I was in a very disturbed state the entire day when I read about this one particular news article regarding the brutal rape of a 3 year old in Mumbai. Although it is not very seldom to find a rape article on the newspaper, I could not get it off my mind that there exists even a remote possibility where a person could even consider raping a child, and that made me think about how I could change the way our society is functioning so that sickening events like these could be deterred.
It drew my attention to a particular form of punishment prevalent in many number of countries, of course death penalty. When it comes to a country like India we have the rarest of the rare case system to curb crimes and to maintain law and order. Although the system makes no sense to me at all as the basis on which the doctrine operates is the amount of media and people attention a particular case gets, only in that case can a death penalty be given. What I question is, the amount of media attention and people attention a case might get can differ form state to state and can also differ from regions having the impact of urbanisation, civilisation. So how do we evaluate if a case is to fall within the rarest of the rare case doctrine or not? There have been multiple cases of brutal rapes having facts similar to Nirbhaya or even worse than Nirbhaya. Not only is the Rarest of the rare case doctrine inefficient in curbing crimes at any extent it is even unfair to the accused who get death penalties as compared to those who don’t, who have committed the same act. The only difference between the two being the latter committed it in a state not too progressive or developed enough for people to get on the streets with signs in their hands protesting against such barbarism .
To quote Manu ‘If we don’t have danda as punishment for wrongdoings, the strong will roast the weak like a fish on a spit’ which is exactly what is taking place in our country. It is high time we realise that inflicting fear in the minds of criminals is the only way to go by that can only be done by the implementation of capital punishment. One thing which I absolutely disapprove of is calling rapists mentally unstable. That they are’nt themselves when they commit the act so they should get a chance of reformation. Let us accept this premise for a minute, even if we consider that their sexual desires take over their part of the brain that understands their social expectations, on what basis can we guarantee that the criminal is going to reform? Why do we risk the lives of a thousand innocents just so there exists a faint sense of possibility that the criminal may reform? Noteworthy point is that statistics also do not play out in their favour.
There have been arguments advanced by scholars disfavouring death penalty, stating in remotest of the remote villages of India misogyny is so prevalent that they feel it is okay to rape a woman. So are’nt these people to be excused and does’nt it justify them giving a chance of reformation?
To understand this perspective we must first realise how these morals and ethics that are imparted in us stem from? Did these morals stem only from parental guidance on societal expectations and wordly knowledge? The morality theory of law gives a much more broader perspective. Specifically moral subjectivism entails that right and wrong is determined by what you think or feel is right or wrong. Let me draw the readers attention to the utilitarian theory as well, how did we realise what was right and wrong? Utilitarian states that a action that promotes the greatest happiness of the greatest number is to be the guiding principle of conduct. Where the majority of us felt that the action was wrong it became a guiding principle of conduct and it is condemned till date. The realisation that the action was wrong did not stem from any parental guidance or societal expectation, it stemmed from within us.
We all are born with a certain standard or morals and ethics and principles. Even a dog knows to patiently wait for food and not resort to barbarism. The ability to suppress sexual desires is what make us an ideal human being. To quote Sigmund Freud the instant biological and physiological urges to be fulfilled in a righteous manner requires the protection of ones personality and any deviation from the normal course would taint ones personality. Without creating fear in the minds of people, people will resort to such barbarism overlooking societal values and the trauma a victim has to go through specifically in a country like India.