How Would You Like your Death Penalty Steak, Rare, Well Done, or Medium Rare?: Arguments Against the Death Penalty

The anger that I felt when a young woman was brutally raped and killed by a group of men on the night of December 16 last year is not something that will ever go away. It marked not just me, but millions of people in Delhi, and elsewhere. That anger has no closure. Nor do I seek the convenience of such a closure. I do not seek the convenience of closure for the rape and murder of dalit women in Haryana, or of women in Kunan-Poshpora and elsewhere in Jammu & Kashmir or in Manipur who were raped and killed by the soldiers of the Indian army and who are still unpunished. I would like such men to be punished, but I will never demand the penalty of death for them. Not because I have any affection for rapists, but because I have a greater regard and respect for human life, which I do not think that we should allow the state to take away, in cold pre-meditation, whatever the circumstances.

x1e Protestor in Delhi Holding Sign Against
Death Penalty and Patriarchy

Today, the anger that I feel in the wake of the many incidences of rape and violence around us is alloyed with a sorrow occasioned by the awarding of a death sentence to the rapists and killers. And before you jump to conclusions, let me emphasize that my sorrow does not stem from any ‘sympathy’ for those who committed that heinous crime on the night of 16 December. I do not presume their innocence. And I have no doubts that they did what they did knowing fully well the consequence of their actions. They knew that for them rape and murder was a sport, a pastime. No animal other than human beings kill to distract and entertain  themselves. Beasts know better than man about the sanctity of life.

But can death be recompensed with death delivered cold by a hangman? Does a hanging bring back the person who was murdered by the hanged man? By what kind of moral arithmetic does it diminish anyone’s pain? Is there a measure for this kind of pain ? Is there a meter that tells us how many kilo-joules of pain have increased or decreased by a verdict ? Does anyone know what they mean when they say ‘Kaleja Thanda Hua’? (the heart/liver has been cooled).

I think a term of imprisonment for life, in solitary confinement, if necessary, so that any one who commits a heinous crime can find themselves confronting their abuse of a single night or even an hour for an entire life time, night after night, is a far more severe punishment  than the short leap into the void that is enabled by the pull of the hangman’s lever at the gallows. Psychopaths and mass murderers often court their own deaths. It makes things easy for them. Bloodthirsty tyrants and dictators turn into martyrs for some, overnight, when they are executed.  I would prefer it if things were actually harder for the rapist who dismembers his victim, and for the tyrant who abuses an entire people.

Rare, Medium-Rare or Well Done ?

In India, in fact anywhere, death penalties are awarded for what is considered the ‘rarest of rare’ cases. .This notion of rarity is constructed by means of a hypothetical sliding scale of a refinement and intensification of cruelty. Thus, the  rape and dismemberment leading to death is ‘rarer’ in this instance, than rape or murder taken separately. But rape, dismemberment, murder and cannibalism, if ever found together (as might have taken place in the Nithari case) will be even ‘rarer’ than the December 16 case, and so on. What this means is the setting up of a sliding scale of horror, which evaluates the ‘worth’ of each act of violence to see whether or not it measures up to justifying a death sentence.

Think of this for a moment, from another angle. Your daughter, or wife, (or sister, brother, son, father, husband, friend or lover) has been killed because of the terrible injuries that s/he suffered as a result of medical malpractice and callousness. You saw him/her eaten up from the insides, you saw him/her writhing in pain. And yet, your pain, and his/her pain, is somehow not ‘worth’ as much as the pain that the judicial system would have acknowledged had s/he been ‘raped and murdered’ rather than being callously manhandled and abusively treated in the course of what passed for medical care.

