Two telling sets of figures from the latest National Crime Records Bureau (NCRB) put a question mark on the effectiveness of death as a deterrence for child rape. 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 convictions. Moreover, of the total cases of rape of women and children before the police that year, in over 94 per cent of the cases (34,650 out of 36,657 cases), 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, as sought by the proposed ordinance cleared by the Union Cabinet on Saturday.
Says Supreme Court advocate Vrinda Grover, “Far from reporting the crime, death penalty is going to deter the victim from reporting sexual assault when the offender is from the family or is known to them. This will lead to the crime being suppressed and the victim being left completely helpless. Without strengthening the investigation process or the prosecution, creating an enabling environment both in the court and outside, and improving the conviction rate, the sentence is irrelevant.”
Despite the POCSO Act providing for trials to be completed within a year, at the end of 2016, 89 per cent 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 a 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 the criticism”.
In addition to the proposed amendment to Section 42 of the POCSO Act and IPC Section 376 (rape laws) to allow for death penalty for rape of girls under 12, the Ordinance also seeks to amend CRPC Sections 173 and 309 to set a two-month time-frame within which police investigation in rape cases and trial will have to be completed. But the Criminal Law (Amendment) Act, 2013, had already changed these two laws to state 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.
Persis Sidhva, advocate with the Flavia Agnes-run Majlis Legal Centre, which while providing support to the Shakti mills rape survivors publicly took a stand against death penalty, says, “Death penalty shifts the burden on to the victim as, since the offenders are known to them in most cases, they are likely to turn hostile or not report the crime.”
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.
The government has also proposed to extend its existing 180 one-stop centres for rape survivors to cover all districts in the country, but Sidhva points out that a district-level centre does little to improve access to justice. “What is required is a state-run victim support programme at the taluka level so that the victim has access to justice at every stage, be it for following up with the police, in the hospital or the court,” she says.
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% of prisoners sentenced to death had never attended school, 9.6% did not complete primary school education and 61.6% had not completed their secondary school education. Also, 76% of those sentenced to death in India belong to backward classes and religious minorities while 74% of the prisoners on death row are economically vulnerable.