Viewpoint: Why death penalty is not the answer to sexual violence in India Published duration 31 May 2017

image copyright AFP image caption The Delhi gang rape sparked nationwide protests

The death penalty is a distraction from the real measures that India needs to take to protect women's rights to safety, writes Gopika Bashi of Amnesty International.

Earlier this month in the Rohtak district of India's northern state of Haryana, two men were arrested after the body of a young Dalit woman who had been gang-raped and murdered was found in an empty field.

A team from the National Commission for Women which visited the area demanded the death penalty for the accused, citing the brutality of the crime.

Just a few days earlier, the Supreme Court had upheld the death sentences of four men convicted of the brutal gang-rape and murder of a young woman in Delhi in December 2012.

Several political parties and media stations celebrated the verdict. But what's been lost in the din is the futility and unfairness of imposing the death penalty in cases involving violence against women.

The Delhi gang-rape sparked nationwide protests and led to landmark reforms to India's sexual violence laws in 2013.

The reforms expanded the definition of rape and criminalised acts including stalking, voyeurism and acid attacks. It also introduced the death penalty in cases of rape leading to the victim's death or her being left in a "persistent vegetative state", and rape by repeat offenders.

Convictions in cases of sexual violence, however, continue to be rare. More than 34,000 rapes were reported in 2015, but the conviction rate was only 21.3%.

The use of the death penalty in India has been flawed and arbitrary.

A 2006 study of Supreme Court judgements on the death penalty by Amnesty International and the People's Union for Civil Liberties revealed that the imposition of death sentences was like a "lethal lottery", disproportionately affecting those with little wealth or influence.

image copyright Delhi police image caption The court upheld the death sentences of the men convicted of the 2012 Delhi gang rape and murder

The Supreme Court has itself admitted that the punishment - meant to be restricted to those "rarest-of-rare" cases where the convicted person is deemed to be incapable of reform - has been inconsistently handed out.

Over the past four years, various official organisations have also opposed the use of the death penalty, including in cases of rape.

In January 2013, the Justice Verma Committee - set up after the Delhi rape case to review sexual violence laws in the country - recommended that the death penalty not be used in cases of sexual violence, calling it "a regressive step in the field of sentencing and reformation".

In August 2015, the Law Commission of India recommended the abolition of the death penalty for most crimes, including sexual violence, stating that the punishment was not a greater deterrent to crime than life imprisonment.

'Strong message'

In May last year, a study by the National Law University of Delhi of all death row prisoners in India showed that three-quarters of them were from religious minority groups and marginalised caste groups.

The study also brought to light a range of structural deficiencies in the way the justice system treated death row prisoners.

Some women's rights activists in India continue to be vocal in their resistance to the use of the death penalty in cases of violence against women.

Women's rights groups protested against the government's decision to introduce the death penalty for certain cases of sexual violence even before it was finally enacted into law. However, these appeals, as well as the Verma Committee's recommendations, have been ignored.

The temptation of courts to use the death penalty to send a "strong message" to the perpetrators ignores the deep-rooted, structural causes of sexual violence.

Justice will remain elusive for victims until and unless there is an end to endemic problems that plague the criminal justice system.

image copyright AFP image caption The gang rape caused international outrage

These include flawed investigations, protracted delays in trials, failure to provide adequate compensation and protection, paternalistic and discriminatory attitudes in police stations and courts, and an almost complete failure to implement laws that address caste-based sexual violence.

Offences such as marital rape are not even recognised as crimes - a fact repeatedly raised earlier this month during a review of India's human rights record at the UN Human Rights Council.

When most sexual offences are not even reported to the police, it is naive to believe that executions will somehow curb violence against women.

'Collective conscience'

Four years ago, the pressure on the government led to reforms that provided an opportunity to increase women's access to justice.

However, invoking the death penalty does nothing to improve access to justice or to secure convictions.

The Supreme Court's repeated justification invoking the "collective conscience" of "the community" to impose death sentences is deeply flawed, as judges are not mandated to represent perceptions of the community's opinions.

This highly discretionary standard, which seemingly assuages "public outrage", ignores the public outrage directed at the state's failure to ensure access to, and certainty of, justice in all cases of sexual violence.

So instead of hiding behind the death penalty, India needs to take real measures to protect its women from violence.