On the 2nd of December, veteran actress and current Rajya Sabha MP, Jaya Bacchan declared angrily amidst a chorus of shouting politicians,  These types of people need to be brought out in public and lynched. [1] She was referring to the ones accused of having committed the heinous rape of a 26 year old veterinarian in Telangana recently.

Her statement and fiery declaration has the people of the country quite divided; with it having received both its fair share of support and criticism.[2] In fact, ever since the Nirbhaya incident, the demand for death penalty to rapists is growing among the public. However, contrary to the popular belief of the masses, the death penalty does not, in fact, lead to a paradigm of more freedom or safety for women and here’s why:

The deterrent effect of the death penalty is a myth

Both the Law Commission in its 262nd report[3] on the Death Penalty and the Justice J.S. Verma Committee[4] acknowledge that the deterrence that is attached to the death penalty is inconclusive at best. Perhaps the inefficiency of the penalty as a deterrent can be best explained by understanding the psyche of a rapist. Most heinous crime is motivated by the surge of emotions in an individual; in such instances, the emotions usually overpower the cognitive abilities of the individual.[5] This very finding is antithetical to an integral part of efficient deterrence; the fact that the target of such deterrence must be one of rational mind[6]. If, at the time of the crime, the perpetrator loses her cognitive ability of being able to think rationally, the fear attached to the death penalty does not subsist and the perpetrator goes ahead and commits the crime for immediate gratification.

The death penalty may have the reverse effect

In fact, even if it was proved that the death penalty did in fact have deterrent value, it may have a negative impact on the victim. The reason for this is two-fold. Firstly, it may result in the perpetrator making sure that the victim is dead so as to ensure that he does not face a chance of being hung, thereby, resulting in a spike in the number of victims killed by their rapists. Secondly, according to the statistics provided by the National Crimes Record Bureau of all the cases of 2016, 94.6% were caused by family members of the victim.

This reduces the chances of such crimes even getting reported as the threat of the death penalty may deter the family of the victim to subject a relative to such a fate. This stands especially true for India, which is a collectivistic culture in which families are usually very closely knit.[7]

The egregious ways of the Retributive Justice System

Once it is understood that the call for the death of rapists is not beneficial to the victims; whether it has deterrent value or not, the clear conclusion is that this call, is not one that can bring reform. However, it still begs the question, of whether or not it can avenge the injustice the victim was subject to. It was observed quite rightly by Justice Hewart[8], in what has now become a universal legal principle the justice must not only be done, but seen to be done.

In this regard, the simple incarceration of these perpetrators, is for many not representatives of the principles of equity adopted by law. However, this system of retribution is not without its perils. Not only is the theory of retributive justice thoroughly outdated[9], the apex court of the country also feels that there has been no uniformity in precedents[10] and that this brings about the subjectivity of the judge in awarding the penalty despite the guidelines issued.

Furthermore, research[11] also suggests that close to 74.1% of the individuals under death row, are from economically vulnerable backgrounds, meaning, that they do not have access to quality legal counsel which may be found to be a contributing factor as to why they find themselves facing the noose.


End-Notes:

1. The Asian Age http://www.asianage.com/india/all-india/031219/jaya-bachchan-advocates-public-lynching-of-rapists.html
2. Twitter Is Fiercely Divided Over Jaya Bachchan Calling For The Public Lynching Of Rapists,
3. http://lawcommissionofindia.nic.in/reports/Report262.pdf.
4. https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf.
5. Caroll, A psychological approach to deterrence: The evaluation of crime opportunities, APA. https://psycnet.apa.org/record/1980-09877-001.
6. http://lawcommissionofindia.nic.in/reports/Report262.pdf.
7. https://culturalatlas.sbs.com.au/indian-culture/indian-culture-family.
8. https://issuu.com/js-ror/docs/1924_rvsussexjustices.
9. https://indiankanoon.org/doc/1309719/.
10. http://lawcommissionofindia.nic.in/reports/Report262.pdf
11. https://thewire.in/law/three-quarters-of-death-row-prisoners-are-from-lower-castes-or-religious-minorities