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Sexual Violence and the Death Penalty
The judgment in the 16 December Delhi rape case imposed the death penalty based upon the depravity of the offence and the demands of the “collective conscience of society”. On the other hand, in the Naroda Patiya judgment in the case of the rapes and murders of Muslims in this part of Gujarat, the court held that it cannot go down the route of giving the death penalty but preferred a graded system of life imprisonment based upon the degree of culpability of the different offenders. The latter is a new way of thinking about the logic of punishment. Justice Jyotsna Yagnik rejects the retributive logic and forces us to explore deeper questions about unthinkable violence, responsibility and punishment.
Impunity has been the order of the day when it comes to violent crimes against women in India. While cruelty enacted on the bodies of women is quotidian in its nature, what is exceptional is when this violence is brought before the court and the court recognises this violence and accounts for it. The judiciary has failed in numerous cases to ensure that those responsible for horrific crimes against women are brought to account. Emblematic of this deep and tragic failure is the Mathura rape case where the Supreme Court (SC) refused to even acknowledge the sexual violence inflicted on women’s bodies.
In the light of this history, the judgment in the Delhi rape (which occurred on 16 December 2012) case was exceptional in counteracting this impunity for crimes against women by finding the accused guilty.1 How rare this conviction is emerges from the fact that the judge in the case, justice Yogesh Khanna, had only two conviction orders in the 203 cases of rape he had heard from 1 January 2009 to the day of the Delhi judgment.2
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