Nirbhaya Case: India's Criminal Justice System Needs An Overhaul

With every update on the Nirbhaya case, there are unending and often well-meaning but uninformed arguments on social media about crime, justice, and the death penalty. The one that caught my attention was repeated statements by a lawyer arguing that justice was delivered when the punishment of the death penalty was given. If justice has been delivered, then why such frustration and haplessness among the people? Let us (begin to) deconstruct it.

Justice is not an abstract idea; legal justice is tangible and concrete. That is if a convict is punished to do community service then completing that task means that the stated punishment has been carried out and justice has been delivered. There may still be a different perception about social justice, but legally the punishment was given and carried out. Similarly, if a convict is given a sentence of imprisonment, then s/he is sent to prison. There may be parole, furloughs, counseling, reform programs accessible during imprisonment, and that is fine, as the given punishment is being carried out. The same applies to the death penalty in the Nirbhaya case. That is, justice will be delivered when the punishment is concluded. The conclusion may be through carrying out of actual death penalty or through commuting it to a life sentence; until the punishment is concluded, the delivery of justice remains incomplete.

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If the death sentence is commuted to a life sentence, many may argue that it’s not justice per se, but that would be an argument in the realm of social justice and another dimension altogether. Folks on social media conflating various issues is not new, but it is disconcerting when those trained in law end up contaminating the already messy field – messy, albeit not rocket science especially if one is trained in criminology, penology, and victimology. In the social media space, rarely there’s any attempt at broadening one’s perspective or saying that ‘I’m not trained in this discipline to have an informed opinion or a simple, I don’t know.’ In fact, everyone seems to be an ‘expert’ of everything. This is why it’s disconcerting to see folks, especially young people, getting most of their ‘education’ on such topics via blogs, tweets, Facebook posts or a few quick woke or not-so-woke phrases.

Justice is not an abstract idea; legal justice is tangible and concrete. That is if a convict is punished to do community service then completing that task means that the stated punishment has been carried out and justice has been delivered.

While talking about justice, there also seems to be a discussion on the death penalty. Many argue that the death penalty should not be used as it does not create deterrence. That is true, however, deterrence is a separate sentencing goal than retribution, of which the death penalty is one example. Retribution is an end itself, while deterrence could be achieved through many other punitive means. While arguing about whether justice has been delivered or not in the Nirbhaya case, many folks tend to start talking about the effectiveness of the death penalty to create deterrence. It is an important discussion, but again, not just related to the Nirbhaya case. One would also need to see if imprisonment creates deterrence; what’s the recidivism rate for various crimes; what are the differences in recidivism, or lack thereof, based on sex, type of crime, age, etc.

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Similarly, it is argued that the death penalty for rape may put victims at a higher risk of homicide as the perpetrators would want to leave no evidence. There are enough studies on excessive punishment and higher crime in the west, with differing conclusions including based on the type of crime; a few are being quoted in Indian media without anyone actually being inconvenienced to read any study in totality. How about study deterrence and marginal deterrence outside of TV studios and ideological silos? One needs to put a systematic effort in understanding these concepts and not just ‘Google’ or ‘Wikipedia’ them based on the day’s headlines This episodic interest in punishment – any measure of it – and its impact does little to bring about meaningful change in the system. All the criticism and discussion, including on legitimate concerns about the effectiveness of the criminal justice system or the use of the death penalty, are centered around a particular case trending on social media rather than actual interest in investing in theory, research, and practice over an extended time.

Ironically, just as the label of ‘justice’ is attached to punishment without the actual conclusion/carrying out of it, the label of a survivor is attached without any effort in actually assisting the victim to survive the trauma.

Another argument that many are making about the death penalty is that of delays. One lawyer noted that delays are common in cases of the death penalty in the United States as well. True. However, it is a tad too simplistic to compare the Indian criminal justice system to the American Criminal Justice System. Just in case of the death penalty, the US has executed more death row convicts than India and also has more death row convicts than India. The police in the US are not subservient to the political class; lawyers or every random guy on the street cannot hit police officers and get away with it. The caseloads in courts are much lower. There are no ‘special provisions’ for convicts of a certain class or political clout behind bars. States have a time-bound appeals system. In sum, despite ample problems, more often than not, it works, and that is why there is little clamor for the death penalty or celebration of vigilante justice. Thus, simply stating if x, y, z happens in the US, then it is justified or must happen in India as well, is devoid of logic.

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Criminal justice systems exist within a society and those elements and compulsions cannot be overlooked. For instance, despite pretty low conviction rate in rape cases in the United States, many rape victims are able to survive due to evolution in societal and cultural attitudes and support systems; while in India, even the most progressive (self-labeled) media seems to be lost in debating what to label victims. Yes, they are survivors, but simply labeling them so does not lead to their survival – it is predicated on getting timely justice, having the tools to actually survive in the society post-victimization, and that victimization alone not becoming one’s identity. There is little to no effort or television debate on the process of survival. Ironically, just as the label of ‘justice’ is attached to punishment without the actual conclusion/carrying out of it, the label of a survivor is attached without any effort in actually assisting the victim to survive the trauma.

In all this clutter, I still hope that the Nirbhaya case (and that includes the punitive measure) reaches its logical conclusion sooner rather than later. The criminal justice system needs an overhaul and that’s not news, but will it stay in news and force the lawmakers’ hand to do so, is another matter.

Divya Sharma is a Professor of Justice and Law Administration at Ancell School of Business, Western Connecticut State University. The views expressed are the author's own.