Barbaric indeed

When judges assume messianic roles while seeking to act on perceived outrage, it may result in inventive remedies but not necessarily achieve complete justice. It is not unusual these days to find some of them traversing beyond the remit of the cases before them and seeking to find or suggest solutions to many of society’s crimes and ills. In the Madras High Court, one has seen recent instances of a judge suggesting mediation between a victim and the perpetrator of a rape, another laying down that mere sexual relations amount to marriage, and one prescribing pre-marital potency tests to prevent divorces happening. The latest is the suggestion of Justice N. Kirubakaran that castration be made an additional punishment for child rape. Significantly, he himself acknowledges that this would be criticised as being barbaric and retrograde, but yet goes on to say that barbaric acts require barbaric punishments. But this is out of character with Indian jurisprudence as well as known canons of modern criminal justice. For one thing, the principle of proportionality of punishment is a limiting norm that militates against excessive punishment, and is not an eye-for-an-eye rule. Secondly, civilised systems have moved away from retributive sentencing, especially from ideas such as torture, decapitation, mutilation and chopping off of parts of the body as forms of punishment. It may also be counter-productive if castration is added as a form of punishment as it may deter foreign courts from allowing the extradition of offenders to face trial in India.

The judge’s suggestion is not qualified as ‘chemical castration’ in the operative part of the judgment. To be fair, he has listed the countries and some States in the United States that do have provision for chemical castration, or the injection of drugs that reduce testosterone levels and control libido — and it is not a suggestion that has not been made in the past. Also, he has called for wider consultations involving experts before such a measure is introduced. The Justice J.S. Verma Committee, which in 2013 recommended far-reaching changes to criminal law to protect women from sexual offences, also received suggestions to that effect. However, the committee had noted that the effects of chemical castration were temporary, and repeated monitored doses at regular intervals may be required. It will violate human rights treaties such as the International Covenant on Civil Political Rights, which bars cruel and unusual forms of punishment. In other jurisdictions it is done with the offender’s consent and is a form of psychiatric treatment and not a judicial penalty. None, least of all the courts, should assume that rapes occur because of uncontrollable sexual urge. There can be no ‘magical results’ in curbing crimes against women, unless there is transformation in society and its very thought process. The rising rate of sexual crimes against children in the country is indeed alarming, but that is not reason enough for courts of law to advocate medieval forms of punishment.