This is a classic case of over-legislation and under-implementation, and as child rights groups point out, capital punishment will worsen under-reporting as 94% of the offenders are known to the child victim.

The Central government’s proposal to amend the Protection of Children from Sexual Offences (POCSO) Act, Indian Penal Code and Criminal Procedure Code and introduce death penalty for child rapists was strongly opposed by human rights organizations and child rights activists, and rightly so.

The move comes against the backdrop of the alleged rape and murder of girls in Jammu and Kashmir’s Kathua and Gujarat’s Surat district recently. The decision of the government finally led to President Ram Nath Kovind giving assent to the Criminal Law Ordinance, 2018, which now allows courts to award death penalty to those convicted of raping children below 12 years of age. Apart from the understandable but harmful reflex of an angry nation demanding death for rapists, the Chief of Delhi Commission for Women went on an indefinite hunger strike demanding death for the convicts.

From the looks of it, there is a concerned politician demanding for change, but a step back and some qualified data shows that the relief granted will only slow down the process of effective change in the current criminal justice system. The problem lies in implementation and not in lack of stricter legislations. A falsely detected problem has led to a strong and extremely destructive solution.

The current law, Protection of Children from Sexual Offences Act, 2012 was enacted to protect the children against offences like sexual abuse, sexual harassment and pornography. It prescribes rigorous imprisonment for a term, which shall not be less than ten years but which may extend to imprisonment for life and also fine as punishment for aggravated penetrative sexual assault. The Act already provides for life imprisonment, and child-friendly procedures to avoid re-victimization of the survivor by the judicial system. The barrier to justice is not lack of laws but the inaction from police (as demonstrated most recently in the Unnao rape case) and/or influenced investigation by ruling political forces with vested interests.

In the backdrop of a special Act for legal recourse in such cases, the urgent need to add a provision for death penalty, (which will have to undergo the test of ‘rarest of rare’ cases) is not a revolutionary step forward as much as it is made to appear so. In the 2012 Delhi gang rape case, the accused were awarded death penalty under the then existing provisions of the Indian Penal Code, and not under the amended statute.

Even if this country needed more legislations and harsher penalties in the criminal justice system, the due process should have been followed. A representative of the Aam Aadmi Party, which is in power in Delhi, should take cognizance and invite debate and expert discussion on the issue. Setting up the ground for agitation as the first move when in power would set a precedent that the state alone will decide on issues without inviting experts, women’s rights and child rights activist on the subject. Agreeing to this one demand is accepting that steps towards a systemic change will not be addressed because it is not as furious as aggressively asking to ‘hang the rapists’. As a society which claims to understand abuse of centralized excessive power, the trend in concentrating it on a State is contradictory to that notion.

The nuanced issue of death penalty has been a dividing subject between people who are affected by the extremely disturbing state of affairs in the country and its criminal justice system. The maintained stance by activists that death penalty as a mode of punishment has no proven deterrent effects is not the only factor which supports its inefficacy.

Low conviction and reporting rates

Death Penalty Project, a National Law University’s Clinic working towards abolishing capital punishment pointed out the flaw, and in a tweet wrote, “The issue of child sexual abuse has sadly been limited to punishment for the perpetrators, instead of actually considering implementation of POCSO. As child rights groups have said, death penalty will worsen undereporting as 94% of the offenders are known to the victim.”

It is important to consider that if there are stricter laws in places, reporting of these crimes perpetrated by close family members could go down. Parents and children will be reluctant to report the crime and will be deterrent to the cause of child protection. According to the National Crime Record Bureau (NCRB) data in 2015, on the proximity of offenders to victims, 95 percent of all rape cases, the offender knew the victim. For example, 27 percent of rapes are committed by neighbours, 22 percent involves the promise of marriage and 9 percent are committed by immediate family members and relatives.

Alternative strategy which has shown results is speedy justice and conviction which is alarmingly low in India. According to a recent study by Kailash Satyarthi Children’s Foundation, it would take the courts two decades to clear the backlog of cases related to child sex abuse. With a 20% conviction rate, implementation of the POCSO should have been the focus of public debate but is eerily missing from the discourse.

Once again – not a deterrent

A 2015 Law Commission report recommended “swift” abolition of death penalty except in terror-related cases, noting it does not serve the penological goal of deterrence any more than life imprisonment.

