Child Rape: Modi’s Death Penalty Ordinance Is A Gimmick

The growing tide of child rape and murder, especially the horrific Kathua case, has led to outrage within and outside the country. Since pro-BJP people were accused in the Kathua case, and since their alleged motive was as much communal as anything else, the ruling Modi govt. was criticized for its silence as well as inability to provide any way out.

Perhaps in response to this widespread criticism, and perhaps out of their own peculiar mindset that thinks that death penalty is the solution to all crimes, the govt. has hurriedly passed an ordinance providing for death penalty for child rapists. But serious flaws have been pointed out in this approach by both jurists and women’s organisations.

Before going into whether death penalty helps, have a look at how the Protection of Children from Sexual Offences (POCSO) Act. The law was passed in 2012. It provides for special procedures, fast track trial and punishment of up to seven years for ‘penetrative sexual assault’, up to ten years for ‘aggravated penetrative sexual assault’, up to five years for aggravated sexual assault’ and so on. It lays down that special courts be set up, investigations be completed in three months, and trials in one year (as far as possible). Besides, it lays down conduct of media, in camera trials and a slew of measures to protect the victim child.

In 2016, a chilling 36,022 cases were registered under the Act in India. The police already had over 12,000 pending cases from 2015, so in all they were looking at over 48,000 POCSO cases in 2016. They managed to dispose of nearly 33,000 of these cases by completing investigations and either filing charge sheets or in other ways. That left about a third of cases pending again, to be carried on the next year. This data from the National Crime Records Bureau is available till 2016 only.

How do cases fare after this, at the level of the courts? Things are worse. The courts already had over 70,000 cases of child sexual abuse and rape pending when nearly 31,000 more cases were added in 2016. So, they were facing over a lakh cases. They disposed of just about 11,000 cases leaving 90,000 cases pending.

But the worst is this: courts were able to convict only in 3% of cases before them. That means seven in ten people accused of raping children are going scot free under the special law framed to deal with this heinous crime.

How will having death penalty at the end help in this dire situation? The investigation and prosecution process are obviously faulty – that is why such a tardy process with such low conviction rates. If death penalty is introduced, there is no reason why the process will get strengthened or more efficient.

In fact, as All India Democratic Women’s Association (AIDWA) has said in a statement, certainty of punishment is a better deterrent than the severity of it. Criticising the “glaring defects” in the investigative and trial process, AIDWA pointed out that “important evidence is not collected and the protocols which are supposed to be followed by the police during investigation are bypassed”.

In fact, AIDWA has said that far from being “a deterrent to perpetrators of the crime, death penalty can actually act as a deterrent on judges, who will hesitate to deliver guilty verdicts awarding death sentences”. It also said that since in cases of child sexual abuse the majority of those implicated in the crime are known to the family or are related persons, families might be hesitant to report if death penalty is going to be awarded. NCRB data for 2015 shows that nearly 95% of child sexual crimes were committed by family members, neighbors or persons known to the child.

So, the Modi govt. is not really tackling the issue of child rape and murder. It is merely dangling a red herring before the people, just as it has done in so many other policy issues.

For the issue to be tackled in real seriousness, what is essential is a social policy combined with a efficient investigation and prosecution of those accused. The social policy includes educating people, especially men on looking at women (including children) with respect and as human equals, not as chattel or objects of sexual gratification and reproduction alone. The RSS/BJP is fatally handicapped in this task as its regressive outlook holds women in precisely this position.