The ‘rarest of rare’ argument automatically devalues the experience of millions of people, because, on the one hand it upholds the principle of the severest retribution, and on the other hand it rations out that (flawed) understanding of justice on the basis of the sliding scale of the ‘lesser’ and ‘greater’ horrors of different crimes. The feelings of  a person who has witnessed, or experienced suffering is actually of no consequence here, what counts is what ‘counts’ as suffering. What gives anyone the right to decide that the pain of the  mother or lover of a man or woman who’s painful death because of medical malpractice or an iatrological illness is less ‘worthy’ than the pain of someone who has lost a loved one to a rape that ended horribly, with murder. If we think that ‘rape + murder’ is somehow a worse fate than ‘medical malpractice = murder’ then, we are admitting to the fact that we feel that rape is a more fundamental violation of the human body. One could say that it happens against the will of the victim, but can we speak meaningfully, for instance of the ‘will’ of a completely anaesthetised patient on an operating table who will undergo a gross violation of their bodily integrity that might damage them for life, or kill them ? Can we honestly say that rape is somehow ‘worse’ than a medical intervention gone wrong due to invasive callousness. And if we can’t then can anyone explain why we do not see the spectacle of television anchors for the hanging of callous doctors. Why is the mob fury on hospitals and clinics always seen as outburst of irrationality and the baying for blood by a mob in the 16 December case seen as dignified and just anger?

To my mind, one is not ‘worse’ than the other, but the person who assumes that rape makes murder ‘worse’ also buys into the rapists common notion that nothing humiliates a victim more than ‘rape’ can. This puts rape on the pedestal where rapists want it to be. If we are to be serious about non-patriarchal  values, then the first thing we must do is to challenge the idea that rape diminishes the person who undergoes rape. Robbery does not diminish the robbed. Why should a violation like rape, be seen as more than what it is. I do not mean to diminish its horror, but to make it a ‘greater’ crime, putting it in the ‘rarest of the rare’ category

Unfortunately, what matters is which ‘crime’, which ‘breaking news’ horror story of the the moment, is more worthy of being called ‘rarest of the rare’. This notion of ‘worth’ is constructed more by social and political exigencies (which inevitably foreground the ephemeral cost-benefit analysis of a given decision rather than universally testable claims to justice) than by any real response to pain or wrongdoing.

And so, a murderer who kills in the course of a robbery may get off with life, a murderer who kills a wife he suspects of having extra-marital sex may even be acquitted (a crime of passion) and a murderer who kills because he is an insurgent or a rebel may get death, because insurgency is ‘rarer’ than robbery or crimes of passion committed by possessive husbands. (There is a relationship between this line of reasoning and the one that says that a husband cannot rape his wife, a principle upheld recently by the Indian parliament, but we will not go into that in detail for now.)

Similarly a man who rapes and murders in the line of army duty in the course of a counter-insurgency operation in Kashmir or in Manipur may not even be brought to trial, and may even be decorated, and a man who rapes and murders in a city bus in Delhi may get a death penalty.

Does this happen because there is some assumed heft to the notion that incidence of rapes in city buses is  in some ways ‘rarer’ than rapes that end in executions in the line of duty by soldiers in the Indian army?

The Prosecutors Fallacy and ‘Rarest of the Rare’ Case : A Mathematical Digression

In mathematics, there is a well known problem known as the ‘prosecutor’s fallacy’. This assumes that if an act is very rare, or if the criminal leaves a trace, say a blood stain, which on analysis identifies him as the bearer of a very rare blood disorder, then there are higher chances of that criminal being rightfully convicted when a person who exhibits similar tendencies or characteristics is found. It all depends, again, on how ‘rare’, rare is taken to be.

A criminal with a blood disorder that you would find in say ten people in a million, is assumed, in this line of reasoning, simply to be matched with any person with such a disorder, who is reasonably seen as being within the ambit of the said million. Trials have been known to proceed on this basis, and death sentences have been handed out, citing a very twisted understanding of the ‘rarest of rare’ principle.

However, let us not forget that he is actually one in ten. Which means that in some ways, there could be nine other people who could theoretically be guilty or what he has been arrested for. This up-ends the whole common-ness / rarity question. Out of the ten persons who could have committed the crime, only one actually has, nine have not. If any of the nine people who have not committed the act are convicted and sentenced, then, in some ways, the sentence becomes awarded to the vast majority of suspects, who were brought into the investigation, not because they happened to be directly identified with the act, but because they shared a rare condition with the actual criminal. This scenario could easily lead to the sentencing of a person who did not even commit the crime for which he has been charged.

But let us come back to December 16. We know that the men on that bus did commit the crime they have been accused of. Their alibis have not held in court. There are reliable witnesses. This has not been (for once) a mistrial.

What is at issue here is not the miscarriage of limited retributive justice in this case, but the possibility of this case acting as the basis for a possible, potential miscarriage, even of retributive justice, in other cases.

