Bengal chief minister Mamata Banerjee’s government is all set to table a bill for capital punishment to rapists in a special session of the state Assembly this week.
Ever since the rape and murder of a young doctor at the state-run RG Kar Medical College and Hospital sparked protests not seen in recent memory in Calcutta, the Trinamul – from general secretary Avishek Banerjee to chief minister Mamata – has spoken in one voice, demanding phanshi [the noose] for rapists.
While the Trinamul’s posturing is aimed at the anger in the streets, experts said it is not a solution, and does not bring down such crimes.
"We must ask ourselves, what kind of society are we building?" said Arghya Sengupta, research director at the Vidhi Centre for Legal Policy, a legal think tank. “When judges know that a guilty verdict automatically means death, they will hesitate more, fearing an irreversible mistake.”
The Mamata Banerjee government’s bill reportedly proposes to treat all rape cases on a par with murder; minimum punishment would be a life term.
Maharashtra and Andhra Pradesh had earlier framed bills to provide death penalty for all rape and gang-rape cases, but though they were passed in the state legislatures they have not got the President's assent. The introduction of the life term option in Bengal’s bill is reportedly to avoid meeting a similar fate.
“I will tell the Speaker to call the special session and in 10 days the law to ensure capital punishment for rapists. We will send the bill to the governor,” Mamata said on Wednesday. “I know he [the governor] won’t do anything. But he will have to sign it. Or else women will sit in front of the Raj Bhawan. This time he won’t be able to send it to the President for consideration.”
Sengupta highlighted the importance of getting legislation right for it to be effective.
"We need thoughtful, systemic reforms, not knee-jerk reactions. Imposing laws without considering the nuances of each case can lead to miscarriages of justice," he pointed out.
Dr Panchajanya Ghatak, a forensic psychiatrist at the Rampton High Secure Hospital in the UK, agreed.
“This rush to legislate shows a disturbing trend in India’s approach to crime, particularly crimes against women. The death penalty, often treated as a deterrent, has been proven ineffective time and again,” said Ghatak, who treats people with mental health problems who are in prison.
"Sexual offences are a global issue and developed countries have long understood that systemic, clinical approaches are necessary to address it,” he said.
Legal experts said the bill, the full details of which are not yet in the public domain, is contentious.
“If the bill is passed, it will be constitutionally dubious. Unconstitutional to the core. It leaves no leeway for discretion.” said Colin Gonsalves, senior advocate, Supreme Court, and founder of the Human Rights Law Network.
Gonsalves represented Afzal Guru and Dhananjoy Chatterjee at the Supreme Court. Guru was hanged in 2013 for the 2001 Parliament attack and Chatterjee was hanged in 2004 for the rape and murder of a schoolgirl in Calcutta.
"Capital punishment is not justice. It’s society’s surrender to savagery," Gonsalves said.
A criminal lawyer from the Calcutta high court, who requested anonymity, said the government was avoiding the real issues of law and order and instead trying to show that it is doing something.
The lawyer pointed out that the provision of the death penalty already exists in rape-murders if the crime is a rarest of rare case. To make the death sentence mandatory is not legally tenable, the lawyer pointed out, adding that in effect it means asking for at least life terms for all rapes.
“Legally, this bill would require the President’s assent, but even if it passes, it doesn’t make much sense,” the lawyer said. “We’ve had capital punishment before, and rapes still happen.”
