Mohammad Zainul Abideen Mansoorie opines why it would be ‘injustice’, though in the garb of ‘justice’, to say yes to capital punishment for a rapist.
A predominantly religious country of ours, a land of rishis, munis, sufis, saints and godmen; and of the world’s three important religions, is unfortunately among nations and societies recording high on rapes and corruption of sorts. Incidents of rape occur in tens of thousands each year as recorded by NCRB; and by unofficial estimates the number comes at hundreds of thousands as 90-95% cases go unreported/ unregistered for various reasons. Some cases – though insignificantly little in number –get publicity followed by a public outcry, of course for varying reasons and motives.
With pain and emotions running high, some people from the cross-sections of the society start suggesting and demanding ‘Death Penalty’ for the offenders. During the crisis some voices are raised in favour of legislating and enacting the ‘Islamic Shari’ah laws’ of capital punishment. The suggestion is perceived as effective deterrent to the heinous and brutal crime. Muslims in particular feel excited that the worth of Islam ultimately got appreciated and endorsed, that too in the prevailing Islamophobic environment. There is the need for looking beyond this emotive and, in fact, superficial outlook and peep into the depth of the problem.
A cursory look at Islam’s approach
Islam does not take any issue in isolation. Like all other problems, rape too has its various and numerous implications. Man, as a very complex entity in its very creation, consists of spiritual, moral and physical elements. The way he is brought up, the environment in which he grows up, the society he moves in, and the collective system he lives in, play the most active, effective, rather decisive role in shaping his character and behavioural attitude. This is the reason Islam addresses the problem of immoral acts in a holistic manner.
Islam addresses the problem of rape at broadly three levels, of course, not one after another but simultaneously. First: Spiritual and moral level. Second: Preventing the causes of rape. Third: Awarding severe and harsh punishment or death penalty, according to the specifics of the offence.
Containing rape at spiritual and moral levels
On its first plank, Islam puts in place spiritual and moral teachings that are bolstered upon strong belief of ‘accountability’ towards Allah, made effective after death, on the Day of Judgement. Rape being ordained as one of the greatest sins (Gunaah-e-Kabirah), the rapist has surely and certainly to be punished in the Hell fire. The strong belief of rape being a ‘Sin’ deters a Muslim from committing it. This belief works from within a person where no other person, no police, no judge has any access to. This contains rape to a great extent without any external intervention, keeping a society from a heavy load of societal sufferings and administrative and judicial hardships.
Preventive measures
As the axiom goes, ‘Prevention is better than cure’, at the second level Islam prescribes a marvellous set of principles, rules and injunctions that prevent rape. It takes the things in purview of the universal rule of ‘cause and effects.’ Every cause is but to produce its effects. Hence to undo ‘effects,’ it is imperative that the ‘cause’ has first to be undone. In this wake Islam shuts all hidden and visible doors of rape and puts sturdy barriers closing all streets and roads leading to these doors. For instance:
- It categorises all males and females into ‘Mahrams’ and ‘non-Mahrams.’ Those who can marry to each other (non-Mahrams) should not meet in loneliness. They are not ‘only two’, but a ‘third one (satan)’ is always with them, instigating to indulging in immoral sexual act.
- Islam ordains men and women to lower their gaze while confronting opposite genders of non-Mahram category.
- Islam prohibits strictly and fully the use of alcohol and drugs. These are totally forbidden. Precedence of rape shows that most of the rapes take place when the offender is under the influence of alcohol or drug.
- By prescribing and making obligatory a dress code, especially for women, Islam brings to lowest ebb the sexual attraction that provokes a man, which may be the first step leading to rape. Dress must be modest, loose, non-transparent and covering full body. Doing make-up and adopting extra and artificial means to look attractive to any person other than husband is strictly forbidden in Islam.
- Islam makes no difference between consensual sex and forced rape. Both are equally forbidden and punishable. In many cases indulging in consensual sex makes a man go for forced sex i.e. rape in furtherance to satiate his sexual lust.
- Free mixing of sexes, sex stimulating dancing and singing, lewd postures and gestures, sex appealing talks, appearances and behaviour is forbidden.