Rarity and the Common Myth of Deterrence

Every death penalty provides the foundation and precedence for every other death penalty. That is the basis of the doctrine of deterrence. The notion of deterrence would have no meaning if a sentence could not be handed down, repeatedly. It is here that a peculiar intersection between the uniqueness and singularity of death and the repeatability of a death sentence occurs.

It is possible, hypothetically, in another instance, for a misidentification of an accused but innocent person with an actual criminal to occur. And the heinous nature of the crime under consideration may cause a judgement in such a case to overlook all caveats and calls for caution while sentencing is being done.

Let us say that in that instance, that a person’s blood disorder trace (or any other such rare identifying mark, or circumstantial evidence) is the basis for a conviction, in the absence of any other proof.

In this way, the ‘rarity’ of evidentiary grounds, and the ‘rarity’ of the heinousness of the crime combine to form a lethal judicial cocktail. A judge, faced with his self-imposed necessity of assuaging the ‘conscience of society’ , awards a death sentence on the basis of the ‘rarest of rare’ doctrine.

The person who is awarded the sentence has no evidence stacked up against him other than a probability based on another, completely different understanding of the notion of rarity.

For all you know, the accused is one of the nine in ten people in a million who has the rare blood disorder that the criminal has. Let us assume that the criminal is a rapist and a murderer, and he murders his victim, because knowing that he can be sentenced to death, he wants to leave the victim without the option of deposing against him. But what he leaves behind something that could identify him, but could also be used to mistakenly identify someone else.

Here, the ‘prosecutor’s fallacy’, in combination with the moral justification provided by the ‘rarest of rare’ doctrine can lead to a gross miscarriage of justice resulting in the execution of an innocent man. Given the standards of forensic analysis (weak and inconsistent DNA profiling, contamination of samples etc.) in our country, It’s not as if this does not happen. Not often, but it does happen, and it certainly could happen. In the ‘Arushi & Hemraj’ murder case, (another instance of the ‘rarest of the rare crime’, the prosecution’s evidence is entirely circumstantial. There has been no in depth forensic analysis of any of the human traces from the crime scene. And it is quite likely that the prosecuting judge will feel the pressure to award a ‘death sentence’, regardless of whom it awards it to).

There are numerous instances of people being found innocent long after they have been convicted. New forensic techniques constantly force us to re-examine questions of guilt and innocence. Cold cases heat up in the forensic lab when a new technique is discovered and tried, years after they have been put into deep freeze.

In the case of a person who has been awarded a life sentence on mistaken grounds, there is still scope for some recompense, because it is always possible for that person to be released honorably, and for them to pick up, with however much difficulty, the threads of their life. That possibility is forever cancelled out when a person dies. For every nine ‘correct’ death sentences, there may be one ‘flawed’ one. But how do we give life back to the person who has been hanged in that tenth ‘flawed’ case? Never forget that the tenth ‘flawed’ verdict is inevitably based on the retributive momentum generated by nine ‘correct’ death sentences. When you feed the monster of ‘collective conscience’ it has a habit of staying hungry, no matter what the circumstances.

So if we can invoke ‘society’s conscience’ to justify a death sentence when the crime committed is ‘rarest of rare’, why can we not invoke the same principle to abolish the death sentence because there are those ‘rarest of rare’ cases when a sentence does result in hanging the wrong man. Why is a call for death all right on the grounds of ‘rarity’ and a call for saving a life not right on the grounds of the same arithmetical phenomenon of ‘rarity’.

Judgement Call

I could go on. I could go on about the fact that a death sentence does not bring back a loved one that anyone has lost. I could go on about the fact that when a television news reporter thrusts a microphone in the face of a murder victim’s parent and asks ‘kya asp ko maut chahiye’ (do you want death?) he or she is already framing and limiting the possibilities of an answer. I could go on about the difference between restorative and retributive justice. I could go on.

But let me end with a small discussion of the idea that death sentences deter crime. They certainly do not deter the criminal, because he will no longer be alive, on the successful execution of the sentence to stop himself from repeating the horrible crime he is accused of. So the criminal per se is not deterred.

