Death Penalty for Rape of Minors: Easy Way Out!

by April 27, 2018 0 comments

Easy Way OutDeath penalty for rape cases of minors, under the age of 12 years, has not been thoroughly thought out.

As a concerned citizen of India, the past few weeks and months have been some of the most heart-wrenching moments of my life. The brutal rape and murder of a minor in Kathua and other horrific incidents of rape and sexual assault against young girls over the past weeks and months has shocked most of us to our core. These incidents display man’s lowest, darkest and most heinous nature. It is a matter of great shame and sorrow that we have failed these children and in order to make some amends for our failure, we must look at how we can help ensure that these acts are not repeated.

The manner in which the present Government has decided to tackle this issue is through an ordinance promulgated by President Ram Nath Kovind which, inter alia, provides for (i) a minimum jail term being 20 years which may go up to life in prison or death sentence in case of rape of girls below the age of 12 (ii) a minimum punishment of 20 years which is extendable to imprisonment for rest of life in case of rape of a girl under 16 years (iii) punishment of jail term for the rest of life or death for gang-rape of a girl under 12 years of age. The ordinance also provides that investigation into such cases is to be completed within two months and completion of the trial within two months.

This ordinance is essentially taking the easy way out  since it is extremely unlikely that such a move will help bring about any tangible benefits.

Understanding context

India in 2012 witnessed a similarly horrific case of murder and rape. The Nirbhaya case shocked the consciousness of an entire nation and the government enacted the Criminal Law (Amendment) Act, 2013, which provided for stringent punishments (including death penalty for repeat offenders) in cases of violence against women and young girls. There were also amendments made to the Protection of Children against Sexual offenses Act, 2012 which put in place guidelines for the police and the courts setup child courts and deal with victims sensitively. While some of these moves, not least the requirement to deal with victims sensitively, were needed and welcome, it is important to see the impact of these steps.

Unfortunately, the fact is that the number of cases of rape reported in 2016 increased by 56 per cent over 2012. While one view to take is that the amendments in 2013 encouraged greater reporting of cases, it does lend credence to the argument that harsher penalties do not necessarily reduce the incidence of rape and sexual assault. Ultimately, the reduction of crimes against women  should be our aim while examining this matter and that may not necessarily mean imposing the highest possible penalty for such offences. Sure, such moves are often celebrated publicly but that does not necessarily mean that it is the best way to tackle the problem.

Quick to the trigger

This brings me to my next point on whether the ordinance has been carefully thought out — a question that was also raised by the High Court of Delhi, directed to the government. In my view, it has not. On the issue of institution of the death penalty, it is pertinent to note that the latest figures available with the National Crime Records Bureau (NCRB) show that out of the 64,138 child rape cases that came up before the courts under the amended laws, less than three per cent ended in convictions. Studies and reports like the Justice Verma committee report too indicate the death penalty is not an inhibitor against such actions of sexual assault and rape. Indeed, in light of the mandatory minimum sentences that have been proposed under the ordinance, there is a genuine fear that the aggressors of rape will be more inclined to murder their victim and take their chances with the justice system since the punishment for rape and murder will be the same. This is an eventuality that no one in the country wants. We must remember, the aim is to ensure that the lives of our fellow citizens are protected and such a move may put them at greater risk.

Another crucial point to note is that according to NCRB data, out of the cases of rape reported by children and women, the accused was known to the victim in 94.6 per cent cases. This is a damning statistic. In such cases, will a harsher penalty or even the victim encourage family members to report such these assaults? The answer is likely to be: No. Again, we must recognize that our laws cannot be divorced from the reality that the people who these laws seek to protect live through.

A further issue I have with the ordinance is the time-limit for investigations that have been put in place. As stated above, the ordinance provides that investigation into such cases is to be completed within two months and completion of the trial within two months. While we all admit speedy justice is the need of the hour, this cannot be at the cost of the victims and such stringent time-limits threaten just that. This is because while working within such timelines, the investigations are quite likely to be rushed and not carried out properly. This in turn could lead to a situation where during trial, the evidence gathered during the investigation does not hold up in a court of law or is unable to stand scrutiny. In such situations, the judge is faced with possibly shoddy evidence and the prospect of sentencing the accused to death due to the mandatory minimum sentences that have been prescribed under the ordinance. Therefore, a situation  may arise where the judge is inclined to acquit the accused rather than pass the mandatory minimum sentence — an outcome that is less than desirable

We must therefore realize that India as a country in certain aspects, and especially this one, is ‘over lawed’ but ‘under governed’. What I mean by this is that we should start examining the problem at a more foundational and structural level rather than taking the easy way out. In order to truly do justice to the Kathua victim and the thousands of young women and girls who came before her, we must ensure that these incidents do not recur and the ordinance that has been promulgated, unfortunately, does not get us any closer to that goal.

In my next column, I will attempt to examine what policies and steps should be taken to help protect our young children and improve the deplorable state of women in our country. These steps may not be eye-catching and will be time and effort intensive, but I believe that we need to knuckle down and actually improve the situation on the ground rather than patting ourselves on the back for taking the easy way out.

(The writer, Jharkhand PCC president, is a former MP and IPS officer. Views expressed are personal)

Writer: Ajay Kumar

Courtesy: The Pioneer

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