Death penalty for rape: A counterproductive approach to justice

For effective rape law reforms, one must understand the majoritarian patriarchal order that the Bharatiya Nyaya Sanhita seeks to entrench.

The murder and rape of a resident doctor in R.G. Kar Medical College and Hospital in Kolkata on August 8/9 led to powerful protests by doctors, residents, interns, and nurses in Kolkata and other parts of the country. In an almost predictable template, rape and murder became a resource for doing competitive politics. We saw shocking images of violent “mobs” destroying a section of the hospital and disrupting peaceful protests. It has become the norm that every anti-rape protest is repressed and appropriated to fit into stabilised political scripts that acknowledge some cases of sexual violence and silence others.

Courts and investigative agencies are seized of the case, and the investigation was transferred to the CBI at the direction of the Calcutta High Court. The Supreme Court heard the matter suo motu to address the question of the safety of doctors in hospitals. It set up a national task force and directed that no coercive action should be taken against the protesting medics, while directing them to return to work.

In the outpouring of collective anger, grief, and shock, both online and offline, women posed serious questions about safety at the workplace, the liability of the state, and the conditions of testimony against violence. These demands compete with the mainstream demands for the death penalty, fast-track courts, and technologically smart solutions. Mainstream and party political outrage, which is now highly mediatised, however, does not seek to change the social, political, and legal toleration of sexual violence in a sustained and permanent way. The demand for the death penalty seeks to deflect public attention from serious feminist demands against sexual impunity.

Feminists have pointed out that it is not a paradox that the production of masculinist retribution against rape sits comfortably alongside the widespread toleration of rape in law, society, and the polity. Carceral populism, such as one creating a calendar for the death penalty, does not serve the ends of justice, but does exactly its opposite. A calendar for the death penalty becomes an occasion for deepening the majoritarian state by conserving sexual impunity.

Feminists and abolitionists have argued that capital punishment does not deter rape and murder. Rather, introducing the death penalty in rape law often puts victims at risk of murder. The death penalty is the primary response of a male state when the sexual contract between male citizens and the state in the regulation of majoritarian sexual governance is broken. The death penalty does not displace sexual impunity; rather, it entrenches it. And hence, the justification for the death penalty, a cruel and inhuman punishment supposedly limited to the “rarest of rare cases”, expands after each national protest against sexual violence.

More often than not, the demand for the death penalty is routinely asserted, especially in cases of “stranger rape” around which moral and sexual panic is produced. The rape accused is vilified as the bestial “other”, and carceral male energy activated to kill, lynch, or castrate. The trolling and censuring of lawyers representing rape accused marks majoritarian carceral cultures.

Feminist critique

The feminist critique of the death penalty developed after the first national campaign against rape in 1983. By the 1990s, a clear feminist position against the death penalty was adopted by the autonomous women’s movement. It emerged as a critique of the right wing’s demand for capital punishment, its moral policing, and against the idea that rape is worse than death. Feminists critiqued this politics, which produced an optics of horror to cause sexual panic. Sexual panic is productive of lynch mentalities, voyeurism, and censorship, which in turn strengthens majoritarian, partisan, and communal state practices. Therefore, the premature release and felicitation of those convicted of gang rape and mass murder in the Bilkis Bano case (Gujarat 2002) did not contradict majoritarian carceral populism. And also why such impunity did not provoke national-level protests, as during 2012-13.

Protest posters being painted in the wake of the Nirbhaya case, in New Delhi on December 16, 2014. | Photo Credit: Meeta Ahlawat

The stance against the death penalty was clearly reiterated before the Justice J.S. Verma Committee constituted in the aftermath of the gang rape and death of a woman in a moving bus in Delhi. The committee acknowledged that “it would be a regressive step to introduce death penalty for rape even where such punishment is restricted to the rarest of rare cases”. And that “the deterrent effect of death penalty on serious crimes is actually a myth”. Instead, the committee increased punishments such as life sentence to mean natural life, especially for aggravated sexual violence, making that its response to the national outrage. This too has not deterred rape.

Contrary to the Verma Committee recommendations, the death penalty was introduced in the rape law in the Bharatiya Nyaya Sanhita (BNS), implemented on July 1, 2024. The BNS set aside the feminist and abolitionist view on the rape law. The BNS was justified under the sign of decolonisation and gender justice. Rape was now included in a chapter on crimes against women and children by placing it at the beginning of the code. This was done to indicate the primacy given to violence against women. This exceptionalised rape, and other crimes against women. And the mass renumbering of offences created confusion by design. It did not create a culture of deterrence.

