What is the issue?
- Rajasthan and Madhya Pradesh have passed Bills introducing death penalty for rape of a girl below the age of 12 years.
- A legal backing for death penalty demand in child rape cases needs a relook on both social attitude and government's responsibility.
What is the rationale behind the legislation?
- Firstly, there is the belief that harsher punishments will deter people from committing child rape.
- Also, justice for child survivors demands that the law provide for the death penalty.
- Lastly, the disgust for the crime makes the perpetrator ‘deserving’ of death penalty.
Why are the arguments flawed?
- Deterrence - The deterrence argument puts forth that fear of harshest punishment will prevent individuals from committing child rape.
- But social, economic, cultural, psychological and other factors in one's life interact in far more complex ways.
- Various studies have proved the uncertainty of death penalty in being an effective deterrent.
- Moreover, in the context of child rape, many preventive measures and policies do have a definitive impact on preventing child rape.
- These may include risk assessment and management, cognitive behavioural treatment and community protection measures.
- Diverting resources to the death penalty, is more like taking away from developing these strategies that have greater preventive potential.
- Justice - The argument of death penalty as justice to the child survivor seeks to cover-up the real reasons preventing justice.
- Notably, the conviction rates are low under the Protection of Children from Sexual Offences Act, 2012.
- There are some grave concerns over the manner of investigations and criminal prosecutions under the POCSO Act.
- There is lack of specialised investigators, prosecutors, judges, mental health professionals, doctors, forensic experts and social workers.
- Inadequate child protection and rehabilitation services, lack of compliance with child-friendly legal procedures are some other concerns.
- Furthermore no real system of positive measures to reduce vulnerabilities of children in this context has been developed.
- Working on these shortfalls is the need of the hour to ensure justice for child survivors.
- Under-reporting - A large proportion of perpetrators are family members or those close to or known to the family.
- This results in massive underreporting of such crimes.
- This concern will only intensify with death penalty, as the child’s family risks sending a family member or a known person to the gallows.
- Attitude - The abhorrence or disgust associated with the crime and perpetrators of such crimes lies at the core of this legislation.
- This social attitude drives the sentiment that such individuals ‘deserve’ death penalty.
- Ideas like 'human rights are meant for humans and not devils who are involved in heinous crimes' need assessments.
- Legal - Under the Constitution, a legislation has to always give a sentencing judge the option to choose between life imprisonment and death penalty.
- Death penalty cannot be declared as the only punishment for any crime.
- The sentencing judges will have to make this choice in the context of child rape too.
- Arbitrariness - Arbitrariness in imposing death sentences has been explicitly discussed in judgments of the Supreme Court.
- It has also led the Law Commission to recommend the gradual abolition of the death penalty in one of its reports .
- The arbitrariness concern will only worsen in child rape cases, when judges decide on death sentence based on the ‘rarest of rare’ standard.
- It must be ensured that it does not become a judge-centric exercise with individual predilections of a judge taking over any rule of law.
- Arriving at measures and standards to decide certain instances of child rape as worse than others is a questionable exercise.
- Vulnerability - The arbitrariness of the death penalty in India also arises from the discriminatory impact of the choice of what constitutes ‘rarest of rare’.
- The Death Penalty India Report of 2016 found that over 75% of death row prisoners were extremely poor.
- They belong to marginalised groups with barely any meaningful access to legal representation.
- Thus, in most cases, the weakest sections of the society bear the burden of the death penalty.
- It is important to understand this implication, in the discussion on death penalty for child rape.
What is the way forward?
- Measures that the governments ought to take are different from steps meant to convey public abhorrence.
- The social menace of child rape requires sustained planning, engagement, and investment of resources by the government.
- Death penalty for child rape is a counterproductive diversion and an easy way out on the issue.
Source: The Hindu
