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Nirbhaya case: Death penalty being used to 'distract' public from state accountability

By Our Representative
Even as the date for the execution of Nirbhaya rape case convicts -- Akshay Kumar Singh, Mukesh, Pawan Kumar and Vinay Sharma -- draws nearer (February 1, 2020), the Coalition Against Sexual Violence and the Death Penalty has said that "execution is not the solution to the problem of sexual crimes. It is only a spectacle created to distract us."
Addressing media in Delhi, women's rights activists attached with the Coalition have asserted that what India one needs to do is the hard work to dismantle networks of power and privilege that perpetrate sexual violence on women, especially the most disadvantaged, as well as people of marginalised sexualities and genders.
Speakers emphasised that death penalty was being used to distract and dissuade the public from holding the state accountable for its failure to prevent crimes against women for its failure to ensure access to justice for victims of sexual violence, and failure to ensure speedy and meaningful justice in cases of sexual violence.
Despite having identified the actual systemic and institutional barriers to justice in cases of sexual violence, the state, police and courts do little to remedy the same. Instead they continue to resort to the instrumental use of the death sentence under the garb of “rights of the victim”, they added.
Activists highlighted lack of political will to pursue preventive measures to address sexual violence that were recommended in the JS Verma Committee Report, noting, death penalty shifts away the focus from the violence faced by women in everyday lives.
It was emphasised that a victim of sexual violence has a right to justice in the form of support, compensation and an acknowledgment of her violation. However, it is dangerous and counterproductive to perpetuate the myth that a higher sentence or the death sentence will serve the cause of victims. Data and studies from many countries around the world show us that death penalty does not deter crimes, it was suggested.
Advocate Tara Narula, member, Women in Criminal Law Association, spoke about the problems within the criminal justice system that need to be fixed right from the stages of reporting, investigation and forensic examination as well as in relation to the victim support mechanisms which are presently unavailable.
Narula said, the police must understand and be compelled to implement the law in letter and spirit, with the sensitivity crucial to handling cases of sexual violence. Numerous studies by women’s rights groups show that the biggest gaps for the victims within the criminal justice system are related to reporting a complaint at the police station, lack of support and guidance to the victim to help navigate the pre-trial through trial stages.
These studies also find inconsistent compliance by courts with the victim support procedures that are mandatory in rape trials. Punishment comes at the far end of trial, the very last stage of a long and traumatic journey that not every victim and her supporters have the tenacity to survive. Therefore, it is necessary to first strengthen processes of investigation, and sensitise the police and the judiciary, instead of focusing entirely and only on punishments, she added.
Enakshi Ganguly, co-founder, Haq Centre for Child Rights, shared the impediments that child survivors of sexual violence face when accessing justice. According to her, the introduction of death penalty to this context only deters reporting of an offence that is already under reported because most perpetrators (over 90%) are known persons.
Sudeeti, member, Pinjra Tod, said that the demand for death penalty for the rape convicts operates on the principle of externalizing the problem of sexual violence in our everyday structures and lives, and locates it on a handful of convicts identified in the most publicised and brutal rape cases.
As if, exterminating these convicts can rid us of the problem of rape altogether, she said, adding, yet rape continues unabated and only becomes more brutal. She posed the question: “Are such exemplary punishments not just a band-aid for a larger structural problem done to ease public rage over an issue or to reaffirm public faith in the state that refuses to take any effective structural measures for ensuring safety and well being of women?”
Kavita Krishnan, secretary, All-India Progressive Women's Association, said that “the exceptional, highly publicised executions of rape convicts in a rare case, far from deterring rape, actually deters our society and our Government from confronting and taking responsibility for rape culture."
She added, "An execution falsely reassures us that rape is a ‘rarest of the rare’ act committed by strangers, beasts. In fact, rapists are usually not strangers, but men we know and admire - and rape is a product of our patriarchal society, not an isolated rare instance.”
In fact, Krishnan said, the National Crime Record Bureau (NCRB), 2017, data indicates that the majority of sexual violence offences committed under the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act, 2012, were by acquaintances (over 93%), including family members, relatives, friends, neighbours or other known persons. In such a scenario, introducing the death penalty is most likely to deter reporting, rather than deter the crime itself.
Highly publicised executions of rape convicts deters society from questioning government to take responsibility for rape culture
The death penalty disproportionately impacts minority communities, said Neetika Vishwanath, associate, Project 39A, National Law University, Delhi, sharing findings from Project 39A’s foundational work, 'Death Penalty India Report, 2016', as a part of which all prisoners sentenced to death in India were interviewed.
It was found that nearly 75% of prisoners sentenced to death in India were from marginalised socio-economic backgrounds, she said, adding, She also death penalty sentencing framework and its inconsistent interpretation leading to arbitrary imposition of death sentences has also been acknowledged by the Supreme Court.
Kamla Bhasin, feminist activist, read out a poem written by her which highlighted the deep- rooted rape culture that is created, sustained and often promoted by our society. She called out the selective outrage only in some cases without attacking the misogynistic roots of our culture and emphasised the need to focus on preventive measures.
Vani Subramanian, women’s rights activist, Saheli Women’s Resource Centre, and documentary filmmaker, highlighted vulnerability in times of conflict and recalled the horrors of the Khairlanji and the Manorama case and the numerous cases of brutal sexual violence on women from Dalits and Adivasi communities, ethnic and religious minorities as well as transpersons, kothis and gender non-conforming persons.
Speakers discussed a multitude of steps that the government can take to ensure the safety of women and tackle sexual violence, rather than focussing solely on punishment. They reiterated the suggestions made by the Justice Verma Committee in 2013 some of which are as follows:
  • Increasing the strength of judges for timely and fair disposal of cases,
  • Insulation of police from political or other extraneous influence for better performance, regardless of their jurisdiction.Mandatory intervention of police officials to help victims, punishment to police officials who refused to register FIR or abandon the investigation,
  • Training of police officials and medical professional while investigating and treating victims with care and dignity, mandatory immediate medical help to victims even by the private hospitals,
  • Protection of victims and witnesses,
  • Disqualification of candidates from electoral process if pending trial,
  • encouraging street vending to make bus stops and footpaths safe for communities and pedestrians,
  • Adequate street lighting at all places,
  • The Committee further suggested a Bill of Rights.
  • Amendments to the existing school curriculum to include a component of sexuality education and gender sensitization to psychologically reconstruct psyche of Indian male.

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