Now, it can be said that at least it deters others who may be scared away from committing such heinous acts because they fear being caught and killed. First of all, the fear of death is no deterrence to psychopaths who often commit the kind of ‘rarest of rare’ crimes that we all feel horrified by most of all. It is also not a deterrence to the terrorist who is attracted to the halo of martyrdom and has no hesitation if necessary in being a suicide-bomber. In both these cases, the death sentence may in fact as a kind of perverse incentive to committing a heinous crime.

There are many among us who have said that ‘rapists should hang’. They have not thought it fit to consider that the promise of a death sentence will certainly act as an incentive to those who think that killing their victims in someways minimizes their chances of being caught due to the fact that their victims may stay alive and depose against them. Remember, rapists of this kind are often recidivists, they commit their crimes again and again.

Nine times out of ten, no complaint is filed (either because the victim is scared to file a complaint, or because her complaint is not accepted by the police). If the inevitability of a death sentence is added to the mix, more rapists will kill the women, children and men that they may have attacked to ensure that traces are erased. if we want the offense of rape to be eradicated, we have to make it safer and easier for rape survivors to make complaints that can stand in court. This involves – not a death sentence for rapists – but the removal of the stigma of being raped from the person who survives rape. That is work that society has to do for itself, it involves and implicates all of us. If we are serious about confronting rape and sexual violence then we cannot outsource the solution to the problem to the hooded figure of the hangman. That is a solution that gets rid of an occasional rapist, or murderer, it never gets rid of rape, or murder.

I have always maintained that violence, or a life taken in self-defense can always be a mitigating factor when it comes to judging that violence. I would defend the raped man or woman, or his/her companion, who kills a rapist (were that possible) to prevent him from doing further harm, any day.

My opposition to the death penalty does not stem from an anodyne commitment to non-violence in the abstract. It stems from my understanding that if we give the state or any abstraction of commensurate scale, the right to decide matters of life and death, whether for punitive or for any other reasons, then we have actually ceded away our own sovereignty and autonomy as individual human beings. The phrase ‘collective conscience’ troubles me profoundly because it is based on a conceptual sleight of hand. Conscience can only be an individual matter, the fiction of ‘collective conscience’ means nothing. The proof of this is simple, my conscience does not permit a justification for the state taking life away, so no ‘collective conscience’ argument can accommodate my individual conscience, hence, it cannot have the legitimacy to act on my behalf. And yet it is precisely this legitimacy to act on my behalf and your behalf that is invoked in arguments that begin and end with the alliterative ring of ‘collective conscience’.

A detailed empirical study done in the US points out that murder rates in states of the US that have abolished the death penalty are consistently lower than in states that have retained the death penalty. This study is important because it allows us to compare two scenarios – with and without death penalties, in the same society, across the same length of time. I would urge everyone to read this – and then come up with a good argument about how the death by hanging of four men will ensure that rape will be deterred in future.

The rapists of the 16 of December thought that they were ‘punishing’ their victim. Rapists often do. Their defense lawyer, A.P. Singh even said, “I’d burn my daughter alive if she was having pre-marital sex, roaming around with her boyfriend at night”. Notice the consequentially expressed logic of this statement – I would burn her alive if she did X. How far is that statement  from ‘I will rape and kill her if she was someone I thought was having pre-marital sex and moving around at night with her boyfriend’. On what basis does a person even imagine that they can take on the role of the executioner, and of rape as punishment for transgression ? The answer is simple. As long as you believe that certain choices that people make should be met with the abstracted application of deadly and violent force, you will have ‘death penalties’ handed out, not just by courts, but also by lynch mobs and gangs of men in night buses. The rapist-murderer and the hanging-judge have more in common than meets the eye. I am not saying that the judge is a rapist, but a rapist is sometimes a judge, in the sense he thinks he is handing out the ‘punishment’ of rape to a person (usually a woman) he thinks has crossed a given patriarchal line – by being alone at night, by expressing her sexual agency, or simply by being a person possessed of her own sense of autonomy and dignity.

Anyone who cheers the verdict of death by hanging today should examine the possibility that he or she may be an unwitting abetter of the next heinous crime, whose origins may lie in the same twisted understanding of transgression and punishment that stretches from courtrooms to the deserted and desolate stretches of all our nightmares.

