Capital Punishment for Rape: Deterrent or a Populist Law ?-I

Capital Punishment for Rape: Deterrent or a Populist Law ?-I
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After the horrific and brutal Kathua rape and murder, followed by widespread outrage and condemnation, the Government of India passed an ordinance, ‘The Criminal Law (Amendment) Ordinance, 2018’. Post Nirbaya gang-rape and murder on 16 December 2012, criminal law regarding rape was amended in India. The Criminal Law (Amendment) Act of 2013 made certain reforms in the rape law. One of the reforms was that the punishment for rape was made stricter and uniform. The courts’ discretion to give rapists a sentence lesser than the minimum of seven years was abolished. Separate punishment for repeated offenders was also introduced, including the possibility of death sentence. But, has anything changed since Nirbaya? The answer is absolutely, no. There were 24,900 rape cases reported in the year Nirbaya died. In 2016, according to National Crime Record Bureau, the number of rape cases went up to 38,947 which are more as compared to 2012 and not less after the amendment in the rape law.
The new ordinance, 2018 provides for death penalty of rapists of girls below 12 years of age. The minimum punishment for rape has been increased from seven to ten years. Also, the minimum punishment of rape of a girl of age between 12 and 16 has been increased from ten to twenty years. The police officer committing rape anywhere shall be awarded rigorous imprisonment of minimum ten years. Investigation of rape cases has to be completed within two months. No anticipatory bail can be granted to a person accused of rape of girls of age less than 16 years. Appeals in rape cases have to be disposes within six months.
Is this new anti-rape ordinance which prescribes capital punishment for child rapists going to bring down the number of rapes? Is it a deterrent or a knee-jerk action? Is this law populist? Will death penalty serve as deterrence and bring down the crime? Let’s analyze and try to get the answer of each question.
Capital Punishment: The Way Forward
In a TV debate on the topic ‘Death for Child rape – Will New anti-Rape Law deter Offenders?’, Justice R.C Chopra, former judge of the Delhi High Court, said that he has found in hardened criminals, fear of jail is no longer in their minds. He further said, fear of death still remains there. When they apprehend, they turn pale and they start trembling. Regarding death sentence, the Justice feels that, it may not immediately stop all rapes because these are crimes, out of lust. These are not usually committed by hardened criminals but if people at large and likeminded people know that this offence is going to inflict heavy penalty on them and going up to death sentence, they may have change of mind and they will think hundred times before venturing into such thing. Justice Chopra further observed: ‘that one thing all criminals are more scared about anything else is their own life and therefore, if they know that they could end up dead, they will over period of time bring down the number of rapes.
In the same debate, Vikram Singh, former DGP, U.P said, the world knows that you have to be cruel, to be kind. Death penalty is the only solution. The rape is a crime of passion and lust. The mind of a rapist is weird or programmed and only a strong punishment in the form of death will deter them (emphasis added).
One of the arguments is also that the rape scars women for life and if you spoil the life of a rapist, it is not cruel or inhuman but is need of hour. Faith in the law will only be restored if there is a severe deterrent to those committing heinous crimes. The law should generate fear in the hearts of potential criminals and violators.

—To be continued…
—The author is a student of Law at the Department of Legal Studies, Central University of Kashmir. He blogs at: and can be reached at: