In January, when the Supreme Court asked the Centre to respond to a PIL that had petitioned for the death penalty to child rapists, it received a short but well-reasoned answer. “The death penalty is not the answer for everything,” Additional Solicitor General P S Narasimha told a three-judge bench headed by Chief Justice Dipak Misra. Moved by the outrage over the rape of an eight-year-old in Kathua in Jammu and Kashmir, nearly three months later, the government seems to have retracted its position. On Friday, the Ministry of Women and Child Development submitted a note informing the apex court that it has begun the process of amending the Protection of Children Against Sexual Offenders (POCSO) Act. Anguish over the crime is understandable but the move to introduce death penalty in the POCSO Act seems a knee-jerk response to the public outcry.
The demand for death penalty for sexual crimes stems primarily from a society’s desire for revenge, not redress. A growing body of literature now emphasises that the death penalty is not a deterrent against any kind of crime — better policing, social welfare and effective implementation of the due processes are. Tracking down sexual crimes has proved difficult because — as pointed out by National Crime Records Bureau reports since 2014 — in over 90 per cent of such crimes, the perpetrators are known to the victim. In March, a report of the Parliamentary Standing Committee on Home Affairs noted that, “child sexual abuse and related crimes remain overwhelmingly under-reported due to the associated stigma and propensity of parents/guardians to not involve the police in these matters”. And in February, a study by the National Law School of India University (NLSUI) reported that in 67 per cent of child rape cases, the survivors gave up on the trial or changed their statement. Introducing the death penalty in the POCSO Act will aggravate this problem.
The NLSUI study also found that there were no courtrooms exclusively for child abuse cases, “few courts had separate rooms for recording the statements of witnesses, and there were no waiting rooms or toilets nearby”. These omissions, as the study pointed out, contravene the POCSO Act. It is unfortunate that rather than addressing these shortcomings the government is considering a measure that is rooted in the state’s archaic “right” to take away life.