The horrific sexual assault and murder of 23-year-old 'Nirbhaya'
shocked India in December 2012, drawing attention to the widespread
violence against women in the country and sparking nation-wide protests
and reforms.
On 31 August 2013, the judge presiding over the trial
of one of the accused will hand down the first verdict in the case. The
defendant is one of six people charged with tricking the victim into
boarding an off-duty Delhi bus where she was brutally gang raped on 16
December 2012. She died on 29 December 2012 due to injuries resulting
from the attack. Four of the other defendants are being tried in a
special fast-track court in New Delhi. The sixth was found dead in his
prison cell in March 2013.
While some in India have called for
the death penalty to ensure that 'justice is seen to be done', this by
no means represents the majority view. Most Indian states support life
imprisonment without parole, while many politicians have remained silent
on the issue. Similarly, protestors internationally have focused on the
importance of strengthening women's, especially victims', rights within
India. Indeed, many women's and human rights groups across India have
campaigned against the introduction of the death penalty for rape cases, arguing that it is "neither a deterrent nor an effective or ethical response to these acts of sexual violence".
However,
supporters of the death penalty continue to stress its symbolic value
for communicating collective condemnation. This argument ignores how in
practice capital punishment may lead to the further silencing of women
victims within the country by driving sexual violence underground where
it cannot be addressed. This problem is compounded by the fact that, according to National Crime Records Bureau statistics
from 2011, nearly 95% of offenders are known to their victims; a fact
borne out by the recent spate of rapes of women and girls in Delhi and
neighbouring Haryana, where the perpetrators were mainly relatives or
powerful upper-caste men from the area. If the death penalty is
mandated, it will become even more unlikely that victims will be allowed
to register their cases - already a common problem in India - against
neighbours, relatives, friends and men who wield immense local power.
Moreover,
there is no evidence to suggest that the death penalty is an effective
deterrent. Around the world there is a low rate of conviction in rape
cases, irrespective of the use of the death penalty. Also in countries
with the death penalty, men from minority communities constitute a
disproportionate number of death-row inmates. Within India, the law on
crimes punishable by death is selectively and arbitrarily applied to
favour the powerful, with persons from disadvantaged communities and
religious and ethnic minorities receiving the vast majority of death
sentences and long prison terms.
Ultimately,
the notion of the fundamental 'right to life' implies that even the
state should not have the right to take a life, irrespective of a
person's status or actions. Human rights-based perspectives argue that
punishment should focus on providing meaningful justice in the context
of both the victim's and offender's lives. Justice mediated by the state
should not seek shortcuts in addressing the complex socio-political
issue of violence against women. Far-reaching social change is needed to
tackle the cultural norms that allow men to rape with impunity. Using
the death penalty to quiet public anger, without changing society, will
not address the fundamental underlying issues.
It is encouraging
to note that positive steps in this direction are underway in India.
Following the murder of 'Nirbhaya', The Justice Verma Commission was
established to create recommendations regarding how India might curb
violence against women and strengthen rape laws. In its 630-page report
of 23 January 2013, the Commission suggested amendments
to the law to provide for quicker trials in rape cases and enhanced
punishments for sexual offences. By identifying Indian society's
patriarchal frameworks as the foundation upon which crimes against women
occur, the Commission gave Indian statutory agencies cause to reflect
on the extent to which social attitudes and norms contribute to the
climate of misogyny that feeds the commodification of women, in turn
leading to violence. The Commission's report also highlighted the
Government's responsibilities under the Indian Constitution to protect
the "right to life with all aspects of human dignity for women".
The
groundswell of public and media fury over the 'Nirbhaya' and other
recent high-profile rape cases has precipitated a political moment,
providing impetus for much needed reforms of India's laws, policing
practices and other aspects of the criminal justice system. However, in
seeking to seize the political moment there is a distinct danger of
acting in haste, ignoring the experience of the women's movement and
civil liberties activists about what reforms are most likely to prove
effective in tackling this problem. It is vital that India looks beyond
the natural human desire for retribution to seek more complex and
holistic ways (e.g. sex-offender treatment programmes and restorative
justice approaches) to deal with and, ultimately, prevent violence
against women, thus providing a true and lasting legacy of change.
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