India is increasingly handing out death penalty to rapists and most cases are stuck in court

On February 1, India may witness its first death penalty in five years as the four men convicted for the December 2012 rape and murder of Jyoti Singh, or ‘Nirbhaya’, are hanged as per a warrant issued by a Delhi sessions court. President Ram Nath Kovind had earlier rejected a mercy petition filed by one of the convicts.

India has carried out only four executions since 2004, the last having been in 2015. Three of the accused were convicted of terrorism while one was convicted for raping a minor, as IndiaSpend reported in August 2018.

The upcoming executions in a case that had outraged India may not reduce crime against women and may, in fact, create a spectacle that distracts the government from implementing real reforms that can improve prosecution of rape cases, experts say.

A national debate

In 2018, 186 convicts were awarded the death penalty – a 53% rise from 121 in 2017, according to Prison Statistics India 2018, the latest available, of the National Crime Records Bureau or NCRB.

In India, death penalty is awarded only in the “rarest of rare” cases, an option that courts have exercised under a range of statutes including those related to murder, terror, kidnapping with murder, rioting with murder, drug offences and murder with rape, data show.

More than 40% of those sentenced to death in 2018 and 52.9% in 2019 were convicted for cases that included sexual offences and murder, said Death Penalty India 2019, an annual report by the National Law University, New Delhi.

Death sentences are increasingly being meted out for cases involving sexual violence as a response to public anger and anxiety, experts told IndiaSpend. “It is a shortcut they have adopted to placate the concerns of the public,” said Vrinda Grover, senior lawyer and researcher, adding that it seemed that the states and the system do not want to make the fundamental changes that will actually bring down the graph of sexual violence.

In August 2019, India amended the Protection of Children from Sexual Offences Act, 2012, to allow death penalty for the rape of children younger than 12 years. In what was termed as “extrajudicial killings”, four men accused of raping a 27-year-old veterinary doctor in Hyderabad were shot dead by the police in December 2019 “when they tried to flee”. The Andhra Pradesh Legislative Assembly subsequently passed a bill to allow death sentence in rape cases.

There is no evidence to prove that the death penalty is a stronger deterrent than life imprisonment, according to the Law Commission of India’s 2015 report on death penalty.

Similar demands for harsher punishment for sexual violence were raised after the brutal gangrape of Jyoti Singh in Delhi in 2012, which led to a number of reforms and legislative changes including the Criminal Law (Amendment Act), 2013 that brought offences such as stalking, voyeurism, acid attacks and sexual harassment under its purview.

However, while the reforms improved reporting of rape, there has been little or no impact on arrests and convictions rates, IndiaSpend reported in August 2019 based on a February 2019 study. The conviction rate for rape had been on a steady decline since 2007 and reached a historic low of 18.9% in 2016 from 27% in 2006, the study observed.

There is clamour for harsher punishment when the victim is from the upper or middle class and the offenders are from the lower class, said Flavia Agnes, women rights lawyer and director of Majlis, an organisation that provides legal help for women. If the opposite is the case, there is no such outrage, she said.

Push for death penalty

As of December 31, 2019, India had 378 prisoners on death row, the NLU’s report said. Trial courts imposed 102 death sentences in 2019, a drop from 162 in the previous year, it added. More than half of the death sentences – 54 of 102 – awarded in 2019 were for murders involving sexual offences, the report noted. Of these, the victim was younger than 12 years in 40 cases.

Death sentences in cases of murder involving sexual offences increased in the past four years. In 2016, 57.1% death sentences were awarded for “murder simpliciter”– a simple murder – while 18% were for cases of murder with sexual offences. By 2019, the latter rose to 52.9%, the report said.

State High Courts and the Supreme Court confirmed 26 and 17 death sentences, respectively, in 2019, of which 17 or 65.3% and 11 or 57.1% were in cases involving sexual offences, data from the NLU’s report show.

Further, High Courts and the Supreme Court commuted 56 and seven death sentences, respectively, to life imprisonment that year, of which 15 or 26.7% and four or 64.7% were for cases involving sexual offences.

The national debates and calls for harsher punishments for sexual violence against women and children seem to have taken centre stage in the debate on capital punishment in India, said Anup Surendranath, executive director, Project 39A, a research project documenting death penalty convicts in India at NLU. He referred to two cases in 2019 which the Supreme Court, while confirming death sentences, cited in support of the 2019 amendments to the POCSO Act, though the crimes predated the amendments.

“To invoke this as a justification to give the death sentence is a gross violation of individual sentencing principles,” Surendranath said. “We also need to move beyond the notion that any punishment short of the death penalty amounts to ‘injustice’.”

Fast-track courts

While State Governments have been setting up fast-track courts to deliver swift justice, these have not made much difference. As of March 2019, India had 581 fast-track courts with approximately 590,000 pending cases, The Hindu reported in August 2019. Uttar Pradesh, India’s most populous state, had the most pending cases, while 56% of states and Union Territories –including Karnataka, Madhya Pradesh and Gujarat – had no fast-track courts.

One of the amendments that the Andhra Pradesh legislature passed included conclusion of the trial within 21 days – with seven days to complete the investigation and 14 days to complete the trial – as opposed to four months in the Criminal Law Amendment Act, 2013.

“Such reduction, and making the same mandatory, instead of ensuring successful prosecution, may result in a hastily-conducted haphazard investigation, or an incomplete chargesheet being submitted, or the accused being granted statutory bail – all of which will be detrimental to the interest of the victim and or the outcome of the case,” said Surendranath.

In 2019, the Supreme Court acquitted 10 people in three cases who were in jail for five years on the basis of questionable evidence. In one case, it ordered action against the investigating officer. In two other cases, it remitted the case back to the trial court for a fresh trial.

“To cast a responsibility on the overburdened and ill-equipped police to complete investigation within three weeks is bound to result in more acquittals,” said Surendranath.

The government must invest in training and sensitisation of the police so that they understand the nature of the crime and conduct the right kind of investigation, said Grover, adding that the prosecution must conduct a dignified trial. “But there is no work being done on any of these aspects,” she added. “We are either seeing an occasional conversation about death sentence or we are seeing a new form of instant justice like in Hyderabad. None of it is going to turn the cycle of violence.”

On-ground logistical problems include lack of enough forensic labs, and overburdened and understaffed fast-track courts, all of which point towards a lack of investment in the judiciary, said Grover.

As a result, conviction rates remain low. In 2018, a chargesheet was filed in 93.2% cases of rape and 94.3% cases of rape under the POCSO Act. However, only 27.2% cases of rape decided in 2018 ended in conviction as did 31.5% cases of rape under the POCSO Act, NCRB data show. Long delays persist too. In 2018, Indian courts completed trials in 17,313 cases while 138,642 cases of rape are pending – a rate of 88.7%.

Also, the focus on punishment comes at the cost of a focus on the victim. “To get conviction, you have to work with the victim and her family and give the family support,” said Agnes of Majlis.

As it is, rape victims rarely even report the crime – by one estimate, as many as 99.1% of the cases of sexual violence go unreported since the perprator is the husband. In most cases – 93.8% of rapes in 2018 – the offenders were known to the victim and 50% were the victims’ friends, family, neighbours or employers, NCRB data show. Apathy and foot-dragging of the law enforcement authorities and fear of retribution deter all but very few victims from registering cases.

This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.