Death as deterrent?

In the aftermath of the horrific gang rapes of minor girls in Kathua and Unnao, the Union Minister for Women and Child Development, Maneka Gandhi, has said that her department will work on a proposal to amend the Protection of Children Against Sexual Offences (POCSO) Act to bring in the provision of death penalty for the rape of a minor below the age of 12.

The POCSO Act was enacted in 2012 to protect children from the offences of sexual assault, sexual harassment and pornography, and provide for special courts for the trial of such cases. The Act was enacted under Clause (3) of Article 15 of the Constitution, which empowers the state to make special provisions for children. The Act defines a child as any person below the age of 18.

Section 4 of the Act says that whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to a fine. Section 6 says whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life and shall also be liable to a fine.

The Act illustrates actions which constitute penetrative sexual assault and aggravated penetrative sexual assault. Penetrative sexual assault involves rape, while aggravated penetrative sexual assault involves either rape by those in positions of power and trust or gang rape. The Act has separate provisions for aggravated sexual assault, which does not involve penetration, and sexual harassment.

Maneka Gandhi’s proposal to amend the POCSO Act is deeply problematic. First and foremost, to distinguish the rape of children below 12 years and accord the perpetrators of rape on them with severe punishment of the death penalty may fail to meet the standard legal test of reasonable classification. Any classification, to be reasonable, must be founded on an intelligible differentia, which distinguishes persons or things that are grouped together from others left out of the group. Secondly, the differentia must have a rational relation to the object sought to be achieved. In other words, there must be a nexus between the basis of classification and the object of the Act.

Critics may ask why the rape of children below 12 years is deemed more heinous, warranting the death sentence, than the rape of children above 12 years. The question whether a potential rapist of a child below 12 years would hesitate to commit the heinous offence if he knows that the punishment for the offence is the death sentence also may not get an affirmative answer. It is naive to think that a potential criminal first analyses the degrees of punishment for a given offence before committing it.

Populist appeal

In a sense, Maneka Gandhi’s proposal may appeal to populist sentiment, which is not based on reason and logic, let alone any empirical evidence. Harsher punishments such as the death penalty may seem justified from the retributive theory of punishment, but have little value in terms of deterrent or reformative theories. Our abhorrence for the crime should not be allowed to cloud the pragmatic test for ensuring justice. The death penalty for a rapist, whether the victim is a child or an adult, cannot ensure justice because it supplies the perpetrator of the crime an additional motive to kill the victim and the witnesses and erase possible evidence being relied upon by the investigators.

Anup Surendranath, director of the Centre on the Death Penalty at National Law University, Delhi, wrote in a recent article in The Hindu as follows: “There is an extensive body of work that documents many preventive measures and policies that have a definitive impact on preventing child rape. By diverting resources to the death penalty, we are taking away from developing strategies such as risk assessment and management, cognitive behavioural treatment and community protection measures that have proven to have far greater preventive potential.”

Low conviction rates under POCSO

Prosecutions under POCSO, according to activists, do not have low conviction rates because there is no death sentence for those found guilty. Lack of specialisation among investigators, prosecutors and judges dealing with cases under POCSO is cited as a major factor for the low conviction rate. There is a dire need to increase the number of mental health professionals, doctors, forensic experts and social workers to deal with offences involving the rape of children and minor girls.

Justice for the victims need not be understood only in terms of harsher punishment for the offenders. Provision of adequate and qualitative child protection and rehabilitation schemes and well-paid lawyers who can make the legal procedures child-friendly could make a huge difference in ensuring substantive justice to the victims and survivors of gender-based violence. As Anup Surendranath points out, research on child sexual violence in India shows that a large proportion of the perpetrators are family members or those who are close to or known to the family. This, he says, results in massive under-reporting of such crimes. “This concern will only intensify with the death penalty because we are effectively asking the child’s family to risk sending a family member or a known person to the gallows,” he says.

Judges’ discretion

The foremost reason which would militate against the death penalty for rapists is that mandatory death sentences have been frowned upon by the judiciary time and again because they do away with the element of discretion of the judges in sentencing. If the judges have the discretion to decide whether a particular child rapist deserves to be punished with death or life sentence, it could lead to arbitrariness in sentencing, which is equally undesirable.

Madhya Pradesh amended the Indian Penal Code (IPC) last year, the first State to do so, to provide for the death sentence or rigorous imprisonment for not less than 14 years or life imprisonment in cases of rape or gang rape of girls up to 12 years of age. The Rajasthan Assembly passed a similar Bill in March, inserting Section 376-AA in the IPC. The Bill reportedly has a provision to deny release from prison for the remainder of one’s life, even after completing 14 years of sentence, if sentenced to life imprisonment. Section 376-DD has been inserted to deal with offences of gang rape. Both Rajasthan and Madhya Pradesh have reportedly registered a rise in the crimes against children. A few other States, reports say, consider these amendments as examples worthy of emulation.

While amendments such as this may stand legal scrutiny because they safeguard the discretion of the sentencing judge to impose either the death penalty or life sentence on a convicted rapist, their relevance in deterring child rape or ensuring justice to the survivors or the victims is open to question. Surely, lawmakers should move away from rhetoric and playing to the gallery towards substantive remedies in order to address the challenge of the increasing number of child rapes.

Amendments to bring in the death sentence for rapists may help to show that a government is tough on perpetrators of heinous crimes, but appearing to be tough makes no sense in a system which has the potential to enable offenders to evade the rigours of law. Therefore, a relevant exercise would be to consider whether such an amendment actually translates into fewer crimes and a larger number of convictions.

On the contrary, a sentencing judge who uses his discretion to arbitrarily impose death sentences or life sentences without the promise of early release may lead to a loss of confidence in the judicial system, thereby forcing citizens to question the need to comply with laws.

It is not the statistics on child rapes that should either cause concern in (if they reveal an increase in number) or give satisfaction (if there is a drop in number) to a society. The question that we should be asking is whether our legal framework is sufficient to instil confidence that justice will be rendered to the victims and survivors of sexual violence in an effective and expeditious manner.