Is The Death Penalty Justified? The Youth Of India Is Divided

[Update: There are certain points in the global collective conscience that we can’t let go off, days and events we all remember as if etched onto our brains - when the Twin Towers of the World Trade Center fell on 9/11, the 26/11 terror attacks in Mumbai, and watching the grainy CCTV footage of a bus doing the rounds in Delhi as details of a horrendous sexually violent attack came pouring in. Nirbhaya is one name that has gone down in India’s history of shame, and has now been joined by the victims from Kathua, Unnao, Surat and as of earlier today, a 4-year-old from Jodhpur - shame for the ease at which such an act occurred, and shame for ourselves for having contributed to an environment (knowingly or unknowingly) that fostered the climate that allowed it. We questioned the very nature of the ‘human’ men involved, and what can drive a person to commit such brutality against another human being?

When the verdict came out of the Nirbhaya trial we reached out to our readers to get their opinion on the judgement if they thought it was fair and the position that capital punishment holds in the 21st century. Is blood for blood true justice? Is life imprisonment on the taxpayer’s buck worth it? Where does our moral compass turn to when it is a case involving a minor victim?

We’ve now found ourselves having the same discussions, in even more troubling circumstances with the case of Asifa Bano. Some people seeing capital punishment as the only deterrent left to put fear in the hearts of possible criminals, especially those targetting underage individuals. But would the fear of death decrease the chances of rapists leaving their victims alive and able to file a complaint?

A lot of questions have come up at this time as we prepare for the Kathua trial. Today we looked through our archives to dig up this story to shed light on the possibility of such a judgment coming up again. We need to think about was justice means to us, what it would to victims across the country and its enforcement (or lack thereof) of our judicial system and law enforcement.]

It was around 2-3 months after that dark night of December 2012. I remember my friend tell me the story of her walking out of one of the metro stations in the capital and feeling the presence of two men close behind her, as she walked further from the bright lights of the public space and down the road. The footsteps drew closer, she grew worried and then mustered enough courage and a loud enough voice before she turned and began screaming the name “NIRBHAYA” repeatedly into those men’s face, who turned tail and ran. “She has made everyone hyper-vigilant, all I had to do was scream the name and people knew my cry for help,” explained my friend.

It’s been over four years since, and it seems the judicial system has finally come out with a verdict for the men accused - death by hanging. Capital punishment has been meted out by the Supreme Court for all convicts of the Nirbhaya case (something reserved for the rarest of the rare cases, our record of which you can read about over here) and the nation has been left divided. Not by the notion that these men deserved the worst punishment possible—on that, everybody agrees—but on whether or not the punishment fits the crime? It would seem that justice has been carried out. “The Nirbhaya rape-cum-murder case is rarest of rare case and we are compelled to give extreme punishment to ensure justice,” said the apex court, while delivering the order, yet is the death penalty, justice?

The existence of capital punishment has always been a contentious matter, seen as a failing of democracy and negation of human rights by some. While on the other hand, there are those who view the death penalty as the only respite in certain ‘special cases’, - the only punishment harsh enough to counter the violence committed by the criminals themselves. They are the same people who might argue that such an extreme deterrent is necessary for truly abhorrent cases.

Saying the Nirbhaya case is horrific would be an understatement, but in this regard, is an ‘eye for an eye’ mentality the way to go? While, individually, all our hearts and passion may call for blood at an instinctive level, should the systems we have created to represent us not be above those emotions? Considering this case was perhaps one of the most emotional and public-driven cases in Indian legal history, with the most extensive media coverage ever, are we to consider the fact that there have been many other crimes just as brutal and heinous that have gone under the radar, or is that a disservice to Nirbhaya’s memory and the horror she faced? Perhaps each case must be viewed individually rather than as torchbearers for all of its kind?

There are no easy answers just as there are no easy questions. We reached out to our readers to articulate their own thoughts and feelings on the matter and were met with truly varied, yet thought out positions. Here is what they had to say.

1. “Rape a crime that the victim and its family is scarred for life with. Something that becomes the very DNA of the victims existence. Over and above this particular victim had been mutilated and made sure goes through the pain for daring to fight back. This girl lost her life to the injuries. If there is someone defending these men in the name of human rights, it’s appalling ! Such men do not deserve to be a part of a civil society that we live in. Such men are the reason I am (and I am sure 1000s of others) living in the constant fear of losing the women in my life to such barbaric acts of lust and self gratification. I with all my conscience intact say that yes capital punishment was the best verdict possible that can be given to bring these men to justice. Rather the day that they are hung to death, should be a day of celebration where finally india will have something more meaningful to celebrate than just some XYZ Jayanti! My stance on capital punishment is very clear... life for the life taken!” — Rohan Agnani

2. “It was a day of victory for India when the Supreme Court awarded a well-deserved death sentence to the four convicts who brutally raped, mutilated and murdered Nirbhaya. The landmark verdict, the second of its kind in India after the Shakti Mills gang-rape case, gave retribution to Jyoti Singh, her long-suffering parents, her friend from that fateful night, and to all the selfless men and women who fought hard over the last four years to ensure justice.

