Is capital punishment for rape justifiable?

Dr Vijay Kumar works as a Consultant  with Dept of Philosophy, Indira Gandhi National Open University (IGNOU), New delhi.

Vijay Kumar

Vijay Kumar

Finally, after a long battle of thirteen days “Damini” became a memory on Saturday in Singapore. The whole nation is shocked and in great grief. The painful incident raises many serious questions about nation’s socio-political culture, legal frame work and police functioning.

Common man of the country is so much anguished and agitated that a large section is asking capital punishment for the culprits. Truly, as in any civilized society the demand for justice has to be heard and the culprits should be punished. But, are we merely concerned about the quantum of punishment or do we want to solve the problem per se?

For the answer, we have to look at the problem from a totally different perspective. The problem needs to be analyzed holistically. This rape incident has two dimensions: one the status of the culprit; and the quantum of punishment. Prima fascia, the accused are solely responsible for the severe offence and therefore should be punished immediately.

However, one may ask again whose responsibility is to maintain law and order situation? Whose duty is to prepare a good, cultured, law abiding citizen? Who is responsible for a civilized society? The first place, it is the police, who need proper strategy and manning to control any eventuality. But often police do every thing except policing.

Before the rape and torture incident happened, the accused had picked up another passenger and robbed him before throwing him out of the same bus. When the victim approached the police, they refused to take any action. If necessary action was taken immediately the culprits could have been nabbed and the unfortunate incident could have been prevented. It was an opportunity ignored and later paid for dearly.  

Why should there be a state? According to Thomas Hobbes, it was for the welfare of all that man made contract and engaged themselves with the new form of a self appointed government. Contract assumed to choose the people who will work for the betterment of the society in general and of the individuals in particular. Consequently, it was supposed to be the most prime duty of the government to protect social, economical, financial and most importantly legal rights of its citizens.

Is today’s government doing its assigned duties towards its subjects, or at the least, the prime duty for which there is a state? It is a painful question to ask. Chief Minister of Delhi thinks that 600 rupees a month is well enough to meet the basic needs of a five member family. Planning commission says that a person with the income of 32 rupees a day is above the Below Poverty Line. It is hard to believe there is a government that is working for the welfare of the society.

A large portion of the society does not access the primary education forget about the secondary and higher level of education, and not to mention the quality. India is placed at a low bottom at the UN hunger index table. The unemployment among the youth is very high in the society. Do WE THE PEOPLE OF INDIA elect our leaders for this kind of lawless, unequal, poor, and exploited society?

In fact, the accused are the immediate culprits in the recent case of rape and should be punished for their unpardonable act. However, is not the real and indirect culprit the state? It is the duty of the state to prepare good citizen through various necessary welfare measures. And if there are crimes in the society, the state cannot be absolved of all responsibility.sad2

State also has to provide an adequate security system but often it doesn’t. Therefore, at the first place, state should be forced to take the responsibility of its failure to protect a woman’s dignity and welfare, that too, in the Capital.

Now, under the light of above discussion, we are in a position to investigate the second dimension of the problem that is; quantum of punishment.

First of all, demand for capital punishment is not sustainable as it is not rational and against the fundamental human right principle. Also it defies the purpose of punishment. Laws can not be formed on the basis of emotions. As law cannot be the reflection of collective will they should be built up rationally, untainted by emotion. They should be categorical imperative – that is what Immanuel Kant’s ‘duty for duty sake’ principle declares.

Secondly, criminals are not born they are the product of adverse social, cultural, economical and political conditions. Since objective of the law is not to eliminate the culprit but to eliminate crime from the society, the criminal should be reformed and not eliminated.

If the argument is that the criminals are punished to tame the society, another aspect of the public demand for public execution should be in the right direction. But, capital punishment is against the law of natural justice. It is unethical to use a person as a means of deterrence to other humans and hence the demand for capital punishment is unsustainable.

Fourthly, it is barbaric, brutal and fundamentalist way of punishment. Two wrongs do not make a right. Capital punishment itself is a form of violence against humanity and violence is condemnable at every level. Thus, capital punishment can not be a rational and justified legal policy.

Finally, our judicial system has great lacunas. Fair justice is not available to all section of the society at equal cost. Moreover, death penalty for rape could compel the rapists to murder the victim as that may be a better chance of escape. Therefore, demand of capital punishment for rape is impractical, unethical and against the demand of natural justice.

In fact, problem of rape need to be tackled from the socio-cultural and legal point of view. Simply playing with the rhetoric and polemics will not work. It is high time government and the society to wake up. It is high time for the government to take responsibility of their failure and take the corrective measures at the grassroots level.

It is the duty of the society as well to join hands together and force the government to accomplish their prime duty in an effective manner. Within an educated, enlightened and cultured society, the rights of marginalized, weaker and vulnerable section of the society can be protected. This may be the only way possible to stop heinous crimes such as rape. Otherwise we have to just wait for another rape and moron after that.