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.  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. 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 on the Death Penalty and the
Justice J.S. Verma Committee 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. 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. 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.
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, in what has now become a
universal legal principle the justice must not only be done, but seen to be
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, the apex court of the country also feels that
there has been no uniformity in precedents and that this brings about the
subjectivity of the judge in awarding the penalty despite the guidelines issued.
Furthermore, research 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.
- The Asian Age
- Twitter Is Fiercely Divided Over Jaya Bachchan Calling For The Public
Lynching Of Rapists,
- Caroll, A psychological approach to deterrence: The evaluation of crime
opportunities, APA. https://psycnet.apa.org/record/1980-09877-001.