The BNS did not build on any comprehensive study of the impact of the 2013 criminal law amendments—such doctrinal or empirical studies sadly do not exist, apart from a few outstanding exceptions. Besides, all judges are yet to learn up the 2013 amendments, as a case from Howrah showed. In 2023, in Sucharita Santra v. State of W.B. (2023 SCC OnLine Cal 369), the Calcutta High Court noted that the fast-track court of Howrah had wrongly held that “penetration of finger into the vagina would constitute only an offence of attempt to rape”. It also pointed out that the fast-track court had failed to “appreciate and acknowledge” the 2013 amendment. The prosecutor too had not pressed the point that this offence was now rape. Calling this “a miscarriage of justice” and “an abuse of process of the court/law”, the case of the 40-year-old survivor filed in 2015 was sent back for framing the charges as rape, and not its attempt. This case exemplifies that it took around eight years for the correct application of charge.

Similarly, often highly publicised cases are transferred to the CBI, or special investigation teams (SITs) are formed. However, there are no studies that review the methods, biases, and outcomes of different agencies. Consider Sr. Sephy v. CBI & Ors (2023/DHC/000848, https://indiankanoon.org/doc/52519361/) decided on February 7, 2023. In this case, a woman accused of murder was forced to take a “virginity test”. When the medical test did not give a finding of her being “habituated to sex”, the CBI, in order to save face, claimed that she had undergone plastic surgery to restore her hymen and hence was lying about her past sexual history. The CBI’s outrageous claim of a hymenoplasty did not stand in court.

Justice Swarana Kanta Sharma held that the use of the two-finger test to conduct the so-called virginity test was unconstitutional and illegal. This points to the varieties of misogynistic bias that manifests in different investigating agencies. Should there then be a demand for a gender or safety audit of special agencies of the state, such as the NIA, the ED, the CBI, and the special forces in the police or Army, which have wide powers of investigation, arrest, detention, and custody? How do such police powers make women further vulnerable both to shoddy and biased investigations or pose the threat of violence when women are held in custody?

Exceptionalising sexual violence lowers constitutional and civil liberty standards such as the right not to be handcuffed. With the new codes, those accused of rape and other crimes against women can now be handcuffed.

The policy of bulldozing houses of accused persons, especially houses of Muslims, which renders the elderly, women, and children homeless and destitute, is not recognised as a crime against the elderly, women, or children. This custodial violence is an intolerable form of majoritarian carceral populism.

We must also ask how dehumanising accused persons helps the victims. Surely, a dehumanised criminal legal system necessarily dehumanises the victims of violence too. The dehumanisation of legal procedure is instantiated under the sign of forensics when clothes and other personal items are seized as evidence from victims. The state does not provide rape victims underclothes, sanitary napkins, scarfs, spectacles, socks, shoes, and outerwear after seizing these for forensic analysis. Despite the guidelines in Delhi Commission for Women v. Delhi Police (2019), which states that clean clothing and shower/hygiene items should be made available for victims’ use after medico-legal examination, a comprehensive clothes kit is not provided to rape survivors in hospitals or even police stations. Rape survivors may borrow clothes from their support persons; or they may be given dirty blankets from police stations or left to fend for themselves in hospital gowns.

Dehumanising women’s bodies

The BNS and its allied codes, while scripting an exceptional status to them, are indifferent to the manifold forms of dehumanisation of women’s bodies in the field of criminal law. The institutions of criminal law that do not provide clothes to rape survivors while collecting intimate bodily samples direct institutional violence at women’s bodies.

The cunning of law reform has been to fold in feminist critique while expanding the patriarchal legal order. Police personnel arrive ahead of a protest in Kolkata, on August 30. | Photo Credit: PTI

The demand that the state provide a clothes kit and other personal items to rape survivors when it seizes their clothes is not a populist demand. It is a demand that belongs to the realm of dignity rather than carceral populism. Why are there no public campaigns against such legal process that strips rape victims and makes them feel unsafe? It is not a popular demand because it is not as muscular as carceral populism is. It is not a popular demand because protests will have to demand that the state create a budget and provide funds for rape survivors. Nor is it a matter for suo motu governance, where courts name this practice as a form of custodial stripping that is both unconstitutional and derogatory of all women.

