A sessions court in Mumbai became the first court in the country to sentence three convicts in two cases of the Shakti Mills gang rape to death, under the amended section 376E on 4th April 2014. This is also the first case where capital punishment has been awarded when the victim of the act of sexual violence has survived. The section provides for death penalty in cases of repeat offenders—as was in this case, where first a telephone operator and then a photojournalist were raped by three men now on death row.
Protests against rape after the unfortunate incident of 16th December 2012 have been rampant in the country. The Supreme Court and the legislature both responded positively to the society’s hue and cry for harsher punishments. The judgments of the Supreme Court in an another context reflect a liberal approach towards the other debate; the debate to abolish capital punishment in the country.
What is common in both these harsh yet liberal and liberal yet harsh approaches is that 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. Do you support- yes/no. Simple, basic answers igniting a debate without being accompanied with a why? On a wider conspectus, there are basically 3 classes of people. One who say rape is the worst kind of violence and a harsh punishment must be awarded to the offender, a few amongst these say a capital punishment should be awarded to deter the anti social elements. The second class consists of those who agree rape is a very cruel offence but capital punishment should not be awarded to anyone by the state. The people who belong to the first class are happy as this is what they presume is the correct approach of the state through its law enforcing agency. However, this judgment by the Sessions Court has triggered a very debatable topic amongst the second class. They very blatantly argue, state has no right to kill someone. This is a sponsored murder, they contend.
The state cannot be allowed to celebrate implementation of their statute books & policies in the names of survivors of sexual violence. Such survivor’s life now is changed! Why? Because the state failed to ensure protection to them at the right time. Such an offence is a shame for the state, providing an after-incident remedy and claiming popularity and attention in her name, undoubtedly is even more shameful. What is wrong is that it is being portrayed to the countrymen that the state has now strengthened its laws and very soon giving capital punishments will act as a deterrent and sexual offences will soon be eradicated like polio.
The real question in front of everyone now is: will hanging them to death make things better and is this a moral position that we find acceptable? And in this the challenge before the appellate court lies.