Delhi gang rape death sentences a hollow victory
It was a crime so barbaric it appalled a nation that is often indifferent to sexual violence. It dominated newspaper headlines for weeks and fired mass demonstrations, candlelight vigils and hectoring mobs demanding justice as brutal and immediate as the crime itself. It led to a change in the legal system itself, with India’s Parliament passing a more stringent law on sexual violence in its wake. Pronouncing their verdict on the matter in May last year, the bench of Supreme Court judges adjudicating the case said that, if ever there was an exemplary case to be made for the death penalty, “it is this one.” When the court gave its verdict, one journalist tweeted, the “entire courtroom broke into applause.”
So, when the same Supreme Court dismissed last week the appeals made by three of the four men on death row in the Delhi gang rape case of 2012, leaving it very likely that they will be hanged sometime in the near future, why did the “victory” declared by many prominent public figures in India — and also the parents of the 23-year-old victim — feel so hollow?
Perhaps it is not that the meaning of the crime has changed; it is that what it means to apply the punishment has
After all, nothing had changed about the facts of the case. On the night of Dec. 16, 2012, the victim was brutally assaulted and raped by six men (including the three appellants) on a bus in South Delhi and then thrown out of the vehicle. She died a few days later in a hospital in Singapore. The identity of the six perpetrators was not in doubt, nor was their status as adults in full possession of their mental faculties at the time of the crime. Aside from the three who appealed their death sentences, a fourth member of the accused did not appeal the verdict; a fifth, a juvenile, was sentenced to three years in a justice home and is now free again; and a sixth committed suicide in jail.
Further, the pleas for reconsideration made by the lawyers representing the condemned hinged on arguments — that they were first-time offenders or that the lives of their families would be devastated — that had already been discussed and dismissed before.
The case had remained unaltered in all its crucial aspects, and public sympathy for the victim and her brave and dignified family had only grown in the five years they had spent in the glare of the media spotlight. What had changed between 2012 and 2018, rather, was the character of Indian society itself, and the growing unease among many Indians of a liberal or moderate persuasion — at a time of growing vigilante justice and mob lynchings, often prompted by unverified rumours — with the spectacle of moral righteousness and even arrogance that is associated with celebrating, or even affirming, a death sentence.
The discomfort in India has something to do with the growing awareness that punishing violent crimes with death does not in any way redeem the society that so construes justice, and that remains so obstinately medieval in its outlook toward gender and sexual violence. Perhaps it is not that the meaning of the crime has changed; it is that what it means to apply the punishment has. In condemning the four men to death, India appeared to be forgiving itself for its abysmal record on sexual violence.
India is among a minority of nations that still has the death penalty on its statute books (although unlike, say, China, it is very infrequently applied; only four people have been hanged in the last 15 years). This was one of the arguments made by the lawyers for the appellants, who put before the court the proposition that the death penalty was itself inhuman, and that it has been repealed by many countries. The court’s answer was that, as long as the death penalty remained in the Indian Penal Code, it was constrained to apply in “appropriate cases.”
So that puts the ball in the court of the legislature. But, if anything, the offences that come under the ambit of the death penalty in India have only increased since 2012. Earlier this year, India’s Cabinet signed a law introducing the death penalty for those who rape children under the age of 12 (more than 40 percent of the rape cases registered in India every year involve minors).
There is little legal evidence that instituting the death penalty for an offence acts as a deterrent. At best, one could argue, as the Indian constitutional expert Pratap Bhanu Mehta did in an essay in 2013, that the death penalty is actually a way of recognizing the humanity of the perpetrator, by acknowledging him or her as a member of society bound to certain standards of responsible conduct.
But even Bhanu Mehta agreed that the death penalty has a dangerous way of privileging retribution as the correct method of meting out justice, and that it has the ugly side-effect of constructing “a false idea of collectivity” among those who applaud it.
Perhaps the most realistic response to last week’s Supreme Court verdict is that closure has finally been achieved for the suffering family of the woman who came to be called “India’s Daughter.” And that, while laws may have become more stringent, there is no immediate prospect for injustice coming to an end for the millions of other Indian women who remain at the mercy of a patriarchal, predatory and morally complacent social order.
- Chandrahas Choudhury is the author of the Mumbai novel “Clouds,” published in January 2018 by Simon & Schuster. Twitter: @Hashestweets