I am fundamentally opposed to the death penalty. I am also generally opposed to any absolute rules. The exception neither proves nor disproves the rule but forces us to examine each situation individually.

And here I make an exception: the perpetrators of the recent Delhi gang rape and murder should be sentenced to death.

The most convincing argument against the death penalty is that the justice system is fallible. Evidence lies on a sliding scale. Proof in establishing culpability is not as simple as proofs in mathematics. There is a chance that an innocent is sent to the gallows. Hence, the legal maxim “it is better ten guilty men go free than one innocent man is convicted”. Thus, the burden of proof falls upon the prosecution.

Even in relatively infallible systems there are troubling instances of miscarriage of justice. In Britain there were the Birmingham Six and Guildford Four – Irish men convicted of bombing a pub with less than satisfactory evidence, who had their conviction later quashed. However, even in hopelessly fallible systems sometimes the evidence can be undeniably infallible, as in this instance.

An argument against the death penalty which I never found persuasive was that life imprisonment was a fate worse than death. That prolonged remorse would be far more excruciating for the convicted than instant death.

Rubbish.

There is no punishment more troubling to the mind than the thought of being marched helplessly to the electric chair with only one outcome. Death may be a certainty for all but one tolerates this certainty because there remains uncertainty in its precise timing. Even murderers like to live, which is why in plea bargains in the US, immediate confession and life imprisonment without parole are often traded for the electric chair.

If a criminal is not deterred by the noose then he is hardly going to be deterred by the prospect of spending a lifetime in Tihar jail, clothed and fed, no matter how rat-infested the place might be. And what solace must he receive when he sees that in India during life imprisonment one can visit their farmhouse with the blessings of the chief minister of Delhi; and after serving life one can contest elections presumably because murder is not thought to be a sufficient blemish on one’s character to disqualify from public service.

As for karma, the criminal meeting his maker, reincarnating as a cockroach, nine circles of hell and other metaphysical nonsense, I wouldn’t bet even the sinking rupee on them happening.

There have been a plethora of words to describe this gang rape/murder: evil, barbaric, inhuman, callous, etc. All are true even if they insufficiently describe the depravity of the attack. To the list I will add two: “audacity” and “contempt”.

Much can be gleaned by the location and timing of a crime. Whilst the victim’s suffering is not diminished if attacked in the middle of a bazaar at noon rather than in an isolated alley at 2 am, the former tells us a lot about the rule of law and the criminal’s regard both for the law and for the general public.

Let’s recap. The attack happened in a vehicle used for public transport, easily traceable to the offenders, in one of New Delhi’s cultural hubs at one of the liveliest times in the evening, through some of the busiest roads in the capital which are littered with men in khaki doing god knows what. What does this incomprehensible audacity of the assailants say? It tells us that the six men had nothing but utter contempt for the law and pure and utter disdain for the denizens of India’s most soulless city.

They threw caution to the wind because they were certain they would get away with murder. After treating the victim like carcass they were too lazy to ensure that victim and her friend had died. They had no fear of the law not because they were well-connected but because they knew that the law in India is the rarest of rarest asses. And they might have been correct in their assessment were it not for the unprecedented public outcry.

This ass was not built overnight. It arose from systematic abuse by the affluent and persons in high office. That a drunken Bollywood actor can mow over a few random people, with the remorse one normally reserves for accidently running over a hedgehog, and rest assured that not only will he not be prosecuted but people will still flock to see his movies, shows that the pathology has gone beyond the enforcers of law.

Indeed it is aided, particularly in Delhi, by an unprecedented level of a bystander effect, by a population paralyzed by ennui and too shallow to worry about anything other than its narrow self-interest (recall the Jessica Lall murder). Who will fear such people?

But that does not fully explain why a fruit vendor, a person who would not normally look a “memsahib” directly in the eye, would feel so emboldened to commit an act so heinous so near publically.

The Indian legal system has the sophistication of the Magna Carta, the ambitions of Anglo-American common law, and machinery for enforcement that remains parochial, i.e. useless. It retains the technicalities of modern law, intended to push the prosecution to obtaining higher standards of evidence, but neither the will nor infrastructure to achieving the high standards of evidence. The technicalities thus prevail.

It’s like building a skyscraper on sand and of sand. The project never gets off the ground. Cases go on forever (if fast track with intense international interest in an open and shut case takes nine months to reach a verdict god knows what business as usual is like), or reach courts only to be merrily dismissed by judges or clever lawyers who use their deep knowledge of the law to uncover inevitable weaknesses in the prosecution’s lazy case. Would be criminals know this.

The law is owned by the rich and treated contemptuously by the not so rich, rescued occasionally by the media when it feels so obliged. Could there be a more damning indictment?

Well yes. Curiously, the pot-bellied, stick-wielding, khaki-clad police are only too keen to enforce whatever law they can enforce, and these enforceable elements of law tend to be both abundant and useless, ranging from various permutations in which traffic regulations can be violated to outdated moral policing of young couples, lest they get too close to one another in a public park. There are enough useless statutes in the Indian legal system to keep the police in full time occupation without having to attend to a single genuine crime.

Thus is rendered the worst blend of all possible donkeys: law that is both ineffectual and a bully, although not ineffectual at bullying, with the pretense of having all plausible criminal enterprises covered. It fails the most law-abiding citizens twice. Given this, is it surprising that incidence of rape in India is so high?

Sending these men to the gallows may not stem the tide of violence against women in India, not without a comprehensive reform of law enforcement. It may not reduce inherent evil. But for many men who roam the streets of Delhi and other cities on the cusp of committing a similar crime, it will reduce their audaciousness and their contempt for the law, as the assailants displayed on the bus that fateful night, and might make them think twice and may be thrice before going ahead. The hesitation induced could be the difference between life and death for many young girls.


Dr. Saurabh Jha, MD MRCS, a British/Indian NRI, is an Assistant Professor of Radiology at the University of Pennsylvania in Philadelphia, USA. With his natural flair for writing, Dr. Jha will be expressing his views on Bihar, Bihar-related issues, and other topics that are sure to grab the attention of the visitors of PatnaDaily.Com. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..