Will hanging rapists stop rape cases?

AUTHOR: Robin Sharma

2^nd Year, B.A. LL.B.

Student at Indore Institute of Law, Indore.

EDITOR: Kaushik Das

Student at National Law University Odisha, Cuttack, Odisha.

After the increment in rape cases, the whole population of India is demanding for the hanging of rapists. Even in the Parliament honorable members of Rajya Sabha have demanded for lynching of the accused, in particular the Rajya Sabha member Jaya Bachchan did so in full public view in the session of the house. This raises a question that will incidents of rape cases in India start falling less if perpetrators(accused) are allowed to be lynched instantly by mobs? Such comments may help release the collective frustration of an outraged society and satiate the anger, but it unwillingly also encourages us to disrespect law. Social media is filled with statuses asking the rapists in the Hyderabad case to be hanged. Such outrage though also stops us from asking the real solution of the problem.

What is the punishment for rape in India:

• Indian Penal Code (IPC in short) Section 376 lays down the punishment for the offence of rape.

• The punishment is not to be less than seven years but which may be for life or for a term extending up to ten years.

• For cases involving Gang rape and authority figures (rape by police authority or any public servant)- 10 years has been the stipulated time.

After the December 2012 Nirbhaya rape case, the Criminal Law (Amendment) Act, 2013 added new categories of offences regarding violence against women and girls and made punishment more stringent, including death penalty for repeat offenders. After the Kathua rape case in 2018, further amendments in the provisions for punishment for raping minors took place.

Despite these changes to the law, however, India is a country that is reluctant to carry out the death penalty. It is currently prescribed only for the rarest of the rare cases and the interpretation of which is left to the court. In records, the last convicted rapist to be hanged was in 2004.

Severity of the punishment - Deter the system from handling out conviction:

The severity of the punishment meant many of the accused walk free due to "insufficient evidence" and because there is no option of a less harsh sentence. It is easy to convict an accused whose punishment is less severe, for instance, it is easy to convict a person with the punishment of 5-7 years imprisonment than a person with the punishment of the death penalty.

Why it is difficult to hang a rapist in India?

 In India there are many cases that are unrecorded, i.e., the aggrieved party has not even complained of any incident. In most cases, the perpetrators are mostly known to the victims and their guardians, who may decide to not report the crime in guilt of "sending a person they know to the gallows". According to the most recent data on the subject matter of rape released by the National Crime Records Bureau (NCRB), as many as 32,559 rapes were reported in India in 2017 and in 93.1% of the cases the accused were known to the victims.

Also, victims have to fight the cases for a long time as in cases of the death penalty, those convicted have many chances to appeal against their sentence. At last, they also have the chance to appeal to the President for pardoning the death penalty. The best example of this is the Nirbhaya case, in which the men convicted of rape of a medical student who died of her injuries in December 2012 are still appealing against the death penalties handed out by a fast track trial court in September 2013. This large number of provisions for appeal against the death penalty is one of the reasons in delaying the handling of conviction. The conviction rate of people arrested for rape remains stuck around 25%.

Surety of Punishment should be greater than Severity of Punishment.      

Today Perpetrators or any other accused have no fear of punishment due to improper handling of conviction. In case an outlook for severe punishment is there then they are freer as they know that the process would be so long and also there is no assurance of their death penalty. This we have seen in the Nirbhaya case. Because of this reason rather than convict an accused with severe punishment, the court should make a punishment that is assured and to is given to the accused as soon as possible without any unnecessary delay. So that there will be a fear in minds of perpetrators that they have to be behind the bars for a large number of years. This may restrain them from committing a crime.

Justice JS Verma Committee and Law Commission both came out against the death penalty.

Conclusion

So far, we have seen how it is difficult and time taking to take a perpetrator to the gallows. Till the rapist of one case be hanged, there are many rapists born out behind them. Therefore, there must be some other solution to this problem. We need to shift our outrage towards systematic solutions and addressing the root causes of rape culture that exists in the society. It is easier for the government to amend laws and bring harsher punishments, but harder to do such things which will make actual difference.

Instead of demanding knee-jerk solutions from the government, we should demand-

• Gender Sensitization

• Structured education and communication about rape and rape laws in the country.

• Sensitization of police so that victims feel comfortable to report the crime.

• Better investigation so the conviction rate increases.

Plea: It is a humble request to all that the names and pictures of the victims are not posted on social media because it is against the law, and invasive to the privacy of the victim and their family. Apart from violating the law the sentiments of their family members are also affected.