On the 2nd of December, veteran actress and current Rajya Sabha MP, Jaya
Bacchan declared angrily amidst a chorus of shouting politicians, “These
types of people need to be brought out in public and lynched.
” She was
referring to the ones accused of having committed the heinous rape of a
26-year-old veterinarian in Telangana recently.
Her statement and fiery declaration has the people of the country quite divided;
with it having received both its fair share of support and criticism. In fact,
ever since the Nirbhaya incident, the demand for death penalty to rapists is
growing among the public.
However, contrary to the popular belief of the masses, the death penalty does
not, in fact, lead to a paradigm of more freedom or safety for women and here’s
The deterrent effect of the death penalty is a myth
Both the Law Commission in its 262nd report on the Death Penalty and the Justice
J.S. Verma Committee acknowledge that the deterrence that is attached to the
death penalty is inconclusive at best. Perhaps the inefficiency of the penalty
as a deterrent can be best explained by understanding the psyche of a rapist.
As found by American psychologist JS Caroll’s study most heinous crime is
motivated by the surge of emotions in an individual; in such instances, the
emotions usually overpower the cognitive abilities of the individual. This very
finding is antithetical to an integral part of efficient deterrence; the fact
that the target of such deterrence must be one of rational mind. If, at the time
of the crime, the perpetrator loses her cognitive ability of being able to think
rationally, the fear attached to the death penalty does not subsist and the
perpetrator goes ahead and commits the crime for immediate gratification.
The Death penalty may have the reverse effect
In fact, even if it was proved that the death penalty did in fact have deterrent
value, it may have a negative impact on the victim.
The reason for this is two-fold:
- Firstly, it may result in the perpetrator making sure that the
victim is dead so as to ensure that he does not face a chance of being hung,
thereby, resulting in a spike in the number of victims killed by their
- Secondly, according to the statistics provided by the National Crimes
Record Bureau of all the cases of 2016, 94.6% were caused by family members
of the victim.
This reduces the chances of such crimes even getting reported as the
threat of the death penalty may deter the family of the victim to subject a
relative to such a fate.
The egregious ways of the Retributive Justice System
Once it is understood that the call for the death of rapists is not beneficial
to the victims; whether it has deterrent value or not, the clear conclusion is
that this call, is not one that can bring reform. However, it still begs the
question, of whether or not it can avenge the injustice the victim was subject
It was observed quite rightly by Justice Hewart, in what has now become a
universal legal principle the justice must not only be done, but seen to be
done. In this regard, the simple incarceration of these perpetrators, is for
many not representatives of the principles of equity adopted by law.
However, this system of retribution is not without its perils. Not only is the
theory of retributive justice found by the Judiciary to be thoroughly outdated,
the Law Commission of the country in its report also feels that there has been
no uniformity in precedents and that this brings about the subjectivity of the
judge in awarding the penalty despite the guidelines issued.
Furthermore, research also suggests that close to 74.1% of the individuals under
death row, are from economically vulnerable backgrounds, meaning, that they do
not have access to quality legal counsel which may be found to be a contributing
factor as to why they find themselves facing the noose.
- 262 nd report - http://lawcommissionofindia.nic.in/reports/Report262.pdf
- Justice J.S. Verma Committee - https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf
- JS Caroll’s study - https://psycnet.apa.org/record/1980-09877-001
- National Crimes Record Bureau - http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20-%202016%20Complete%20PDF%20291117.pdf
- Justice Hewart - https://issuu.com/js-ror/docs/1924_rvsussexjustices
- found by the Judiciary - https://indiankanoon.org/doc/1309719/