The major reasons why capital punishment should be abolished in India according to the Law Commission are: (1) times have changed; (2) it is not a deterrent anymore; (3) sentencing is arbitrary; (4) administration of capital punishment is vulnerable to misapplication; (5) mercy powers have failed to act as the final safeguard against miscarriage of justice; (6) long delays in trials and appeals and final execution is almost torture; and (7) India is in a minority on death penalty as 140 countries have abolished it.

Apart from the Law commission, death penalty is a well-research subjects coming to the conclusion that it is not a deterring factor and has failed to achieve its objective.

Multiple surveys in United States, which is an active force in keeping the primitive notion alive, show that 88% criminologists believe that death penalty is not a deterrent factor. American crime data from 1920 to 1958 collected by Researcher Thorsten Sellin who ran a comparison between US states which had the death penalty and neighbouring states which had abolished it found no apparent correlation in the rate of homicides with the existence of a death penalty. USA still remains an outlier in keeping the system, contrary to the company of UK, France, Australia, Italy, South Africa which have all abolished capital punishment.

The entire premise of Capital punishment is flawed on many grounds including the proportionality of penalty. In the retributive system, killing as a response to rape is equating the injury done by rape equal to death. This belief attaches stigma to rape survivors and the society will treat their experience as harmful as death!

What can be done?

If the purpose is to deter and improve the criminal justice system, creating a supportive environment with a developed reporting system, legal aid, meaningful sensitization of the police force, awareness building, efforts to ensure conviction is the long yet effective measures.

There is exhaustion on the repeated publications and research recommending a complete overhaul of the criminal justice system in the public. Perhaps the idea of an eye for an eye, sounds appealing on reading about the scathing accounts of an innocent child getting raped. The opposition and the logic against awarding death penalty is an uphill battle for human rights activists and one which will have to take a very careful approach to convince the public that killing a rapist does not do any good to society but may even become an incentive to kill the victim to remove the only eye witness to the crime. Not to mention the long term effects it will have on a society built on taking lives as a rule of law.

State-sponsored killing

“The death penalty can be tolerated only by extreme statist reactionaries who demand a state that is so powerful that it has the right to kill.” Noam Chomsky in his repeated opposition to the form of punishment highlighted the aspect of giving extreme power to the state.

The ordinance brought in by the present government in a record time appears to be a blatant tactic to appease the collective conscience; a possible replaceable term here would be the “mob mentality”. We have joined a certain league of nations in actualizing death penalty for child rapists such as China, Qatar, Sudan, UAE, Tajikistan, Tunisia, Bangladesh, Kuwait. A simple observation of the political systems of these countries makes our new common ground and state approach on the issue unappealing. According to the Death Penalty Research Project, 24.5% of prisoners on death row are Dalits and Adivasis and 20.7% are from religious minorities. This points us to some other issues which are missing from the narrative of suppoertes of capital punishment, such as our courts awards the death sentence with a class and caste bias. More likely to the poor and marginalised youth from Dalit, adivasi and Muslim communities.

There are a variety of questions left unanswered and go missing in the rhetoric of death penalty. Why is the heinous rape of a 12 year old more grave than the rape of a 13 year old victim? The reason for this arbitrariness is not shared by the government, incase there is a study, research or evidence which they have relied upon.

The politics of it

In this quest to distract the public from discussing social issues which may lead them to the shortcomings of the government, granting death penalty in a few days without discussion is a highly political move.

Prime Minister Narendra Modi not responding for two days to the news of rapes reeking of communal sentiments and instances of his party members defending the accused could be incidental, but the rush to pass this ordinance after a nation wide public outcry does reflect of a panic reaction to distract the public eye towards aggressive strategies which may or may not work. This government with its Putinesque character has in the past used aggressive-looking strategies such as surgical strikes, demonetization, cashless economy, ban on food which is not to their religious taste, in order to bring in the majority approval. In this case, the puppet is again the public, which woke up to the news of a child brutally killed, and the helplessness gave in to the demands of justice which is immediately visible.

The state should now do its duty to not give in to an idea of justice, but rely upon a rich jurisprudence available to dispel the myth of capital punishment, which has long infected the notions of justice. It must learn to recognize the stark difference between mob justice and reformative justice to bring in institutions, funds, resources and most importantly a political will to bring in a systemic change. The purpose is not to merely perform a seemingly effective public move but to address that the children of this country are not safe from us and we need a sustainable tool which may not be just legal but a strong sociological understanding of the problem which seems to be lacking as of now.

Shivangi Misra is a Delhi-based lawyer working with Lawyers Collective. 

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