Gender Dimensions of the Death Penalty in India

Abstract

Feminist scholars have often critiqued law as reflective of a male rather than a neutral point of view. They look beneath the surface of facially neutral laws to unearth the gendered assumptions on which the law is based. These assumptions are challenged because traditionally law has excluded the varied experiences of diverse communities, including women, in fashioning legal norms. Such exclusion in the construction of legal norms calls to question law’s claims to legitimacy and it’s supposed attributes of equality and universality. In this paper I look at one such area where the law has failed to take into account women’s experiential learnings in fashioning legal doctrines. My focus is on the Indian Supreme Court’s death penalty jurisprudence; and I argue that the Court’s exposition on the subject routinely devalues and discounts the forms and sites of violence most common to women’s experiences. I argue that in determining what constitutes “rarest of rare” cases the Court has privileged violence on account of property, violence in the public sphere, and violence for power, over violence within the family or in intimate settings, or those forms of violence that women are more commonly victims of. By not valuing violence against women as severely as those forms and sites of violence that are more reflective of the male worldview, the Court creates an arbitrary distinction that derives justification from discriminatory social norms that legitimate violence against women in the first place. This does not mean that the death penalty should necessarily be extended to cover the latter situations, but that this adds an additional element to the already arbitrary regime of awarding death penalty.