28, Apr 2018 | Sushmita
Riding on the outrage generated in wake of the horrific details of minor Kathua girl becoming public, the BJP government has passed an ordinance on death penalty and other stringent punishments for people who rape minors. Not only is this a regressive step but also this move is nowhere close to yielding the desirable results. This measure is only to quell the voices demanding safer atmosphere for children at large and faster justice for survivors of child sexual abuse. But, contrary to popular belief that this is a knee jerk reaction, it is actually a careful political manoeuvre.
Maneka Gandhi, said on April 13, 2018 that she and the Ministry Women and Child Development intended to bring an amendment to Protection of Children from Sexual Offences (POCSO) Act to bring the provision of death penalty for the rape of girls who are less than 12 years old. Along similar lines, Delhi Commission for Women Chief Swati Maliwal started an indefinite hunger strike on April 12. She ended her hunger strike only after the announcement by the Union Cabinet approving the ordinance providing for stringent punishment including death penalty to those accused in such cases.
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The central government promulgated the ordinance providing death penalty for rapists of girls below age 12 and other stringent provisions on April 21, 2018. While the public mood may be reactive and emotional, such demands and opinions coming from people in influential positions, especially government positions were nothing but a manipulation of the sentiments of the masses.
The Criminal Law Amendment Ordinance 2018, brought in the following features:
- Minimum punishment of rape has been made ten years
- Minimum punishment for committing rape on a woman below age 16 years is twenty years
- Minimum punishment of 20 years rigorous imprisonment extending upto death penalty/life imprisonment for committing rape on a girl aged below 12
Other features include, a fine ‘just and reasonable’ to meet the “medical expenses and rehabilitation” of the survivor, rigorous imprisonment of minimum ten years for police officers committing rapes, investigation in rape cases to be completed within two months, no anticipatory bail to be granted to a person accused of rape of girls of age 16 years and appeals in rape cases to be disposed within six months.
In an important immediate development, the Delhi High Court spoke out loud what was on the minds of many child rights and human rights activists in India.
Delhi HC pulls up Central Government
“Did you carry out any study, any scientific assessment that death penalty is a deterrent to rape? Have you thought of the consequences to the victim,” asked the bench of acting Chief Justice Gita Mittal and Justice C. Hari Shankar. The court also asked, “How many offenders would allow their victims to survive now that rape and murder have the same punishment?” The bench even added that the government was “not even looking at the root cause” or “educating people” and highlighted that many of the offenders were below 18 years and in most cases, an acquaintance of the survivor.
The court made these observations while hearing a petition filed by Madhu Kishwar that challenges the Criminal (Law) Amendment Act 2013 for withdrawing court’s discretion to award sentences lighter than seven years for rape. The Criminal law amendment Act 2013 had made the minimum punishment as seven years for rape. The grounds for filing this petition was its alleged ‘misuse’.
Hearteningly, in two different events held respectively in Delhi and Bangalore, parents of children who were sexually abused, along with activists and others came out saying that introducing the death penalty in a situation where as many as 94.6% of rapists are known to the survivor, may dissuade the survivors from reporting an offence or the survivors may turn hostile later, after reporting the crime.
However, death penalty isn’t the only problem from which the ordinance suffers.
Other shortcomings of the Ordinance
The ordinance somehow makes a distinction between rapes committed on ‘girls’ below age 12 and ‘women’ below age 16. This, in Vrinda Grover’s words, follows from a “colonial mindset” in which adolescent girls are suspected to have pre-marital relationships and the trust on their reportage is lesser than the trust shown if a younger child reports an instance of abuse.
Further, there is a glaring emphasis on girls and women while allotting punishments of various scales and child sexual abuse committed on boys finds no mention at all, pushing the survivors further into a culture of shame and silence, in which boys are supposed to act strong.
The clause of trials getting completed within a period of six months is equally unrealistic and even farcical to a large extent. The NCRB data for 2016 indicated that only 229 out of a total of 1,01,326 POCSO cases were decided by the trial court in that year. Further, that 70,425 cases were carried forward from previous years. In 2016, a whopping 30,891 fresh cases were filed making the total number of cases pending adjudication as 1,01,326. The pendency rate is a glaring 95%
Not only that, states such as Maharashtra, Gujarat, Kerala among twelve others have not appointed special public prosecutors as they were supposed to. Other infrastructure related requirements such as setting up of screens between survivors and accused in courts, hasn’t been done, as Persis Sidhwa notes in this enlightening piece.
How does one expect then, that the case trial of fresh cases will finish in six months? It’s close to impossible!
Apart from unrealistic demands, the ordinance and responses to it reeks of one step forward-two steps back. Values of liberal democracies, propagated by likes of Justice Krishan Iyer, who emphasised on reformative methods of justice seeking are increasingly and repeatedly being replaced by demands of hanging and castrating the rapists, a one stop shop all formula to stop rapes.
However, this is not the first time that demands for retributive justice are gaining momentum. Time and again, politicians and judges resort to making sensational statements prescribing methods such as chemical castration, death penalty etc. as the remedy for sexual abuse displaying a very cosmetic and superficial understanding of the problem at hand. During the 90s NDA rule, LK Advani the then Deputy Prime Minister raised the demand for chemical castration. During the anti-rape campaign in 1980s Justice V.D. Tulzapurkar, a Supreme Court judge suggested public flogging for rapists as a response to the anti-rape campaign. And more recently, Justice Kirubakaran of the Madras High Court said that child sex abusers must be castrated.
Politics of Death Penalty
Calling the recent move a squarely “political” one, former chief justice of Delhi High Court A.P. Shah said that instead of addressing the root cause of the problem of child sexual abuse, the government has chosen to impose death penalty — a move that is bound to be “counterproductive”. Shah also noted that the way trials in rape cases are conducted is very disturbing. Children are routinely exposed to the rapists and made to go through aggressive cross-examinations; there are no special courts or trained public prosecutors on ground. In such a scenario, for the government to resort to a “populist measure is worrisome”, he added.
Now, if the government was really committed to securing justice in cases of child sexual abuse, it would have shown some initiative in the recent Kathua gang rape and murder. The fact that a right wing group held a rally in support of the accused and waved the tricolour, with two senior BJP ministers in attendance, should ring enough alarm bells! Add to that the brazen manner in which lawyers from the Bar Association tried to prevent the police from filing a chargesheet in the case. In the Unnao rape case too, the accused was arrested only after the Allahabad High Court severely reprimanded the administration!
Add to this the alarming regularity with which people belonging to vulnerable socio-economic groups, particularly Dalits, Adivasis and Muslims, are the first to get picked up by the cops in such cases. The fact that they are often denied legal counsel and bail, makes them easy scapegoats, allowing the real perpetrators to walk free. This shows how the system is designed to fail some and work for others.
Meanwhile, the BJP knows that the public mood is emotional and reactive with demands of hanging the rapist being foregrounded by mainstream media. It knows that by having a law on death penalty for child sexual abusers, it will satisfy the ‘collective conscience’ of its constituency, if not the society at large.
This is why one wonders if the move was actually a political ploy to turn the tide in the BJP’s favour in the upcoming elections. After all, their recent wins were actually the result of post poll alliances and defections. Proper reform measures need careful thought, for which there isn’t much time given a series of important state elections, beginning with Karnataka in May, in the run up to the national election scheduled for next year.