Women celebrate after the Delhi gang rape case convicts were awarded death sentence Photo: PTI

Reading the reasons why the Additional Sessions Judge Yogesh Khanna awarded the death sentence to the four accused in the 16 December gangrape in Delhi makes you shake with horror all over again. The judge described why this falls under the rarest of the rare cases – the victim’s intestines were scooped out and she was dragged by her hair to the back of the bus. Then seeing that the door in the back of the bus was shut, she was dragged back to the front, hurled out naked on to the street with her friend and left to die.

One month after the details of this brutal act were still uppermost in people’s minds, the Justice Verma Commission formed a working group on human rights. This group consulted womens’ organizations working with rape victims, police persons, lawyers, judges, previous judgements in India that awarded the death penalty and those that did not and laws around the world from countries that abolished the death penalty – even for heinous crimes – and those that did not. Finally, they recommended to the government of India that death is not an appropriate punishment – even for the most brutal crime. Even when the crime is so painfully shocking that it’s impossible to even listen to what actually happened, as is the case with the 16 December gangrape.

The commission, in its final analysis, quoted from judgements in India and the US courts, but aligned its reasoning to a judgement in the US known as the Kennedy versus Louisiana case. In this case, a stepfather was found guilty of raping his 8-year-old daughter where her vagina was so badly torn that it separated from the cervix and made her rectum protrude into the vaginal area.

A Louisiana court convicted Kennedy, the perpetrator, to death. But when the case went to the Supreme Court, the final punishment was not death penalty because the court reasoned that  “when the law punishes by death, it risks its own descent into brutality.”

The arguments being made here, which the Verma Commission eventually owned, are complex. Justice Verma was not making out the case that what happened to Nirbhaya should not be handed the severest punishment. In fact, the commission, for the first time, suggested that seven years – which is prescribed by our current penal code – is not enough as punishment for rape and sexual crimes. Moreover, the crimes need to be graded – most heinous and those causing death and extreme brutality should get twenty years in prison at the very minimum and also in some cases, like the Nirbhaya one, the punishment should extend to the entire duration of the perpetrator’s life.

Awarding death for any crime, the Verma commission said, is a different ball-game altogether. It is a “a regressive step in the field of sentencing and reformation.” This is a philosophical, spiritual and arguably a Gandhian position that the commission took – that an ‘eye for an eye’ only makes us rotate within the vicious cycle of retribution and violence and prevents us from getting out of it.

If we were to look at the question differently – how can we reduce brutality in our society, then the abolition of death penalty per se begins to make sense.

It is widely acknowledged that in the middle ages, justice was meted out by public hangings and floggings,  which assuaged public outrage against an act of extreme brutality. And in the last two hundred years, that form of punishment was discarded in favour of perhaps less cathartic and much colder, more reasoned forms of punishment. The well known French philosopher, Michel Foucault described this transition in his classic Discipline and Punish: The Birth of the Prison as follows:

“It is the certainty of being punished and not the horrifying spectacle of public punishment that must discourage crime.”

Therefore, if we want to strive for a less barbaric society that produces fewer brutes, then our impulse to punish must also come from higher, less barbaric reasoning. Punish, we absolutely must. But not by descending to something that is, by all measures of modern day jurisprudence, barbaric.

There are of course questions asked by all of us who care, who cannot bear to hear what happened that night on the bus: What about Nirbhaya’s family and what they want? What about their sense of closure?

The difficulty with this answer is that for most of us, it is instinctively a resounding yes. Their voice matters most. And in lending our collective outrage and support to them, we are in some measure, however woefully inadequate, keeping them in good faith. We are telling them that Nirbhaya is in our collective consciousness and that we do not want her death to have been in vain.

But in order for her death not to be in vain, the Verma Commission also argued, we must be prepared to do all that it takes to be a less brutal society. Our absolute and unflinching commitment to Nirbhaya must be to find ways of making sure that we do not encourage uncivilised and brutish ideas. Our system of punishment must, above all, reflect this commitment.