Vol. 10, Issue 2, Part A (2024)

Abstract
India today is torn between a constant debate over whether the four men convicted for gang-raping and murder (eventual death) in the infamous Nirbhaya case in December of 2012, should be sent to the gallows or not. The frequency & rampancy of sexual violence, the cleavages within the criminal justice system, and its failure to check the cycle has often led to outcry for harsher punishments. A significant majority of the population, also the family of the victim find satisfaction in knowing that justice will be served, that the perpetrators will pay in the same way the victim did — with their lives. Setting aside the retributive undertones in this understanding of justice, we are confronted with a more important question: is death penalty a deterrent to rape? Does it do anything to reduce the frequency of these crimes? Or is it the handy tool at the disposal of a State with vested interests of the courts and politicians to capitalize on the inexorable pain of the family of the victims and make the case a matter of nation’s honour giving false hope to the citizens that the harshest punishment will prevent any such incidents in the future? Awarding capital punishments is the easiest alternative available, which helps the State mask their incompetence and shortcomings on several levels. The shortcomings in the state policy and action for protection of women and children, the incompetence of the police to act, file a charge-sheet and take action and the short coming in the other executive authorities to implement the laws. The motive of the judiciary should be to give justice to the victim while setting an example for the entire society to bring a positive change, not to satisfy the feeling of revenge of the victim. Because if the punishment is given with a feeling of revenge the actual underlying issues that are perpetuating endemic violence against women are left unaddressed.