Advocates and child rights activists are divided over the ordinance to amend the criminal laws in order to enable capital punishment for those who rape minors below 12 years of age. While some say stricter punishment is needed as the law needs to be strengthened, others see it as a knee-jerk reaction to the recent Unnao and Kathua rape incidents, and say capital punishment in the name of child protection is not justified.
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In January this year, an eight-year-old girl from in Jammu and Kashmir’s Kathua district was sedated, gangraped and murdered, while in Unnao, Uttar Pradesh, a 17-year-old girl has accused Bharatiya Janata Party MLA Kuldeep Sengar of rape. The two incidents have sparked protests across the country. On Sunday, President Ram Nath Kovind gave his assent to the Criminal Law Ordinance, 2018, which recommends a minimum of 20 years and a maximum of death for the rape of girls under 12.
Knee-jerk reaction
The death penalty has led to a debate among the lawyer and activist fraternity too. Advocate and child rights activist Maharukh Adenwala said more needs to be done in the area of prevention. “When a horrific case takes place and people are angry, the immediate reaction is to try and pacify people by saying we are changing the law. How does a harsher punishment for the accused help the child? What is the State doing to prevent such incidents? What is the State doing to ensure certainty of conviction?”
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Ms. Adenwala also said that most child sex offenders are family members, which decreases the reportage of the crime. “These are issues we should be focusing on. What was the grave urgency to pass an ordinance instead of having a debate in Parliament?”
The death penalty has never really reduced the crime rate, said Advocate Yug Chaudhary. “This is a knee-jerk reaction to whatever has happened with respect to the rape of the minors. This is the only way for politicians to show the public that they are doing something but they don't address the real problem.”
Women’s rights activist and advocate Flavia Agnes said, “I am extremely angry. This is very disturbing. The government is on the back foot as they had not reacted to whatever happened. So to combat that they came up with the death penalty. But death is not the answer; when will people understand this?”
Low reporting
Ms. Agnes too pointed out that in cases like these, most of the accused are family members or people who know the victim. “Which mother will take another family member to court? No steps are taken to increase conviction, no measures are taken to increase reporting of these cases. They just want to increase the punishment to death penalty.”
‘Deviant behaviour’
Others believed the death sentence fits in with the gravity of the crime.
Senior Counsel Amit Desai said, “Although in principle, I’m not in favour of the death penalty, in cases of gang rape of a girl of 12 years or below, one would think about the death sentence because it reflects a terribly devious mind.”
Mr. Desai put the sentence in the context of the theory of punishment, which focuses on deterrence, retribution, and the ability to change the person. “When you’re not going to be able to change the person, then what you do is keep that person in custody for life. When you’re talking of gang rape of a minor girl — whose body has not yet matured — that actually reflects deviant human behaviour and therefore one would consider the death penalty.”
Retired Justice P.D. Kode of the Bombay High Court said the death penalty was justified as rape on minors is a “dastardly act” inflicted on those incapable of protecting themselves. “We have to remain human beings; we can’t afford to be beasts. So I don’t think prescribing such a penalty is harsh.”