Can the Death Penalty Deter Rape in India?

On August 8-9, a 31-year-old trainee doctor was raped and murdered in Kolkata’s government-run R. G. Kar Medical College and Hospital. The autopsy indicated that extensive injuries were inflicted on her before she was murdered.

“Death was due to effects of manual strangulation associated with smothering ... manner of death – homicidal,” the autopsy report concluded. “There is medical evidence of forceful penetration/insertion in her genitalia – possibility of sexual assault.”

Amid surging and sustained public demonstrations calling for justice, the West Bengal state assembly unanimously passed the Aparajita Woman and Child (West Bengal Criminal Laws and Amendment) Bill 2024, which prescribes harsher punishments for rape; the only punishment for rape that ends in death or a vegetative state is the death sentence.

Over the past decade, successive governments at the center and in several states have amended laws to provide for more stringent punishment in rape cases.

On December 16, 2012, a 23-year-old student was brutally assaulted and gang-raped by six men in a moving bus in New Delhi. When she died subsequently, a tidal wave of outrage swept India. There were calls for the death penalty and chemical castration of rapists.

In 2013, India’s criminal and penal codes were amended. Among other things, the Criminal Law (Amendment) Act of 2013 expanded the definition of rape and prescribed harsher punishment to rapists. The new rules allowed the death penalty, among other punishments, in cases where the victim dies or is left in a vegetative state. (The Bengal bill makes the death penalty the sole punishment in such cases.)

In 2018, following the abduction, gang-rape, and murder of an 8-year-old child at Unnao in Jammu and Kashmir, fresh amendments to the law enabled the court to hand out the death penalty to someone convicted of raping a child under 12, even if it did not result in death.

But have harsher punishments, including longer jail terms and even the death penalty, made India’s streets and workplaces safer for women?

Data from the National Crime Records Bureau (NCRB) indicate that the number of rape cases is alarmingly high. Moreover, the rapist is almost always a person known to the victim.

According to NCRB figures, the number of registered rape cases in India rose from 37,174 in 2014 to 38,947 in 2016. It dropped from 32,033 cases in 2019 to 28,046 in 2020. That was the year India was under prolonged lockdowns due to the COVID-19 pandemic. The figure rose to 31,677 cases in 2021. In 2022, there were 31,516 registered rape cases – an average of 86 rape cases daily.

It must be noted that these figures pertain to rape cases registered with the police. In India, most incidents of rape go unreported as survivors prefer to avoid the social stigma attached to rape and dealing with India’s insensitive and misogynist criminal justice institutions. Police are often unwilling to register rape complaints, whether due to caste solidarity with the assailant or under political pressure.

Consequently, official figures of rape in India provide only a glimpse of the tip of the iceberg.

When most victims of rape do not and cannot register police complaints, and when the criminal justice system does not work to ensure convictions, why would people feel deterred by punishment? Why would a rapist fear a life term or the death penalty when he knows that he can get away without any punishment for his crime?

It is not the quantum of punishment but the certainty of punishment that can deter a potential rapist.

But more importantly, India needs to change misogynist and patriarchal mindsets.

Media coverage and public discussions of rape incidents often see people questioning the character of the woman or the clothes she was wearing. What was she doing outside so late in the evening? When five men gang-raped a woman in a moving car in Kolkata’s Park Street area in 2012, media coverage was preoccupied with the fact that she was a single mother and was in a nightclub before she was raped.

People in positions of power making irresponsible statements is not uncommon. West Bengal Chief Minister Mamata Banerjee, a woman, trivialized the Park Street case as “shajano ghatana [a fake incident],” which was "designed to embarrass the government." The cop who solved the case and arrested the rapists was transferred.

In 2014, Samajwadi Party chief Mulayam Singh Yadav, a former Uttar Pradesh chief minister and union defense minister said that punishment for rape should not be too harsh: “Ladke, ladke hain. Galti ho jati hai [Boys will be boys. Mistakes happen].”

Particularly distressing and disgusting is the way parties and politicians endorse rape as punishment and celebrate the freeing of convicted rapists.

In 2002, when current Prime Minister Narendra Modi of the Hindu nationalist Bharatiya Janata Party (BJP) was chief minister of Gujarat, Hindutva mobs unleashed violence against Muslims in the state. Bilkis Bano, a Muslim woman, who was then 21 years old and five months pregnant, was brutally gang-raped. Her three-year-old child and seven members of her family were killed. After a prolonged and difficult legal battle, 11 men were convicted in 2008 and sentenced to life imprisonment.

However, on August 15, 2022 – India’s Independence Day – the 11 men were freed. Their premature release, which came on the orders of India’s Home Ministry, led by Amit Shah, was celebrated by BJP and Sangh Parivar activists. The men were garlanded as they stepped out of prison and a BJP legislator from Gujarat hailed them as Brahmins with good “sanskaar” (values).

While the Supreme Court subsequently reversed the release order, the damage was done. The message the episode sent out was that rape, especially of Muslim women, was acceptable, and that if rapists have political connections they can expect not just to walk free but be feted as heroes.

The death penalty alone will not prevent rape. The approach to fight rape has to be multipronged. A massive campaign, including change in school curriculums, which serves to dismantle misogynist mindsets is needed. That requires political will.