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Why people should stop calling for death penalty for rapists

The knee-jerk reaction to public anger against the Kathua rape and murder case in the form of an ill-conceived ordinance needs deeper analysis.

 |  6-minute read |   06-05-2018
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Paul Taggart right said that populism has an essential chameleonic quality that means it always takes on the hue of the environment in which it occurs. Populism emanates from democracy itself. As Gianfranco Pasquino notices, democracy has no automatic barriers against populism. Populism, as explained by Fareed Zakaria, is a form of illiberal democracy.

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The knee-jerk reaction of the Indian government to deal with the exigencies arising from the Kathua rape and murder case by bringing an ill-conceived ordinance in complete haste needs deeper analysis. It is an unscrupulous attempt by the Indian government to satiate public outcry that followed the gruesome crime by brushing under the carpet, the communal undertone associated with the crime.

In the Kathua case, the ultimate aim of the rapists was to instil terror in the minority community Bakarwals so as to scare them away from the Hindu majority region. The criminal intent that led to such a horrendous crime needs to be seen in light of the popular discourse that many Hindu nationalist leaders have been propagating for a really long time.

Controversial journalist Suresh Chavhanke, who heads Sudarshan TV and a fringe Hindu group called Rashtra Nirman Sangathan was part of a Bharat Bachao Rathyatra, which started from Jammu. "It is important to control population, but it's crucial to control the imbalance in population," Chavhanke said. "The imbalance is that despite giving out Pakistan on the basis of religion, there is an increase of mini Pakistans in India and should be stopped," the former Rashtriya Swayamsevak Sangh (RSS) worker told a crowd of 300 people. This was amid heavy applause and chants of "Bharat Mata Ki Jai".

The bottom line of such a discourse is that the Muslim-majority Kashmir has plans of changing the demography of Hindu-majority Jammu. The infiltration by Rohingya Muslims also met with similar discontent.

Situating the crime in its socio-political context, it is evident that the crime was not directed towards a girl, it was an attempt to inform the Bakarwals that they needed to mend their ways.

Bakarwal (or Gujjar-Bakarwal) is a mostly-Sunni Muslim nomadic tribe based in the Pir Panjal and Himalayan mountains of South Asia. They are mainly goatherds and shepherds.

In the absence of land records with local municipal, Hindus consider Gujjars-Bakarwals as "land grabbers" and have a disdainful attitude towards them. It is when these attitudes are fanned that they translate into such horrendous crimes, the details of which can shock the conscience of any nation to the core.

I am concerned why the invocation of section 153 A of the Indian Penal Code, which makes promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, punishable, is not being deliberated upon in this case. According to reports of National Crime Records Bureau (NCRB), 336 cases related to offences promoting enmity between different groups on the lines of religion, race, place of birth were registered in 2014. The number has risen to 475 in the year 2016, an increase of over 41 per cent.

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Hate crimes cannot be brushed under the carpet as they have the power to eat up the social fabric of the society. It needs to be succinctly pointed out that nationalism, sexism, and religion do not act independently of each other. These categories interact at multiple levels to create the system of oppression, a glimpse of what we witnessed in the Kathua case.

After uncovering the populist motive of the government under the garb of being a responsive one, I attempt to project how the ordinance is a hollow piece of hastily conceived legislation aimed to pacify popular discontent. As two of the accused in the Kathua case have political links with the ruling government and elections being close, this is a contemptuous and reactionary attempt to avoid electoral troubles.

Any piece of legislation that is divorced from social reality is an eyewash. Pericles, the Greek philosopher, had once said that the worst thing is to rush into action before the consequences have been properly debated.

The amendment to Protection of Children from Sexual Offences (POCSO) Act does not meet the test of the ground reality.

In the scenario where the original provisions of the Act like "special courts", "special" prosecutors aimed at making the trial process "children friendly" remain hugely unimplemented, bringing justice to victims via legal reforms is nothing but an act of selling sweet lies. Even today in the ambit of implemented laws against gender violence, girls and women face innumerable barriers in accessing legal justice. They have to face humiliation at police stations, hospitals and during multiple hearings in courts.

The ordinance increases the punishment for rape by amending section 376 of the IPC. The minimum punishment for rape has been increased from the existing seven years to 10 years. The minimum sentence for rape of a girl below 16 years will now be 20 years but extendible to life imprisonment with a fine.

Every convict in a gang rape case will be sentenced to life with a fine. Punishment for those guilty of raping girls below 12 years will be handed a jail term of 20 years and life imprisonment, along with a fine, or death.

The age limit of 12 years is arbitrary because in India ossification test is used to determine the age of a convict.

Trend suggests that introducing higher mandatory minimum punishments for any crime actually leads to a lower conviction rate in practice. In a country where the number of reported cases is increasing every year but the number of convictions is not matching up, the latent issue worrying us should be the number of cases that are deceivingly showcased as being fraudulently reported.

Death penalty will have the inevitable effect of putting the lives of future victims at grave risk. When there is no difference between punishments for rape and murder, the perpetrators will necessarily kill the victim to wipe out all evidence. As per NCRB statistics on the rape of women and children, 94 per cent rapists are known to the victim, and almost half the perpetrators include fathers, brothers, grandfathers, close relatives, and neighbours.

With death penalty as the punishment in offing, it is highly unlikely that the cases of incest will be reported.

The Law Commission in its report on the question of death penalty said: "Continued administration of death penalty asks very difficult constitutional questions... These questions relate to the miscarriage of justice, errors, as well as the plight of the poor and disenfranchised in the criminal justice system." Death penalty is not a solution according to the reformative theory of punishment.

What we see today is the blind obedience of constitutional morality on part of the government by completely ignoring ground realities. Access to legal justice cannot be ensured by bringing more reforms. The need is to investigate the roots of such horrendous crimes in the very social fabric that breeds it, breaths it and ultimately gets destroyed by it. Legal rules need to be contested and deliberated upon in the light of social reality.

Also read: Ex principal of St Stephen's College responds to vandals defacing chapels with 'Mandir yahin banega'

Writer

Ayushi Dube Ayushi Dube @ayushiambu

Author is a research scholar in the department of humanities and social sciences at Indian Institute of Technology, Kanpur.

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