Is mob fury driving Indian judiciary?

India rejoices as the Supreme Court has upheld the death penalty for the rapists in the Nirbhaya case. The feedback about the verdict has ranged from “It serves them right” ,“It will put the fear of God into rapists” and “I will sleep better knowing that these individuals are dead”. The merits of the argument that in a country of 1.2 billion, taking the lives of 4 bad men leaves the rest of us safer can be debated. But there is a larger question about our tryst with the Death Penalty and the utility, if any, that it has served.

I am not for a second, trying to argue that the crime was not reprehensible. On the other hand, even the Apex Court, I fear, did not fully comprehend the depravity in mindset and the heinous nature of the crime in as much as the convicts were held to be expressing lust through the perspective of violence. On the contrary, rape is far worse and more complex than just lust gone wrong. The clinical definition of rape, as defined by Nicholas Growth is that it is a pseudo-sexual act that serves nonsexual needs. Power, anger, control, sadism, violence, misogyny and a whole range of darker human emotions and beliefs, and not lust, ultimately lead to an act as depraved as rape.

These dynamics were obvious in the Nirbhaya case. The altercation between the victims (Nirbhaya and her friend) and the perpetrator, which culminated into rape and murder, began with the question as to why a girl was with an unmarried male companion late in the night. This question the convicts posed reveals the mindset that a lady is fair game for society’s judgment and, therefore, vulnerable to disciplining through whatever means men deem fit. Throwing the victim out of the bus unclothed- the need to inflict humiliation. The injuries on the victim, demonstrating extreme anger and perhaps even sadism. There was no lust in this crime- there were only misogyny, anger and the need to assert male control over a woman who the convicts unreasonably perceived as bereft of virtue and character. 

The convicts are, therefore, a shining example of all that is evil about mankind.

While they ought to be punished and kept quarantined from society, it still does not answer the debate around the death penalty. No doubt, the law has an incredibly difficult challenge in trying to formulate a perfect policy around the death penalty. On one hand, as John Douglas, the acclaimed FBI profiler has argued, some people are simply beyond the reach of reformative systems that mankind has designed. 

On the other hand, the anti-death penalty proponents argue, with force, that the state does not and should not have the power to take human life. Being able to address both schools of thought with objective reasoning and outcome is too tall a task for any system committed to the rule of law. Coming to India though, we broke the deadlock between the contradictory schools of thoughts around death penalty and concluded that it would be applied only in the “rarest of the rare cases”. But do all rarest of rare cases fitting this criterion attract the death penalty?

Take for example the case of rape and murder of the Late Priyadarshini Mattoo. Not only did the medical and forensic evidence show proof of rape, but the victim had sustained 19 injuries. In what suggested the violent mindset and the extreme anger of the convict, Santosh Kumar Singh had struck her repeatedly with a helmet causing, among other things, the cracking of the rib cage. In the infamous Soumya rape and murder case (the victim was raped and thrown out of a moving train), the very same Apex Court once again commuted death penalty to life in prison by holding that the link between the cause of death and the convict’s actions remain unproven.

In Santosh Kumar Singh’s case, two contrary outcomes- acquittal by the trial court and conviction by the high court proved to be the convict’s saving grace. How can the judiciary hold that he can be subjected to death when two proceedings led to two different outcomes thus demonstrating uncertainty over his actions? 

In Soumya’s murder case, true to the culture of restraint against the death penalty, keen attention to detail and analysis of the cause of death and of the evidence as to the actions of the convict led to the commuting of death sentence to life imprisonment.

Yet, the Apex court with such a fine history of always taking the higher path when faced with unclear evidence even if the crime was heinous adopted different approaches in the case of Afzal Guru and Yakub Memon. After all, if the convicts in the Priyadarshini Mattoo and Soumya murder case, with their lack of empathy and driven by a compulsive need to commit violence, could continue to live- why should Yakub Memon and Afzal Guru, whose crimes were driven by political ideologies be treated any different? But one received the death penalty for providing the financial backbone to the terror attack and the other received the death penalty to “satisfy public conscience”, a clear departure from the Apex Court’s earlier approach to cases involving similar dynamics.

Therefore, we must accept that the death penalty for the Nirbhaya rapists, though anticipated and inevitable, is the product of a jurisprudence that is inconsistent, lacks integrity and is frequently a polished version of mob fury. So why do we continue to apply it? 

Deterrence is the first argument for the death penalty. However, people fail to understand that for deterrence to occur, the death penalty must be imposed consistently across all cases of rape. Yet, in a country with a conviction rate of around 26 per cent for rape cases, forget the probability of the death penalty, the probability of being held guilty leans in favour of rapists. Further, with a police force and a criminal justice system that is perceived as overworked, underpaid and lacking professionalism, specialisation and respect for deadlines, deterrence continues to be a distant dream.

On the other hand, keeping convicts alive can potentially reduce the cost for the state in terms of fighting the lengthy legal proceedings that arise in the wake of a death penalty. It can enable law enforcement and researchers to break down the psyche of the sex offender, identify patterns and motives in sex crimes and develop investigation and prosecution tools necessary to quickly and effectively achieve justice, just like the Behavioral Sciences Unit of the FBI did. Don’t the utilities of keeping these criminals alive outweigh the utility of giving them the death penalty?

Undoubtedly, the debate around the death penalty has no easy answers. But pending a clear resolution to the inconsistent approaches towards the death penalty, reason and logic dictate that we suspend it until we have a clear idea as to when and why we award death to an individual for a crime. 

When the dust settles and the public emotions die their quick and natural death- we as a society have a question to answer. How much safer and how better off are we with the Nirbhaya convicts being put to death? The answer to this question, I am afraid, is disappointing.