32 thoughts on “How Would You Like your Death Penalty Steak, Rare, Well Done, or Medium Rare?: Arguments Against the Death Penalty”

  1. Not to mention that every rape can now become “rape + murder”. If you’re going to get the death penalty for rape as many people want, they there’s no point in leaving a living person to tell the tale and go to the cops.

    Also, the death penalty requires a significantly higher burden of proof and a much longer judicial process. Get ready for each rape case to take 10 years to decide after appeals etc.

    1. Do we really need to use tax payers money to feed these good for nothing life term convicts? If you are not civilised, you are no good to live in the society. In a paddy field weeds are plucked out. Rape is become a free for all past time in the country and there Is need to create fear in the minds.

      Hang them and finish it off. No need to feed them lifelong, no need for building more jails, infrastructure etc. the tax payers money can be used for better purposes..like education…so that the spread of this caste is contained…

    2. Dude it wasn’t rape … I dont call this as rape … Its something else. Imagine a iron goin through a*s and then write this comment. Death penalty is not for rape … It is because of their brutality. Imagine yourself in her place, Imagine yourself being her brother or father then write the above comment.

  2. It is the collective blood lust that I find most shocking. Everyday, you see these people clamoring for blood and you feel you’ve been transported into some kind of Orwellian society where the government orchestrates public hanging everyday to reign public disquiet over a failing government.

    1. Exactly. Browsing the Internet will reveal all kinds of colorful punishments being bandied about involving spices, sharp instruments…and sometimes even the family members of the rapist! I mean, what have they done? I’ve lost count of the number of times some guy has demanded that the rapist’s sister/daughter be raped to teach him a lesson!

  3. I too was one of the people who rejoiced when I got to know of the judgement on this case. Perhaps the first statement that came to my mind was, ” They deserved it!” But your arguments have indeed made me question my stance, because unlike many, many others, you have thankfully spared us of all the “they-are-humans-too-and-are-entitled-to-human-rights”, an argument which atleast to me defies any logic given the heinous nature of their crime. The reason why I was happy with the verdict has also a lot to do with the verdict handed out to the ‘juvenile’ involved in the crime. When I heard that he would get away after serving 27 months of jail term, I caught myself thinking of our judiciary system, and hoping that at least in the case of the other four, it would give us a better judgement. For the whole idea of that man being able to walk out of the jail holding his head high (and who knows, commit another rape after some time?) was too much to bear. The verdict was, on a sub-conscious level, to serve as a means to avenge all such crimes that have happened to women (and men too) till date. Then came this verdict, and I thought that justice had been served. Why? Because when I read about ‘J’s’ father saying that one might as well be involved in female foeticide rather than raise their daughters, if this is the fate they are going to meet i.e. not just the trauma of rape but also of being denied justice, a part of me was enraged. Angry at the idea of being helpless, frustated at the thought of living in such a society which can not even serve justice (as I saw it) to the wronged, leave alone preventing them from being wronged in the first place.

    Agreed, the death penalty is not going to bring their daughter back, but I think what it does is to provide a pyschological support, a sense of relief, something that solitary confinement can never provide. There is a reason why people fear death, after all and those who don’t, well , what difference is then a solitary confinement going to make to them in any case? But that being said, I have begun to understand your concerns regarding death penalty, especially in a country where in addition to prosecutor’s fallacy, the amount of money in your pockets plays no small a role in determining the outcome in your favour. And most importantly, as much as it doesn’t make sense statistically, protecting the life of one innocent person is of paramount importance indeed, even if it doesn’t agree with our ‘collective conscience’.

  4. While death penalty shows the weakness of our modern state system, the judgement itself brings to question how ‘rape’ is looked on, by not just the media but the judicial system as well. The four points on which the aggravating circumstances argument has been made reads something out of a newspaper. The words desecrate the violence, and makes it an abnormality of our times. And That is the biggest blunder that we could have made, despite the 14 days of continuous protests! The judgement does nothing but makes ‘this’ rape an ‘exception’ from all the other which is just not how things stand. Now, do they?
    The most worrisome part of the judgement : The two paragraphs that lets the public know what happened to the victim on the bus, no not partial reference, but full imagery – bite marks, and pulling of hair- it is no wonder, that the exception is proven by this ‘beastly spectacle’. Miserable public, we are to laud the judgement as trans formative, done nothing but made more Romans! arnab goswami sure must be happy! and that is just a horror show!

