In the outrage that followed the rape of two children, in Kathua and Unnao, death for the crime of raping a child was the loudest demand. The sickening details of the two rapes—and undoubtedly of the hundreds of others that do not catch national attention—make the outrage understandable. An ordinance increasing the maximum punishment for raping a child under 12 to death penalty was issued. But whether or not it is going to deter potential criminals is an open question.

Economists see criminal activity as a rational response to the pay-offs that confront the potential criminal. If the severity of punishment is high and the likelihood of being convicted is reasonable in the eyes of the criminal, he will be deterred from criminal activity. The likelihood of punishment is just as important as its severity, and this is an important reason why increasing the maximum punishment alone is unlikely to be a significant deterrent to rape.

There is good reason to believe that criminals don’t consider the probability of being punished sufficiently high. The most important reason is the low rate of conviction in crimes against women. While the overall rate of conviction in the country was 46.2% in 2016, it was around 20% in cases of crimes against women. Moreover, as reported in this newspaper on Tuesday, 99% of sexual assaults go unreported. What does this mean for the potential criminal? It means that he likely knows, or has heard of, people who have raped and gone scot free. Perhaps he himself might have committed a crime and realized the laxity of the police. These experiences determine his low expectation of being caught and undermine the deterrence effect of penalties. Therefore, the key factor in deterring crime is to change this perception, and work towards increasing the probability of conviction. That will require reforms on three fronts.

The complicity of the local policemen in the Unnao case brought forth the ugly reality of the nexus between the powerful and the police. The average citizen relies on the police to prevent crime, so police reform is the most important response. The first challenge is that of the police’s capacity to ensure law and order and investigate cases. India has around 135 policemen for 100,000 people, one of the lowest figures in the world. In order to achieve independence for the police and establish its accountability, the Prakash Singh And Ors v. Union Of India And Ors judgement of the Supreme Court in 2006 laid down seven directives for states and union territories. The reforms included constituting a State Security Commission (SSC) as a means to define the powers of the political executive and the police; rules for selecting the director general of police (DGP) and the security of tenure of the DGP and senior police officers; separation of police for the investigation and law and order roles; and an independent police complaints authority to inquire into complaints of the public against the police. The Commonwealth Human Rights Initiative (CHRI) published states’ status of compliance this month, and no state has fully complied with the recommendations in spirit. For example, while many states have SSCs, they don’t have binding powers. The DGPs continue to be selected at the discretion of the state government, and there are clauses allowing premature transfers, enabling political discretion. The separation of the investigative role of the police has not been done in several states.

The second reform has to be of the justice delivery system. The high pendency rate of our courts has become folklore, and since the Nirbhaya rape, the go-to response of the judiciary has been the setting up of fast-track courts to hasten the delivery of a judgement in a case of sexual assault. The original concept was to hire additional judges and establish new infrastructure to set up these courts. But these courts don’t differ from the usual courts in any substantive way. Moreover, the pressure to dispose of cases faster has reduced the immunity of their judgements from challenge in higher courts, where cases again slow down and are often overturned, sometimes for not having followed due process. The practice of pulling away judges who are hearing regular matters to these courts also raises questions about whether the government is differentiating between victims.

A swift and fair justice delivery system is crucial to deterring crime, and a wide range of reforms—increasing the number of judges, implementing case-management systems, strict guidelines for the grant of adjournment, etc.—have been recommended by the Law Commission. As tired a trope as this might sound, implementing these reforms is crucial to achieving an efficient justice system in the country.

A progressive mindset about sexual assault is the third change that is imperative. It is common for women to avoid reporting sexual assault for fear of the shame it would bring them. This conditioning allows criminals to go scot-free and punishes the victim. An increase in coverage of the feminist perspective helps, but it’s crucial for the fence-sitters to become vocal critics of regressive practices such as victim blaming, and reducing a woman to her sexuality.

The death penalty goes against the recommendations of the Law Commission and the Justice Verma committee, which showed that it creates no more deterrence than imprisonment for life. Perversely, the ordinance does increase the chances that the rapist will kill the victim in order to erase evidence.

The breakdown of the justice system is intricately linked to the corruption of our political class. The solutions have been on their table for years, but it will hurt their self-interest to initiate radical change. The ordinance has been passed only to calm an enraged society when the government has clearly failed to fulfil its most essential duty of protecting the life and dignity of citizens.

What measures can the government take to reduce the incidence of sexual assault against women? Tell us at views@livemint.com

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