Doubts about efficacy of Indian ordinance allowing death sentence for child rape

Indian President Ram Nath Kovind on Sunday signed an ordinance to pave the way for providing stringent punishment, including death penalty, for those convicted of raping girls below the age of 12 years.

>>PK Balachandranbdnews24.com
Published : 22 April 2018, 07:52 AM
Updated : 22 April 2018, 09:38 AM

But lawyers and experts wonder if this stringent provision will make a difference because  the root of the problem of rape lies not in the leniency of the existing system of punishment, but in the judicial and law enforcing systems and also social mores.

The union cabinet on Saturday approved an Executive Order to allow courts to award death penalty to those convicted of raping girls under 12 years.

New fast-track courts will be set up to deal with such cases and special forensic kits for rape cases will be given to all police stations and hospitals in the long term, according to the Criminal Law (Amendment) Ordinance 2018.

The Executive Order stipulates stringent punishment for perpetrators of rape, particularly of girls below 16 and 12 years. Death sentence has been provided for rapists of girls under 12 years, officials said quoting the ordinance.

The minimum punishment in case of rape of women has been increased from Rigorous Imprisonment of seven years to 10 years, extendable to life imprisonment.

In cases of the rape of a girl under 16 years, the minimum punishment has been increased from 10 years to 20 years, extendable to imprisonment for rest of life, which means jail terms until the end of the convict's "natural life."

The punishment for gang rape of a girl below 16 years will invariably be imprisonment for the rest of the life of the convict, officials said.

Stringent punishment for rape of a girl under 12 years has been provided with the minimum jail term being 20 years, which may go up to life in prison or death sentence, they said.

The Indian Penal Code (IPC), the Evidence Act, the Code of Criminal Procedure (CrPC) and the Protection of Children from Sexual Offences (POCSO) Act will now stand amended.

The measure also provides for speedy investigation and trial. The time limit for investigation of all cases of rape has been is two months.

A six-month time limit for the disposal of appeals in rape cases has also been prescribed.

There will also be no provision for anticipatory bail for a person accused of rape or gang rape of a girl under 16 years.

According to the latest figures with the Indian National Crime Records Bureau (NCRB) in 2016, of the 64,138 child rape cases that came up before the courts under the Protection of Children from Sexual Offences (POCSO) Act read with IPC Section 376, 1,869 cases or less than three per cent, ended in conviction.

In over 94 percent of the cases (that is in 34,650 out of 36,657), the offender was known to the victim. He was either a close family member, a neighbour, or an acquaintance.

Given this reality, experts point to the need for more debate before any amendment of the criminal law is carried out to award death penalty for cases of child rape.

The Indian media quoted Supreme Court advocate Vrinda Grover as saying that the death penalty is going to deter the victim from reporting sexual assault when the offender is from the family or is known to her.

Despite the POCSO Act providing for trials to be completed within a year, at the end of 2016, 89 percent of the cases were pending trial.

The poor conviction rate in cases of child rape goes to show that death penalty, which comes at the sentencing stage, post-convictions, will mean little to the vast majority of the victims.

Pointing to how the death sentence given to the convicts in the December 2012 gang rape case has not deterred such crimes, Grover termed the proposed Ordinance “a populist gimmick by the government to blunt criticism”.

Shekhar Gupta ,Editor of ThePrint described the Executive Order “lollipop politics” to stop the agitators for shouting for stern steps to end the rape of kids, following the rape and murder of 8 year old Asifa Bano of Kathua in Jammu and Kashmir.

Grover points out that the Criminal Law (Amendment) Act, 2013, already states that in all cases of rape, “trial shall, as far as possible, be completed within a period of two months” and that “ investigation in relation to rape of a child may be completed within three months”.

Grover explains such amendments are futile if investigations continue to be shoddy or if “judges are not trained to handle cases of child sexual assault and gender-based violence”.

The Justice Verma committee, formed in the aftermath of the December 2012 Delhi gang rape case, had held in its report that “death penalty would be a regressive step in the field of sentencing and reformation”.

The report cited the Working Group on Human Rights to state that the murder rate had declined consistently in India over the last 20 years despite the slowdown in execution of death sentences since 1980.

The Justice Verma panel only recommended enhancing punishment for aggravated forms of rape to life term, stating there is “considerable evidence that the deterrent effect of death penalty on serious crimes is actually a myth”.

However, in the wake of the outcry following the Delhi gang rape, the UPA government, in its Criminal Law (Amendment) Act, 2013, introduced death penalty for non-homicide offence of rape under IPC Sections 376E (for repeat offenders) and 376A (for rape that reduces the victim to persistent vegetative state).

In 2014, under this Section 376E of the IPC, three men were sentenced to death in the Shakti Mills gang rape case in Mumbai.

She adds that ordinary cases do not stand a chance for speedy trial when even in high-profile cases such as Shakti Mills and the Delhi gang rape case, the trial was not completed within two months because of the courts being overburdened.

“Proposing fast-track courts do not help when the number of judges remain the same or if the prosecutors are not capable of handling such cases,” says Sidhva.

In its ‘Death Penalty India Report 2016’, the National Law University (Delhi) has cited how the US Supreme Court ruled that it would be unconstitutional to extend the death penalty to non-homicide offences like rape, including rape of a minor.

The NLU report interviewed 373 of the 385 prisoners in India on death row to conclude that the structural reality of death penalty in India shows that it is “disproportionately imposed on vulnerable persons along the axes of economic and social parameters”.

The study showed that 23 percent of prisoners sentenced to death had never attended school, 9.6 percent did not complete primary school education and 61.6 percent had not completed their secondary school education.

Also, 76 percent of those sentenced to death in India belong to poorer classes and religious minorities while 74 percent of the prisoners on death row are economically vulnerable.