  5. I must straightaway admit that I have reservations about imposing the death penalty on anyone. But the Government would like to continue with it to deal with convicted terrorists for it is more difficult to keep them in jail for a life sentence. Terrorists have just to abduct someone and threaten to kill them unless their companions are released from jail. So the state would prefer not to face such a problem. Besides the anger against those who committed a crime like the gang rape in Delhi will boil over unless the death penalty is imposed. The state will be seen to favour such people. The country as a whole has to discuss the matter in a calm fashion before the big step of abolishing the death penalty can be taken.

  6. Very well-written, Shuddhabrata. As you have rightly pointed out, how does “rarest of the rare” apply to these rapists and not to policemen who rape women whilst they are in the lock-up, or soldiers who commit rape in “enemy” country. The public’s reaction seems to imply that the death penalty awarded to these men, will see justice done to Nirbhaya and her family and that Indian women can walk safe in India from now on! The level of lust for blood is quite shocking and of course the corporate media is playing it up for TRPs. Move over Madame Defarge!!

  7. Its justice won for Nirbhayas(JYOTIS)family with all four convicts sent to death sentence.
    I wish the media could show it on all the News channel,the death sentence of these convict cannibals.However strict action should be taken on the juvenille,the most brutual of all .there’s no need of reform,just pure DEATH sentence for him too.
    30000 RAPE CASES are pending in the courts all over India.The BATTLE doesnt end here,but a fast track court proceeding for those 30000 rape cases in our country.These court proceedings should be strictly between the members of the jury and the judge.no defence LAWYERS for the convicts.
    Thanking the Delhi police for makeing this a watertight case.
    Mr Modi,can make put this up first on his agenda as he is sworn in today.

    1. Ma’am, I wish people understood that the freedom to talk freely like this ‘one’ and smear one’s thoughts over internet’s dimwits doesnt come without spillage of blood and ruthless imposure of justice doers.. i mean, i just cant understand why people are readily and mild-vehemently criticising the justice done.. just leave them to their doings and God forbid their loved one’s go thru what Nirbhaya went thru..

  8. Death sentence is the only solution for rape.Nine months later,the Delhi gangrape gives me shivers and a deep sense of empathy towards Nirbhayas family,especially her Mother.An aspiring young medical intern wanted to start a hospital in her own village for the welfare of society.and this was what those cannibals did to her.The Juvenile should not be sent to a reform center but should be HANGED to death with the rest of the four CONVICTED….three years is not enough.The legal constitution should take a new course here.
    If politicians can go to every square inch of India to generate thier votes,so with such seriousness can they find laws and solution to emit rape,by first educating the society and punishing its offenders.

  9. Its an absolute piece, not because it is a philosophical or preachy material but because i think the way and can relate very well with the idea. Thank U

  10. There is something distinctly disturbing about days like today. My feed is full of the word ‘justice’ which is circulating like a waif, appropriated by everyone who has chosen to mistake it for vengeance and blood-thirst. But you had me at the word ‘closure’ which I found very interesting. The death-sentence is the closure that the public is seeking so that it can put its conscience at ease. By casting the rapist as a monster and lashing it as the unconditionally guilty, the public can escape both self reflection and responsibility.

    But all this provokes a question about what expectations are being loaded on a death penalty and what is this act of execution expected to achieve. For the public it seems there couldn’t have been a better way to foreground their sense of ‘civic awareness’. And it makes one uneasy to read their words doused in violence themselves. The tensed desire for violence and the flagrant intolerance is unmistakable.

    I find it increasingly frustrating that one must defend one’s position on rape before offering a critique of death penalties and other unmentionable mindless propositions of castration and torture that are alarmingly on the rise. And you are surely inviting menace upon yourself if you are not joining them in their enthusiastic celebration tonight.

