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Nirbhaya’s Rapists Might Hang, But Maybe We Also Need To Look Beyond The Death Penalty As A Solution

Posted: January 21, 2020

As the hanging of Nirbhaya’s rapists is getting delayed, her parents are obviously waiting for justice to be served. But we should also think if this is a long term solution.

In the seven years since the brutal gang-rape in Delhi, not much has changed. I could throw headlines at you from these years, but it would still only be the tip of the iceberg.

In this time, the perpetrators of the gang-rape in Delhi appeared before the court, and were eventually given death sentences that are on their way to being implemented.

Too little, too late?

Let’s take a moment to reflect on what we’ve seen in these seven years. After the incident, a massive wave of protests swept the nation. The Justice Verma Committee recommended changes in the law. Some changes in the law came about. And the crimes continued, unabated at best.

The heinous nature of the crime and the sheer lack of regret on part of the perpetrators as seen expressed in many outlets, took the nation by surprise, and left a bitter feeling of anger that did not seem capable of being quelled, to say the least.

In the near-decade period since the crime and the death of the young woman in the case, there was no closure and no attempt speeding up the process to justice. While we did hear of their appearances in court every now and then in the news, there wasn’t any conversation around the need to fast-track such cases, to further the cause of justice, and to prioritize the case. This also speaks of the structural apathy that survivors continue to face: stories of survivors being turned down by the police, their families shamed, and complaints not being registered when the survivors or their families reach out to the police are all too familiar.

The young woman who was brutally gang raped in Delhi remains in our collective memory, and we haven’t, as a nation, done right by her. Aside from being invoked from time to time by policymakers and lawmakers, her story seems to have been instrumentalized by politics, at best, and ignored from the perspective of justice, no less. At this time, even as we hear about the death penalty being scheduled, one also wonders if it may take place at all – the question of justice still remains unanswered.

What is justice?

In simple terms, justice refers to giving one one’s due.

When a crime happens, or an incident of violence unfolds, a person’s agency, right to life and related rights, and their freedom to lead life to their full potential are affected. Their sense of control is taken away, and their resources are deployed in healing from and repairing the damage caused by such violence.

Justice, then, is an attempt to give them their due so that those resources – be they personal or property – be used for their achievement of their full potential, while the law enforcement mechanisms in operation would cater to their needs by making the perpetrator pay, either through monetary means or through action, or by facing penal consequences.

Justice takes various forms.

Two of these are: restorative justice, which aims to put the victim / survivor in as close to a position as they were in before such violence / crime happened; penal or retributive justice, which aims to penalize the perpetrator for their misconduct.

Regardless, when it comes to a crime like rape (and terribly brutal, at that), one really wonders what justice should truly look like: is it ever going to bring closure to those that hurt from the crime that claimed innocent lives?

A long-term solution

A pertinent question that comes to light in this reflection is whether the amendment of a law for a more robust rendering of justice is really all that change needed. Is a tighter penal consequence the definitive ingredient that makes a difference? Even as the perpetrators stand readied for the gallows, one wonders if a punitive, penalty-driven, retributive justice is really a wholesome solution to the larger problem at all.

Admittedly some may argue that those directly affected by the crime have the freedom to frame what justice looks like for them – but my question is to the larger, indirectly affected community of people: the very ones whose inertia and apathy encourage and enable such crime.

Should we re-look the death penalty?

In my salad days as a law student, I remember a vociferous argument in class about the value of the death penalty. Some championed it as having a deterrent effect. Some suggested that a heinous crime simply allowed room for a heinous consequence and that it was all in the math of it. Most of these arguments continue to abound. I may be wrong, but I reckon that the idea that a person who committed a heinous crime being made to face the worst “fate” imaginable through the implementation of a legal provision must seem like reclaiming control and power after losing it to the crime itself.

But here’s something to think about: what if we spend time looking around at the enabling environment that allowed this crime to happen in the first place, what if we invest in speaking to those very elements that fostered the crime and enabled it to take place, and then helped build futures that are free of such crime? Admittedly idealistic – no denying there – this can still make a difference.

Think about it. If the death penalty was a deterrent, crime would have stopped the day the first offender died at the gallows.

Image source: YouTube

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Vaginal Health & Reproductive Health - योनि का स्वास्थ्य एवं प्रजनन स्वास्थ्य (in Hindi)

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