Vol – XLVIII No. 39, September 28, 2013
Hysterical demands for summary justice presage demands for a strong ruler.

Jubilation and cries for brutal and summary justice – we heard them on the streets of New Delhi and elsewhere after the fast-track court trying the four accused of the 16 December 2012 Delhi gang rape and murder of a 23-year-old woman announced the death sentence. The judge said that “the collective conscience” of the nation had been shocked by the crime and that the court needed to “send a strong deterrent message”. He justified his “death for all” ruling by terming this as one of the “rarest of rare” cases. It was on the charge of murder that the death sentence was pronounced, as rape under the previous law invited a maximum of only seven years in prison. But the crowds on the streets did not care under which law the case was tried; they wanted blood for blood, death for death. Nothing else would assuage their anger, or so it appeared. Short of demanding public hangings, the noose has become the dominant symbol held up at all public demonstrations demanding “justice”. Yet now that the courtroom drama has ended, we have to ask what difference this judgment will make to the very real questions surrounding women’s safety, the violence they experience on the streets and in their homes and the functioning of the dismal criminal justice system.

While pronouncing his judgment, Justice Yogesh Khanna, who presided over the special court, held that a strong judgment would “instill confidence among women”. But will it? Can one case, and that too an exceptional one, make any difference to women who are as fearful of what will befall them in the public space as they are of turning to the justice system for redressal? Justice Khanna’s own record illustrates well the problems embedded in the system. Of the 32 rape trials that came before him between 2011 and September 2013 (before the 16 December gang rape trial judgment), he acquitted the accused in all cases. This was inevitable, given the shoddy process of investigation and gathering of evidence, and the failure of the police to protect witnesses and the victims from intimidation. In the 16 December case, a combination of public and political pressure ensured that the police could not cut corners. We must recognise that this is an exception and very far from the norm.

The debate on whether the death sentence acts as an effective deterrent to prevent violent crimes, including rape, has to be placed within the wider context of the kind of society we seek – one based on justice or on revenge. The Justice Verma Committee went into the question of the death penalty for rape in great detail before putting forward recommendations for changes in the law. It concluded that even though the punishment for rape under existing law was inadequate, the death penalty was not the answer. It recommended instead enhanced punishment including life imprisonment rather than death. It demolished the belief, with facts from the experience in many countries around the world, that the death penalty decreases the incidence of violent crimes, including rape and murder.

Unfortunately, such thoughtful reflection finds no place in an atmosphere where demands for instant justice and quick-fix
solutions prevail. The latter is far more attractive than a reasoned discussion on what would work to make our country safer for women, and indeed for everyone. There is no room in the retribution hysteria to consider the systemic changes necessary to make existing laws effective, including better policing, better investigation into crimes, and reforming a court system that ensures that justice is both delayed and more often than not denied.

Beyond the specifics of laws and the criminal justice system as they relate to crimes against women, there are other, more serious, repercussions that could follow this kind of thinking that is drummed up and amplified by a 24×7 media machine. What we are witnessing is the predictable scenario where first there are demands for instant justice and stronger laws for horrendous crimes and then for a strongman to lead the nation. The root of such demands is clearly undemocratic. It arises from a refusal to accept the precepts on which the rule of law is premised, on what constitutes democratic governance, on the fact that processes cannot be speeded up to assuage the demand for justice by the majority or a minority. Such an approach also valorises efficiency and decisiveness, while rubbishing all talk of fairness and equity. It refuses to accommodate any discussion on the processes that undermine all laws. And it fails to heed the lessons of history (including India’s own experience during the Emergency) that a “strong” ruler, as many thought of Indira Gandhi, ensured that the law only worked for the powerful while the poor and the voiceless were condemned to permanent silence. If the debate triggered by the 16 December gang rape and murder on women’s safety and rights is to have any meaning, it must be rescued from the advocates of death and retribution.