  11. i wish you had thought a zillion times before commenting on and comparing the soldiers’ conduct in disturbed areas, with these …… never mind! But i see that you carry memories of your bangla heritage of rape-rapine-plunder by Paki soldiers…

  12. It was expected that the the Saket court would award death penalty to the 16th December gangrape case.There are arguments galore for and against death penalty.Since it was the rarest of the rare cases ,as held by the court, there should be only one worry: how soon the execution of the order will take place?As we know of our so-called judicial process ,it may take years.By that time people may even forget about the case or change their opinion.Though everybody is free to express the opinion, one must do it with a sense of full responsibility because it effects the opinion of others as well.Justice too has been defined in various ways ,from natural justice to retributive justice to legal justice .In this case at least there should be no futher hairsplitting.That will dilute the whole issue and crime itself.appeal in the high court and then in the supreme court and even mercy appeal to the Rashtrapati are definitely in the line.The cut in delays will only do full justice to the victim and may to some extent serve as deterrent for the potential ciminals.

  13. Good one. I thought that death penalty impedes the crime rate, and it would be a deterrent committing crimes. The “status qou” is full of question.
    I good research you did. bit a long. have saved it. thank you.

  14. I think India will not be able to engage in a rational debate and come to a definitive conclusion on this – we are simply too emotionally involved in the present case. It appears to me that strictly in terms of numbers, the majority is for retain death penalty, hence it will stay, at least in the near future. Judges as human as they are, will continue to be swayed by public opinion and will probably continue handing down death in cases they deem “R of the R”.

    I think this is also because our law and order systems fail to ensure enough deterrence, we perceive death as the only way out. Because we would rather not see these convicts being able to walk out after 14 years or so just as they went in, without having undergone any “reformation” . It has got a lot to do with society’s perception of how the law and order system works. Which also explains why most of the abolitionist countries are those with functional public order systems that assure a sense of security and timely responsiveness to the larger public.

    It is easy to argue on ideological and rational grounds on the abolition of death penalty, but the other side’s argument is an equally compelling one – that the alternative to death penalty is simply not effective. Unless our general law and order system undergoes radical changes and presents them with a clear and credible alternative, a meaningful, rational debate on death penalty will not happen.

  15. Murdering the perpetrators of the horrible rape (that also led to what is tantamount to murder of the victim) is neither a deterrent nor a resolution. All civilized societies have moved away from executions. Uncivilized ones (such as parts of the U.S.A. and some others) celebrate them.

    The threat to women from extreme molestation and rape will remain in India. The roots of this will not be pulled out by slaughtering the rapists. This is yet another example of attempting to deny the real problem by pretending to solve it. It is good that this particular horror caused the prevailing pathology to be spotlighted, shaming those who had simply ignored or even excused it.

    But there are social and economic factors at play here that also cannot be ignored, including divisions of class. There are issues of power and frustration at work, along with the male dominance and subjugation of women that has marked so many regions of the world.

  16. Shuddhabrata,

    Your argument is mostly sound on some points. The pain a patient undergoes in a callous or flawed surgical procedure is different from the one inflicted in a biological crime of Nirbhaya’s case.

    It is not clear why you accord importance to the phrase “collective conscience” which was of course invoked each time a death penalty is awarded. Let’s remember that in India death penalties and judicial executions are few and far between. Indian judicial system is much more lenient.

    I welcome the judgment and hope it will be upheld in the higher courts. You speak with the victim’s family members and remember what the victim said she wished should happen to the rapist killers.

    You can’t pardon certain crimes because the victim’s loved ones deserve a small sigh of relief. It’s as simple as that.

  17. Excellent article.

    One typo though “But what is rare in the USA, stops being rare in Brazil, a country with roughly one hundred and fifteen million more people than the USA” – should be 115 million FEWER people than the USA.

    1. Thank you for spotting the typo. The entire section on comparative demographics between Brazil and the United States has been edited out as it was not adding to the argument in a really definitive way. Your observation helped me realize this, so thank you. Diligent readers such as you are a great asset for Kafila.

  18. we mus look forward to crime..the mental and physical distortion a person had because of some group of men who wanna enjoy..if human being ..give life existence a priority …is there, then it must be worked on those who actually deserves to be in human race…such disgusting animality..they must be publicly hanged…so that in future no body dares to do so again…we always think of humanity and judging rape on different scales of crime…jz with same heart of a human imagine the pain that girl had gone through,…v actully cant make an imagination of that horrible incident..it was more then a rape and murder…mental physical distortion of human dignity….

