A Quest for “Justice” in Capital Punishment: A Socio-Legal Study of the Nirbhaya Gangrape Case

Abstract

The December 16, 2012 gang rape case in India’s capital ignited fierce discussion on women’s rights, safety measures as well as the punishment for the rapists. A major question stemming from this case and elaborated in this paper is: is capital punishment for a rapist an effective measure, as a form of “justice” for the victim? The paper concludes that capital punishment should be abolished even for gruesome crimes like rape and it further raises the question whether capital punishment can serve as a reform tool for the existing and oftentimes dysfunctional criminal system in India. Through a thorough analysis of Mukesh & Another Vs State of NCT of Delhi and others (known as the Nirbhaya gang rape case), the paper explores capital punishment for the rapist from a socio-legal and cultural perspective. The case particularly becomes important as, along with other issues, it is concerned with the question of rights of the victim vis-à-vis the rights of the offender. In other words, the paper delves deeper into the conflict between the victims’ interests and the right of the offender in the justice system by examining who is responsible for what and to what extent. Taking a human rights approach, the paper examines the human rights jurisprudence in India as well as in international laws. Further, it maps the social and historical perspective revolving around rape victimhood and gender along with arguments that have been predominant for and against capital punishment, particularly for rapists in an Indian context.