In legal opinion it was declared the ‘rarest of rare cases’, in public opinion it was the most brutal of brutal crimes, and in my opinion it deserved the harshest of harsh punishments. The diabolic nature of the rape left no doubt in my mind that the convicts deserve nothing less than death for the cruelty with which they treated another human being. While this is a moment to celebrate, it is also a moment to remember that we are at the beginning of a long and arduous journey where the penal code has to be rectified, swift and suitable call-to-action has to be initiated, the Rs 1000-crore Nirbhaya Fund has to be productively utilised, and stricter punishments have to be doled out to rapists involved in cases like Rohtak, Jisha, Bilkis Bano, among many others.

Still, overall, let’s take a moment to celebrate this verdict. For many of us, we’ve never been prouder to be Indian.” — Meghna Pant, award-winning Author & Feminist.

3. “There has to be capital punishment for exceptional crimes otherwise they’d be at par with crimes which get awarded the life sentence which are (relatively) less heinous in nature. There has to be an ultimate punishment reserved for rare cases as it also serves as an effective tool to demonstrate the weight of law to the general populace. Miscarriage of justice in past judgements where capital punishment ought to have been awarded is not a justifiable argument to condone it in the present circumstances. As far as the constitutionality of it is concerned, that is a settled issue in India. I believe it is an effective deterrent.

Capital punishment in fact protects the fundamental right to life and liberty as vested in us by the Constitution as it punishes it’s gross violations which are on a scale that is simply unacceptable in nature. If strict adherence to procedural statute results in miscarriage of justice demanded by a large majority then it is no good as one of the primary functions of law is to the protect the interests of the people. Law is to be construed liberally where it is apparent that anything to the contrary would be against basic morality (which is one of the principal sources of law). What good is a law that fails to protects the interests of the people? (Which in this case was a overwhelmingly pro capital punishment sentiment )

Raising arguments against this judgement for the sake of blind and impractical idealism is a dangerous path to embark on. Would Hitler be awarded a simple life term if he were alive today?” — Maitreya Rajurkar, 23, Lawyer.

4. “ I think we should abolish the death penalty. I support the sentence meted out in this case. I won’t be able to give you satisfactory reasons for this hypocrisy. I do hope this sentence serves as a deterrence in crimes against women but I am skeptical. But what makes me significantly hopeful is the call by the Supreme Court to make ‘Gender Equality’ a part of the school curriculum (p 319-20), to impart gender sensitization in school and to sensitize the public on gender justice through TV, media, and press. But I don’t wish to wait for policy actions from politicians whose bumbling words can be carbon dated to a 15th century mindset. I think we must talk with whoever will listen- nephews, nieces, uncles, aunts, parents, and grandparents. The bias they hold isn’t excusable anymore. ‘She isn’t ‘samaj ki izzat’ but a fellow human being who deserves the same rights as you.’ It’s simple and yet the implications of living by this code are profound. Listen to them and make them listen to the women in their lives - just listen.” — Devang Pathak, Writer.

5. “Short response: the death penalty is always wrong. Longer response: The Nirbhaya gang rape was truly horrifying, exposing the underbelly of Indian misogyny at the cost of the life and physical dignity of one innocent woman. The heartening thing about it was the genuine passion and outrage it produced, showing that not all Indians dehumanize others. Or did it? A lot of the messages were along the lines of ‘castrate them’ or “’hese people are not men, they should be killed’.

Besides the distinct possibility that the case was put on a priority track because of this (isn’t justice about justice for all?) the further troubling thought is that this is a mob lynching by proxy.

The courts are expected not to play politics and certainly not to take ‘public sentiment’ into account as this court has asserted in its judgement. This reduces, rather than increases, my confidence in the impartiality of the courts. And yes, the death penalty is barbaric and always wrong.” — Ravi Nair, 51, Freelance Sub-editor & Tutor.