  19. In a dispirited way,I agree that the death penalty is not the answer, as I’ve been a lifelong opponent (though all around us death is dealt out as judgement every single day, by anyone with a gun or knife or a bottle of acid or a lynch rope). But I find your suggestions for solitary confinement quite disturbing too – therefore torture is the answer? Why? So that they suffer too, what she suffered? But she suffered her own death at the end of it all, as well! So shouldn’t they be killed – if it’s about a suitable quid pro quo? Is execution the worst possible thing that a State can do? Why do you think that? Is death unforgivable, but a long-drawn out terrible punishment acceptable? No, I don’t believe in torturing anyone either and am against extreme punishment. Did harsh punishment ever improve anyone? Isn’t all this an outlet for an inherent sadism in all of us? If we think long and hard enough about what prison is, at the end I think it’s impossible to not feel pity for those who are incarcerated. So I’m left at a loss as to what might be an appropriate punishment.The ability to feel remorse?

    I wonder, also, why you wrote that rape/robbery do not diminish a person. Do you mean “diminish”, as in social and public shaming? Or “diminish” as in the sense of a loss of selfhood? Aren’t we rather too rah-rah about the Victim (wrong terminology) vs. Survivor (right terminology) thing? I have been abused, I have been battered…and yes, I have been diminished. There is a huge loss, a separation from what you once were. Eventually you reconstruct something out of the mess, but it’s also goodbye to the person you used to be before… I imagine that other victims of violence feel the same way. Why should we assume that nothing has the power to destroy you? Many things do have that power.

  20. Well Done. That’s how many want the Death Penalty – where the crime has been proved beyond any reasonable doubt , guilty; Painless, not by lynching….Certainly not overdone as this article. Those interested can read http://gangrey.com/?p=1151 and also http://www.hindustantimes.com/editorial-views-on/VirSanghvi/Reap-the-whirlwind/Article1-1124027.aspx. Last but not least….’An Eye for Eye and Tooth for Tooth’ does not mean ‘revenge, retribution’. In Hamurabi’s Code (where it originated….it meant an equable punishment – you can not ask for an eye if you have lost just a tooth; similarly, for a person who has lost an eye, the state can not force compensation for a tooth. As for those who love to quote ‘Gandhi’s’ non-violence, here are some eye openers on how he viewed ‘self defense against sexual assault’ (http://gandhiking.ning.com/profiles/blogs/sumangal-prakash-and-mahatma-gandhi-1): Your argument with regard to rape seems convincing. In circumstances similar to those in which you believe it right for a woman to take her life, it may be right for a trustee to take his life when somebody tries to rob the property under his care. But the woman and the trustee themselves should think that it is their dharma to do so. You or I have no right to accuse a woman of failing in her dharma if she does not kill herself to prevent herself from being raped. If, unlike her, the trustee dies while defending the property under his care, we cannot assume, either, that he has done the right thing. We can judge in either case only if we know the mental condition of the person concerned at the time. Though I say this from the point of view of justice, personally I believe that a woman, if she has courage, would be ready to die to save her honour. In discussing this matter with women, I would, therefore, certainly advise them to kill themselves in such circumstances and explain to them that it was easy to take one’s life if one wished to do so. I would do this because many women believe that, if there is no man present to protect them or if they have not learnt to use a dagger or a gun, they have no choice but to submit to the evil-doer. I would certainly tell a woman who believes so, that she need not depend upon anybody’s weapons to protect her and that her own virtue will protect her. Even if that does not happen, instead of using a dagger or any other weapon she can kill herself. She need not consider herself weak or helpless and now concerning hypothetical questions. And “Taking life may be a duty. We do destroy as much life as we think necessary for sustaining our body. Thus for food we take life, vegetable and other, and for health we destroy mosquitoes and the like by the use of disinfectants etc. and we do not think that we are guilty of irreligion in doing so…for the benefit of the species, we kill carnivorous beasts…Even man-slaughter may be necessary in certain cases. Suppose a man runs amuck and goes furiously about sword in hand, and killing anyone that comes in his way, and no one dares to capture him alive. Any one who dispatches this lunatic, will earn the gratitude of the community and be regarded as a benevolent man. Gandhi in –Young India,4-11-1926”

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