10 years of ‘Nirbhaya’ case: How does judiciary award death sentence; is it a deterrent?

It was in the month of December 2012 that Nirbhaya was raped by four brutal men on the streets of New Delhi. Ten years on, little has changed as the heinous crime against women has increased across the country.

The judiciary is flooded with cases of crimes against women. In many cases, courts have even sent the rapists to the gallows, which is the ultimate punishment.

However, is the death sentence the most befitting punitive action? What are the factors that lead the judiciary to order gallows for a rapist? Does hanging a rapist send a message to society as a deterrent against crimes against women?

Also Read: Infographic | Karnataka records rise in crimes against women

Let’s examine these questions individually.

One of the many factors that lead a judge to order hanging of a rapist is the “rarest of rare” doctrine. When a judge bases his judgment on this doctrine, it effectively nullifies life imprisonment. In one of its judgments (Bachan Singh v. State of Punjab (1982) 3 SCC 24), the Supreme Court of India laid down certain guidelines for a judge to decide a death sentence. These rest on many aggravating and mitigating factors.

What constitutes this doctrine? Is one rape less or more heinous compared to another?

A sexual assault is a sexual assault. There are no ifs and buts. Outraging a woman’s modesty is the most inhuman act that is unleashed not just on her physical body but also on her psyche.

However, when courts hear rape cases, the judges don’t have a common yardstick to decide the “rarest of rare” doctrine. Some judges go by their own sensitivity of the matter, thereby leaving a lot of scope for subjectivity.

For example, the Madhya Pradesh High Court had asked a rape convict to tie a rakhi to the victim and also, give an amount of Rs 11,000 as a gift to her. In another judgement, the top court commuted the death sentence of a rapist-killer convict as the bench felt that “every sinner has a future”.

So there is a lot of arbitrariness when it comes to adjudicating rape cases and awarding the death sentence.

Some rapes can’t be more lethal, brutal and horrifying while some others can’t be ordinary.

Also Read: Woman gang raped, brutalised in Maharashtra's Kurla

Death penalty not necessarily a deterrent for rape

In one of its judgements related to drug abuse, the Calcutta High Court made a very germane observation in relation to any crime.

A two-judge bench of Justices Joymalya Bagchi and Surva Ghosh had said, “… in the absence of clear and unequivocal evidence with regard to the deterrent impact of the death penalty on crime statistics, I am loath to impose the extreme penalty of death when the alternative sentence (is) of rigorous imprisonment of 30 years and that too without any possibility of remission…,”

It further added, “Imposition of death penalty on the appellant may or may not deter others from committing similar crimes in future. However, no statistical data or empirical study has been placed before me on behalf of the prosecution to conclusively establish that imposition of the death penalty would definitely lead to reduction of crime committed by others in society.”

Also, it would be pertinent to note that even after a decade of Nirbhaya’s unfortunate tragedy, rapes, gang-rapes continue in India. This, after the rapists were hanged till death.