Not just child right activists, even parents of minor victims on Monday came out against the Union government’s ordinance providing the death penalty to child rapists, saying it could lead to victims being killed by perpetrators. At a programme in New Delhi, three parents, whose children were raped, urged the central government to instead strengthen the judicial mechanism to support the children, who have to deal with the crimes and struggle in their aftermath.
“My child was 3.5 years old when she was raped in her playschool days after the 2012 Nirbhaya gangrape case. She was still breast-feeding,” a father, whose testimonial moved those present at the programme to tears, said. “We sat in the police station with her from 9am to 9:30pm to register an FIR and she was asked where she was touched and how much pain she experienced. She was made to repeat her statement again and again for months. I want to ask everyone if I was wrong to ask for justice for my daughter,” he said.
The Union Cabinet, two days ago, cleared the Criminal Law (Amendment) Ordinance 2018, which proposes stringent punishments, ranging from a minimum of 20 years to life term or death, for raping girls below the age of 12. President Ram Nath Kovind has approved the ordinance. The ordinance was brought after a nationwide outrage over cases of sexual assault and killing of minors in Kathua in Jammu and Kashmir, in Gujarat’s Surat, and the rape of a girl in Unnao in Uttar Pradesh.
Child rights groups reiterated that the real deterrent in such cases is the implementation of the laws and the certainty of punishment, rather than the death penalty. They said the ordinance was “reactionary, impractical in terms of procedural changes brought in and disproportionate with regards to sentencing.”
“The move to bring in the ordinance was based on brutality and not on any understanding of the dynamics of incest and child abuse, which is of epidemic proportions in India and is taking place in our homes as a matter of daily routine,” said Anuja Gupta of RAHI foundation, a centre for women survivors of incest and child sexual abuse. She said in her 20 years of working with rape survivors, she realised they do not want to take the burden of punishment to the abuser, especially if the abuser is a family member.
In 94 per cent of cases the perpetrator is known to the victim and introducing the death penalty will further decrease reportage of these cases to the authorities, she feared. A mother, whose child was raped by her husband – the child’s father, said she does “not want him to be hanged”. “I want him to be alive, I want him to compensate us monetarily for the rest of his life so that I can bring up my children. Why should he hang and be free of his responsibilities?
“I fear if the death penalty is introduced, children like mine would be raped and then killed, so that there remains no evidence. As a mother, I appeal to the cops to be more sensitive, judges to be more patient and – above everything else – don’t make us feel bad about seeking justice for our children,” she said. In 2017, activists said, a Women and Child Development Ministry report on child abuse said that 53.2 per cent of children admitted to having faced some form of sexual abuse. Yet this has not translated into FIRs and remains heavily unreported, they said.
Justice A P Shah, former Delhi High Court chief justice and former chairman of the Law Commission of India, said the remedy offered appears to be based on a wrong diagnosis. “Not only is the enhancement of the punishment to include the death penalty futile, but will have disastrous consequences for children. I urge everyone to reject the ordinance and focus on reforming the criminal justice system,” he said. Advocate Vrinda Grover termed the ordinance “legal populism” and said the government should instead address why the conviction rates are low in cases of sexual violence against children.
The activists said while the ordinance spoke about special courts, special prosecutors, India has one judge for every million of its population. The pendancy in Protection of Children from Sexual Offences (POCSO) Act cases is 89 per cent and the conviction rate is around 28 per cent, they said. Bharti Ali of HAQ centre for Child Rights said children are often exposed to the accused and aggressive questioning of the victims persist in courts and these are the aspects – along with plugging the gaps in the judiciary – that should be the focus of the government.
“For months we had to sleep without a fan in the blistering heat of Delhi because our daughter feared it. She feared she would be hanged from it. She cried everytime she saw a fan. While being raped, she had been threatened of being hung from a fan if she said anything. Will hanging her accused bring her justice,” the father asked.