With the sessions court in Mumbai awarding the death penalty to three convicts in the Shakti Mills gang rape case and with the Supreme Court commuting Delhi bomb blast convict Devinder Pal Singh Bhullar's death sentence last week, the debate around capital punishment is in focus yet again.
Karuna Nundy, a Supreme Court advocate specialising in human rights litigation and a legal policy advisor to United Nations agencies, in a conversation with Ritika Bhatia, points out the inconsistencies in the manner in which capital punishment is awarded in India
What is your view of the death sentence in the Shakti Mills case?
The Shakti Mills judgment throws up a new, grave inconsistency in the law - for murder, death penalty may only be passed in the rarest of rare case, but as of last year it can be awarded for any and all repeat cases of rape. So the death sentence is more likely for repeat rape than murder. Ujjwal Nikam, the prosecutor in the case, is reported to have argued for the death sentence because "survival without honour and chastity is no survival at all". The jurisprudential difference between the two positions isn't based on a thought out legal philosophy. It comes from a patriarchal belief that a woman raped is worse than a woman dead. This legal anomaly ignores also the interests of women in increasing the likelihood that a victim will not just be raped but raped and killed.
Do you think the death penalty acts as a deterrent for future criminals?
There's no data to conclude that capital punishment deters violent crime. In fact, some studies show that an upsurge in murder in the US occurred in states that reinstated capital punishment in the 1970s and 1980s. Cultures with high levels of violence and an inclination toward vengeance, experience an increased murder rate following executions - a brutalising effect. A person can be legally killed by the state for murder - in the rarest of rare case, causing rape and coma or a second rape. In the last case there is an incentive problem - death penalty for rape and murder means the rapist is incentivised to rape and kill the victim, especially given the importance of a survivor's testimony in the trial. Some say that the death penalty sends a clear message but what exactly is this clear message?
India is one of the foremost countries in the world, including China, Saudi Arabia and the US, which still award the death penalty.
We are behind 140 countries on this. Nepal abolished the death sentence in 1997; Bhutan abolished it in 2004. We are now in a miniscule minority of nations that have increased the ambit of the death penalty with the Criminal Law Amendment Bill 2013, allowing it for some rapes, and death sentences have risen in the recent past. The Supreme Court standard of appeasing the "collective conscience" of the people to justify such killing is problematic, a constitutional right to life can't be sacrificed to satisfy a perception of mob justice. There is no sure way to determine the collective conscience in any case. Polls show that the country split pretty much down the middle on this issue. Trial court awards of the death sentence vary wildly from case to case. There are some cases of extreme brutality where the death penalty has not been applied, and we have less brutal cases where it has been applied.
In high profile cases, does public opinion sway the verdict?
Some trial court sentences may be influenced by demonstrations or even primetime news pieces, with the "collective conscience" reasoning and the "rarest of rare" standard being confused with brutality. Even in the Bhullar case, one SC judge had acquitted him, while two had convicted him. Had the SC not set aside his death sentence on grounds of delay and mental illness, it is entirely possible that his life would have been taken away.
What do you think then, is the best way forward?
The death penalty has to be abolished. It is inconsistent with our true democratic constitutional values. After the Delhi gang rape case, in particular, there have been many bloodthirsty cries from a lot of politicians in favour of the death penalty. What we need to realise is that sentencing is one tiny aspect in terms of effective prosecution of crime. Criminology studies have shown that what works is swift and certain justice as opposed to extreme sentences. There have also been no mass-funded public education campaigns to transform the culture of misogyny and sexual violence and discrimination against women.