and outraged. People from all corner of the nation are demanding a death penalty for rapists.
Truly, as in any civilized society the demand for justice has to be heard and the culprits need to be punished. But, are we merely concerned about the quantum of punishment or do we really want to solve the problem per se? Indeed such painful incidents raise many serious questions about nation’s socio-political culture, legal frame work and police functioning and their relationship with crime.
In fact, all crimes have a socio-cultural, economical, legal and political account which is subject to the social structure, cultural framework of the society and legal character of the state. It is the state and society which induce democratic and liberal humanistic values among its members and shape their conceptual framework about other fellow human beings. A hegemonic understanding of ‘others’ leads people to take advantages of disadvantaged resulting in crimes. Likewise, rape crimes are also a result of similar dominating socio-culture understanding of women. In this regard, Madumita Pandey’s (PhD student at the Criminology Department of Anglia Ruskin University in the United Kingdom) interview with 100 rapists provides a very realistic and eye opening picture. She finds out that “what they (rapists) have done is because of upbringing and thought process”. In India most of the men consider women as a sex object, devoid of sexual choices and rights. In such scenario, it becomes very important to understand incident of rapes and rapist from a socio-cultural perspective and then decide the quantum of punishment accordingly.
Secondly, while a large portion of the society does not access the primary education forget about the secondary and higher level of education, and not to mention the quality. India is placed at a low bottom at the UN hunger index table. The unemployment among the youth is very high in the society. Now, can we really put all the blame upon the rapist alone? Undoubtedly, the accused are the immediate culprits in the cases of rape and should be punished for their unpardonable act. However, are state and society not the real and indirect culprits? It is the duty of the state and society to prepare good citizens through various necessary measures. And if there are crimes in the society, the society and state cannot be absolved of all responsibility.
In fact, state need to provide an adequate security system to its vulnerable citizens like women but often it doesn’t. Likewise, society needs to inculcate egalitarian gender neutral values among its members but Indian society has failed to do the same. Therefore, at the first place, state should be forced to take the responsibility of its failure to protect woman’s dignity and life. Indeed, almost all the crime cases in general and rape cases in particular are the result of a failed state and society.
Now, under the light of above discussion, we are in a position to investigate the second dimension of the problem that is; quantum of punishment.
First of all, demand for capital punishment for any crime including rape is not sustainable as it is not rational and against the fundamental human rights principle. Also it defies the purpose of punishment. Laws cannot be formed on the basis of vengeance and emotions. As law cannot be the reflection of collective will they should be built up rationally, untainted by emotion. They should be categorical imperative – that is what Immanuel Kant’s ‘duty for duty sake’ principle declares.
Secondly, criminals are not born they are the product of adverse social, cultural, economical and political conditions. Since objective of the law is not to eliminate the culprit but to eliminate crime from the society, the criminal should be reformed and not eliminated.
If the argument is that the criminals are punished to tame the society, to deter others from doing same in future then provision of capital punishment is turned against the law of natural justice. It is unethical to use a person as a means of deterrence to other humans and hence the demand for capital punishment is morally unacceptable. Secondly, it is debatable to say that infliction of death penalty has been deterred people from doing concerned crime.
Fourthly, infliction of death penalty is in itself barbaric, brutal and fundamentalist way of punishment. Two wrongs do not make a right. Capital punishment itself is a form of violence against humanity and violence is condemnable at every level. Thus, capital punishment cannot be a rational and justified legal policy.
Finally, our judicial system has great lacunas. Fair justice is not available to all sections of the society at equal cost. Moreover, death penalty for rape could compel the rapists to murder the victim as that may be a better chance of escape. Therefore, demand of capital punishment for rape is impractical, unethical and against the demand of natural justice.
In fact, problem of rape need to be tackled from the socio-cultural and legal point of view. Simply playing with the rhetoric and polemics will not work. It is high time government and the society to wake up. It is high time for the government to take responsibility of their failure and take the corrective measures at the grassroots level.
It is the duty of the society as well to join hands together and force the government to accomplish its prime duty of good governance in an effective manner. Within an educated, enlightened and cultured society only, the rights of marginalized, weaker and vulnerable section of the society can be protected. This may be the only way possible to stop heinous crimes such as rape. Otherwise we have to just wait for another rape and moron after that.
(Author is Assistant Professor Department of Philosophy, Ramjash College, University of Delhi)