Activising Legal and Judicial Process
By checking up all probable factors preludial to rape, Islam minimises it to say, 98-99.99 per cent, before arising a situation of law taking its course. As against secular law deeming in its suggestively death penalty to be the first and the last deterrent to rape, Islam activises its legal and judicial system only after putting all its reformative, precautionary and preventive measures in place. So, in the Islamic viewpoint this difference in Islamic and secular approach needs full attention and an important aspect to ponder over. This has to be underlined here that given the aforementioned preventive measures, and thus bringing the incidents of rape to as low as one per cent or even less, need of capital penalty may hardly or rarely arise. In all its rareness when an incident of rape occurs due to intrinsical weakness of a human, Islam awards harsh, capital punishment to the offender. The punishment is executed in the presence of general public. This makes it a further more effective deterrent.
The on-going demand of Capital Punishment
Apart from the proponents of capital punishment there are its opponents too. Their argument is based on two points:
- Death penalty would not work. There is precedence of its failure in countries wherein law has its provision.
- While the society and the system themselves are producing, growing and nurturing rapists, there is no rationale in awarding capital punishment for this offence.
Let us discuss these two key points in a little detail. This would help understand Islamic perspective vis-à-vis capital punishment for rape.
Reasons for ineffectiveness of death penalty
With regard to point one, death penalty failed to become deterrent to rape in whichever country its law got enacted because of the reason that all factors prelusive to rape are left free to be created, grown and becoming part and parcel of the individual and collective system of life. All spiritual, moral, and ethical preventives of rape got shunned off. All societal safeguards are done away with. Neglecting the primary imperatives and abandoning the effective precautionary measures, the social scientists and legislators jumped abruptly to the ‘last resort’ of death penalty. By all logic this was but to fail, and it failed. On the contrary, in countries wherein even partly and loosely putting in place the Islamic spiritual, moral, societal, collective, and legal (Shari’ah) teachings and commandments, death penalty is a successful deterrent to rape.
In such a country of 25-30 million population, average three offenders were punished with death penalty in a year. Here lies the palpable difference between the Islamic system and the non-Islamic one.
As far as point two is concerned, and particularly in the Indian context, barring some inherent conscientious and intrinsic values, generations after generations are brought up on mundane footings. There is no concept of accountability in life hereafter. Educational philosophy and curriculum is Godless. Religion plays almost no role. Pseudo-spirituality is ruling the roost. Morality is overpowered by extreme materialism. Free sex is justified and promoted in the name of freedom of choice. Print and electronic media and internet are busy day in and day out in spreading pornography, nudity, lewdness and immoral sexual misadventures. Sex trade and sex tourism are promoted by non-state/sate players. Alcoholism, the fountainhead of all vices including rape, is growing out of bonds and being promoted by the very state and corporate sectors. Consensual sex in its various manifestations e.g. live-in relationship, courtship, prostitution, even wife-swapping, etc. have been directly or indirectly legalised. Contraceptives are there to facilitate a safe go for all these distractions. When the perversion gets transformed into obsession, men find infants, babies and teenage girls as soft targets.
To understand the Islamic philosophy of ‘Crime-Justice-Punishment,’ we can cite precedence from Islam’s second Caliph Hazrat Umar (r.a). Under his rule (634-644 C.E), there was a severe famine. A person committed theft in dire need of food. The Caliph did not execute Islam’s punishment over him, of chopping off his hand. He rather suspended the enactment of Shari’ah law regarding theft, till the situation became normal. This makes the point that if the state cannot provide conditions conducive to any law, it has no moral and legal justification in enforcing the law pertaining to any relevant case.
‘Aakhirah-oriented’ norms
In such given conditions, it is squarely illogical and unscientific to suggest Islamic capital punishment for a rapist whose person, character and sexual behaviour is brought up un-Islamically, and who lives a life fully antithetical to Islam. Unless a person, a family, a society and a legal and political system does not conform to the Islam’s ‘Aakhirah-oriented’ norms, it would be ‘injustice’, though in the garb of ‘justice’, to say yes to capital punishment for a rapist.
[The author, a prolific writer on Islam in the Urdu and Hindi languages, besides English, is professionally an Engineer and can be contacted at [email protected]]