6. “Holding to the undeniably disturbing Nirbhaya incident, primarily not only was the action delayed but the episode stigmatized, the judiciary must staple stronger action system. My views are in agreement to the now pronounced death sentence, rape/molestation/sexual abuse is a filthy stigma. Death penalty as a capital punishment makes the crime mentally impregnable. In every rape case the victim suffers a chastity death, then must not the culprit?” — Shivani Shivkumar

7. “Capital punishment is wrong not because it ‘doesn’t fit the crime’ or ‘life is sacred’ or any such reason. I feel what we do is not just who we are but it points to the direction we are moving in. If we accept taking life under any circumstance - except self-defence - then we are setting a precedent for a society that will slowly move towards accepting that taking a life is normal. Today it may define who we are. But taking the future into consideration it dictates what we are moving towards. And if taking a life becomes part of the system, the more and more ok we get with it, the more it trickles into other aspects of life as time goes on. Just how explicit lyrics are normal now and sitting at a desk 8 hours a day is normal. Nothing wrong but we are all susceptible to that brainwashing. So it’s simply a choice of what kind of society we want to move towards - one that values life or one that does not. No double standards here.” — Pratap Chawla, 30, Product Designer

8. “I don’t know. I’m not so sure about this one. Normally I’d bring up the ‘we don’t have the right to take a life’ argument but this one has me so deeply riled up I bring a different one. In this case, I feel like capital punishment is a cop out. If we’re talking about punishing a crime based on the severity of it... shouldn’t they be kept alive for as long as possible? Life-long torture vs Death? What’s worse really?” — Priya Darshini, 33, Musician/Actor.

9. “This is scary for a democracy where judiciary is dictated by the ‘Collective Consciousness’ of society and not by the merit of the case. I am against Death Penalty. therefore, my view for all death penalties will remain same. But I can’t help myself in comparing this case with hundreds of brutal rapes & murders in Gujarat 2002 riots. Interestingly Guj. govt had requested the SIT not to seek death penalty for Maya Kodnani and Babu Bajrangi (BJP minister & Bajrang Dal activist) in the Naroda Patia Rape & Massacre case. In Bilkis bano case the CBI recommended death penalty to the criminals but the court did hang them. In almost all the cases of rapes and massacre during guj 2002, the ministers, police, govt doctors and entire state machinery has been found to be shielding the perpetrators. Death Penalty is simply a brutal and archaic revenge system which must be abolished, it can’t be part of any justice system.” — Syed Amir Abbas Rizvi

10. “The alternative is to imprison them for a ‘lifetime,’ correct? Using taxpayer money. For what purpose? The fact that it has taken 4 years, 4 months and 18 days for this verdict to pass goes to show that the court was not rash in its decision to impose the death penalty. More than enough time has passed for all necessary checks and balances, and I feel that in itself shows that democracy is still in play. Shocking as that may be.” — Tansha Vohra

11. “An archaic, unsparing method of seeking the proverbial eye-for-an-eye revenge through legal means, capital punishment is an anachronism of sorts in a modern democratic society. The fact that close to 140 nations in the world have abolished death penalty is a testament to that — but then again, given that we’re a nation that continues to foster regressive laws, it comes as little surprise that a death penalty has been handed out. The brutality of the crime, the barbaric manner in which the rapists maimed and savaged her body was previously unimaginable and thus, it proved to be the tipping point for a society that was getting increasingly wearisome of living in a nation notorious for its crimes against women.

Should the perpetrators have been punished? Definitely. Any person who commits such a ghastly crime deserves no place in society. However, in the hue and cry, one’s quick to forget that prison is meant not just for punishment, but for reform and rehabilitation as well. With capital punishment, the only message that comes across is this: if you commit a crime, we’re not afraid to execute you, and it’s completely OK to take a life if we deem a crime to fit the bill. There’s an absolute finality to death and it’s completely irreversible — no chance for remorse, no chance for reform, and we’re normalising and encouraging a culture of violence by setting a precedent. It befits a banana republic, not a fully functional democratic society that we so proudly boast of living in. The only way to appease an emotionally charged nation demanding ‘justice’’, however, was to ensure the guilty kicked the bucket, but does a court sanctioned execution of four men really amount to justice?

Justice isn’t simply avenging a rape and murder by murdering the perpetrators in return, because you’re doing little, if anything, to prevent another Nirbhaya from enduring the same in the future. However, working together to create an environment where more children grow up respecting a woman’s consent enough to not end up raping her in the first place would be justice. Channelling our collective energies towards being proactive, not reactive, is the way forth — especially if we aspire to leave behind a safer country for our future generations.” — Rameez Shaikh, 24, Features Writer.

Feature image courtesy of AP Photo/Kevin Frayer via The Atlantic.