Death penalty: Will it deter rapists?

Should Salim Ansari, Qasim Shaikh and Vijay Jadhav hang? These are the three Shakti Mills rapists who committed two gangrapes in Mumbai last year, and under the new tough anti-rape laws could be given the death penalty. And the death penalty is what they have got, something which now has to be confirmed by the high court.

The two incidents of gangrape were open-and-shut cases: the proof against the three men (and their different accomplices in the two cases) was clear and unambiguous. DNA evidence was incontrovertible, as were call records from the rapists’ phones. Finally, there were the eyewitness accounts of the two male friends of the victims who were with them at the scene of the crime plus the positive identification of the rapists by the two victims. As if this wasn’t enough, the demeanour of the three in court was of utter callousness: not only did the rapists appear unrepentant, the three often seemed to be gloating over their deeds and enjoying their 15 minutes of “fame”.

There is, therefore, not the slightest doubt about their guilt. The ghastliness of their crime and the need for the strictest possible castigation, a sentence which will also sends out a signal that our society will no longer tolerate crimes against women, demand exemplary punishment. The only question is of the quantum of the punishment: is death by hanging the correct sentence for the three repeat offenders? Or should it be a life sentence, i.e. the whole of their natural life to be spent in jail?

To start with, most developed countries have now done away with the death sentence altogether. The United States is probably the only Western country which has not banned it, but even there only nine of the US’ 50 states still enforce it. This is based on the principle that the death penalty constitutes “cruel and unusual” punishment which the state has no right to inflict, especially since the state cannot undo or reverse the punishment once given. Many men have gone to the gallows protesting their innocence, innocence which subsequent DNA tests (not available at the time of these older trials) have proved correct. Thus the so-called criminals were, in fact, victims, but their punishment was irreversible.

There are many other arguments against the death penalty, some of them particularly relevant to our country. What is the quality of forensic tests available in India? What is the level of detection and police work, especially in rural and semi-urban areas? What is the integrity of the cops conducting the investigation?

And if the undertrial is poor, what is the quality and competence of the lawyer conducting his defence? If the conviction rests on a confession, how reliable is that, considering that a confession can often be obtained under duress?

These arguments, of course, do not apply in the Shakti Mills cases, but another one does: what about the element of subjectivity in the form of the presiding judge’s beliefs and temperament? There are some who are called “hanging” judges, and some who are the opposite (the “bleeding hearts”). In the present case, the presiding judge (Shalini Phansalkar-Joshi) is a woman. Would a male judge have seen things the same way, and given a similar judgment? There are too many ifs and buts even in an open-and-shut case.

Sometime ago, our Supreme Court had laid down the guideline that the death penalty should be given only for “the rarest of rare cases”. The Nirbhaya gangrape case in New Delhi beyond doubt fell in this category because of the horrifying brutality of the gangrape, and the fact that the crime was so violent that the victim died of it. In the Shakti Mills cases, both victims are alive. In no way does one underestimate the trauma, both physical and mental, they have gone through, the latter probably scarring them for life. Not withstanding that, the fact remains that they survived the attack and can lead normal lives. Shouldn’t the rarest of rare definition take that into account, whatever the new law may say?

We also need to look at the age and the background of the criminals: Salim Ansari, at 28, is the oldest; Qasim Shaikh is only 21 and Vijay Jadhav is just 19. Their background — living in slums and pavements, with no jobs prospects and, most importantly, no education at all — would tell you that they have been raised in a cruel and callous environment, with no possibility of improvement. These are not excuses for a life of crime, but are explanations why some young men succumb to it. The behaviour of the three in court seems to also suggest that they are unable to comprehend the sheer enormity of what they have done. Should not this diminished sense of responsibility be taken as a mitigating factor in deciding their punishment?

Finally, in every discussion on the death penalty, arguments come down to the deterrent factor. Very many studies have shown that the prospect of a death penalty is never a deterrent.

Commonsense tells you why: a “hot-blooded” crime, such as unpremeditated murder or a rape happens suddenly, in the heat of the moment, and the perpetrator of the crime is unlikely to be thinking of the consequences. In a planned cold-blooded crime, like an elaborately planned murder, the criminal is aware of the consequences, but is so sure of his brains and cleverness that he thinks he will escape punishment.

To come to Shakti Mills, we have to ask ourselves these questions: if the rapists had been aware that they would get the death penalty, would they, then, have not committed the rape? Or would they have done their foul deed, and then destroyed all evidence by killing the victims and their friends?

Can anyone give a definite answer? I doubt it, which is good enough reason to reconsider the death penalty in cases like the Shakti Mills gangrapes.