The BNS expands criminalisation, but it does not outlaw the physical strip search that women and transgender prisoners experience when taken for court visits from prison. To access the court, an undertrial prisoner seeking bail may experience strip search. Law reformers know that the number of times prisoners appear in court and their matters are adjourned equals the number of strip searches. And that there are inadequate facilities for menstruating, lactating, or pregnant women in court or police lock-ups.

Law reform measures that challenged impunity from the point of view of oppressed classes, genders, and castes did not inspire the authors of the BNS. In the Hathras atrocity (September 2020), we saw how prosecuting rape as atrocity was met with state repression. In practice, law institutionalises bias against Dalit and Adivasi women. Violence, intimidation, and legal technicalities are used to weaken cases, and evidence is destroyed or made to disappear. The law on atrocity recognises institutionalised bias and, therefore, puts the onus on the state to prevent and redress atrocities. However, outrage against rape as atrocity is limited and repressed since such outrage critiques how the state, the law, and society conserves caste impunity.

Cunning of law reform

Sexual impunity is entrenched further with the expansion of state impunity. The cunning of law reform has been to fold in feminist critique while expanding the patriarchal legal order. It is not surprising then that the drafters of the BNS ignored one of the most important recommendations made by the Verma Committee—the addition of Section 376F, which defines breach of command responsibility and allows for prosecution of public servants who fail to command the police or armed forces to take reasonable measures to prevent or repress the commission of sexual violence. The BNS model of decolonisation ignores this provision even though it was drafted and passed during the mass sexual violence in Manipur.

The BNS does not provide protection from the prolific human rights violations of those wrongfully prosecuted. Take the example of those who choose their partners. Rape, kidnapping, and theft laws are often used to criminalise love affairs. The age of consent stands at 18 years of age, without a proximity clause. Often, women are arrested and also put in prison for choosing their partners across caste or religion. It is an active not knowing that institutes sexual impunity, when love is made to look like rape, and rape as love.

The discourse on “love jihad” and the anti-conversion laws has led to increasing arrests of consenting couples, their family, friends, and even Muslim and Christian priests. Although adults are legally allowed to choose their partners, the BNS model of decolonisation would mean that such consenting couples will now be handcuffed, subjected to longer periods of remand without sufficient safeguards against custodial torture, and imprisoned for longer durations. In this case, decolonisation means the reassertion of caste order and the criminalisation of interfaith marriages by regulating consensual sexuality. Increasingly, women are being prosecuted for perjury, in rape cases, especially when “compromise” fails.

Highlights

• The new Bharatiya Nyaya Sanhita criminal code in India introduces the death penalty for rape under the guise of deterrence and gender justice, but feminist critiques argue this carceral approach actually entrenches sexual impunity rather than challenging it.
• By exceptionalising rape and expanding criminalisation, the code aligns with majoritarian politics while ignoring key issues like police bias, dehumanising treatment of survivors, and systemic discrimination against marginalised groups.
• Real reform requires addressing institutionalised rape culture and state violence, not simply harsher punishments that often backfire against the most vulnerable.

The question of sexual violence now has to be read in relation to the BNS model of decolonisation, which aims to establish a new socio-legal order. Such a legal order now codifies the shifts between law, state, and society instantiated by the majoritarian political order. For example, replacing sedition with a crime against “anti-nationals” re-forms the legal order and further consolidates political (dis)order. The colonial law on sedition is now replaced by an offence that seeks to criminalise “acts engendering acts endangering sovereignty, unity and integrity of India”, by deleting the phrase “disaffection towards the Government established by law in India”. It marks a shift from “rajdroh” to “deshdroh” as a necessary condition for conserving a majoritarian political order.

This incremental re-forming of law has been “tested” by a spate of wrongful prosecutions under the sedition and terror laws directed at activists, students, and journalists, especially Muslims and Christians, in the past decade. This incremental shift which used various provisions of the Indian Penal Code to mark the shift from “rajdroh” to “deshdroh” is sought to be completed by the BNS. In other words, those who protest against rape or other forms of sexual impunity may now be named as “anti-national” under such draconian laws. Without serious critique, dissent, and difference, however, there can be no transformation of rape cultures that are institutionalised in prolific ways. The demands made of the state, be this for new laws or law reform, must then first understand the kind of majoritarian patriarchal order that the BNS seeks to entrench.

Pratiksha Baxi, Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University, Delhi, is a feminist sociologist. She is the author of Public Secrets of Law: Rape Trials in India (OUP).