I’ve been thinking about this for a while.
Every time a brutal rape case shakes the country, the public response is immediate and intense- “Hang them.” It feels like the only proportionate response to something so deeply violent and violating.
And I understand that reaction. Sexual violence is not an abstract crime. It is a violation of dignity, autonomy, and safety. It leaves psychological scars that often last far longer than any prison sentence.
But the more I study criminal law, especially in the context of reforms like the Bharatiya Nyaya Sanhita, 2023– the more I find myself asking an uncomfortable question:
Are we equating harsher punishment with stronger justice?
After the 2012 Delhi gang rape case, India chose severity. The law expanded, penalties increased, and the death penalty became available in certain aggravated rape cases. It was a moment of collective resolve.
But more than a decade later, has severity alone made the system more effective? This is not an argument against strict punishment. It is an argument for examining whether our legal design is achieving what we believe it is.
Because criminal law is not just about expressing moral outrage. It is also about shaping behaviour, encouraging reporting, and preventing future harm. And that’s where the conversation becomes more complex.
For instance, NCRB data repeatedly shows that in a significant number of rape cases, the accused is someone known to the survivor- a relative, neighbour, acquaintance. These are not always crimes committed by strangers in dark alleys. They often unfold within homes and familiar spaces.
In such situations, reporting is already emotionally and socially complicated. There may be family pressure, financial dependence, fear of stigma. If conviction could result in death, does that increase the pressure on survivors to stay silent when the accused is someone close?
It’s an unsettling question. But policy reform demands that we ask unsettling questions.
Similarly, if punishment for aggravated rape approaches the same severity as rape followed by murder, what message does that send in terms of proportionality? Criminal law traditionally differentiates between levels of harm. If that differentiation weakens, do we unintentionally create risks we didn’t intend?
These are not arguments for leniency. They are arguments for clarity.
Because perhaps the deeper issue is not whether punishment is harsh enough, but whether conviction is certain enough. Research across jurisdictions suggests that certainty of punishment deters more effectively than extreme severity. If investigation remains inconsistent and trials prolonged, can capital punishment alone carry the weight of deterrence?
Maybe the strength of a legal system is not measured by how severe its maximum penalty is, but by how consistently and fairly it delivers justice.
I don’t claim to have final answers. But I do believe we need to shift the conversation from emotional reaction to institutional effectiveness.
Justice must be strong.
But it must also be thoughtful.
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