Rape, death penalty, pardon and deterrence

India is witnessing a collective outrage over the brutal rape and attempted murder of a 23-year old girl. I want to take a crack at three fundamental issues at play here.

Courtesy : @alok_bhatt

1. Can we hang this  perpetrator  ?

If you notice the senior Congress ministers arent committing to extending the death penalty to rarest of rare rape cases at all. They are issuing some slimy statements.  Lets assume for a moment they are serious about it based on this report.

Essentially, the Home Minister has promised:

» A strong law to deal with rapists that wil provide for capital punishment in certain cases; and,

» A commission of inquiry to review police responses to last Sunday’s rape.

Source : Niticentral

Say you amended the penal code to introduce the death penalty for the rarest of rare rape cases, would it apply to the accused in this case ? I dont think so.  Such an application would be an example of retroactive or ex-post-facto law.  This is generally regarded as evil for good reason. Zoom out from this case and think about if such laws can be passed as a general case. You cannot regulate your conduct with respect to any set of laws if

• they go back and redefine what is illegal in order to catch you
• having caught you for a violation, they redefine the penal code to punish you harder or softer
• having caught and punished you, they can roll back the new laws and codes

It is for this reason retroactive laws are banned in most countries. In India, Article 20(1) specifically bans such laws.

Article 20(1) in The Constitution Of India 1949

(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence

It appears the Congress government, and to a lesser extent, the BJP  are playing us when they announce such measures.  Most of them are in the legal profession and they know they are holding out false hope. You could probably amend the constitution to add a escape clause to 20(1) , but think about it : Do you want to sacrifice the entire basis of law for one case ?

2. Is death penalty for rape a good deterrent ?

If you are against death penalty in principle, obviously death penalty for rape is not on the table and the argument ends there. If you are for the death penalty in homicide cases, then you have a think a bit harder. You have to start separating the various types of such violations. The clearest separation is sexual violence against a minor vs an adult. On one hand if you believe the death penalty is a deterrent to murder then why cant it be a deterrent to rape ?  I suspect the answer is that is murder has a property of an  “end of the road” finality which rape doesnt have. Its really is all over in one case and there is no further legal interpretation required. This is not to diminish the life long psychological scars left on the rape victim, it just means it is a lot harder to have clarity while sentencing.

We are already facing an onslaught by far left marxist intellectuals, activists, and media outlets over abolishing all death penalty. Those of us who support it for its deterrence qualities stand to lose everything by extending it to rape.  The finer points have already been discussed thread bare in Kennedy v Louisiana (child) and Coker v Georgia (adult)  My own position is I dont support death penalty for adult rape and I am torn about child violence. Indian activists will yell “India is not America” but  please read the briefs in those two cases to build up your own positions one way or another. Sidestep what you read in the Indian media.

3.  What effect did the UPA pardons have ?

The Congress led UPA government in June 2012 pardoned 23 people on death row. Some of them had committed crimes worse than this on children and all of them had been sentenced to die by the Supreme Court after the ‘rarest of the rare’ doctrine came into effect.

Take the case of Molai Ram v MP. Here was a rape and murder committed by two convicts serving term on other charges. They brutally raped and killed a 16 year old girl inside the jail premises and dumped her body in a septic tank. Take the case of Shobit vs Bihar where a dacoity killed a family of six including two young boys who were snatched from the mothers lap and shot. The killers didnt want a Hindi film style revenge when the boys grew up because they had seen their father getting murdered. There is an example of a Sushil Murmu v Jharkhand where a killer kidnapped someones 9 year old son and beheaded him in a ritual sacrifice even though he had a 9 year old of his own. Then there was a 5 year old girl. Then there was a 10 year old boy. The list goes on and on and on. Notice what the Supreme Court observed in Murmu

This in our view is an illustrative and most exemplary case to be treated as the ‘rarest of rare cases’ in which death sentence is and should be the rule, with no exception whatsoever. Appeal fails and is dismissed.

Sushil Murmu v Jharkhand

Finally there is the case of Mulla vs UP, where poverty was stated as a mitigating factor in overturning the death penalty.  What this means in effect is that certain citizens can have an “inside” track when it comes to sentencing. This should shock us because it flies against basic principles of rule of law that calls for a general application. The only mitigating factors ought to be related to psychological state.

In effect, the marxists have not only succeeded in abolishing the death penalty through the backdoor but have undermined the uniform application of law. Would I support hanging the perpetrator in this case when the killers of the jailors daughter are alive ? No way.

On the big canvas I firmly believe the death penalty is a required deterrent in India. The life outside jail is one of filth, uncertainty, poverty, and violence. For many on the margins, life inside jail isn’t that big a deal. What works in Norway and France, life on the riviera, benevolent state stipends wont work in India.  A real cost benefit analysis would compare the uniform application of the death penalty in homicide vs a holistic reform system.

• Holistic reform : Assign social workers to those accused of gruesome crimes in order to make them better people. How much would it cost to run this ? Now that the deterrent factor is gone, how much would it cost to admit the flood of people that enter this system ?

We, the citizens of this third world country, should first get out of filth and squalor in a hurry. This is not to say that the rule of law must be treated as an inconvenience. We should revert to the simplest formulations of the rule of law. All available deterrents should be used to the optimum levels and no extraordinary processes to anyone.