With the recent Kathua and Unnao rape incidents, the demand for death penalty for rape convicts is back.
However, the decision on death penalty needs a thorough view through the social and legal lenses of the nation.
What are the two recent cases?
Kathua - It involves an 8-year-old girl from Kathua, J&K.
She was abducted, drugged, raped and killed.
The accused are identified and arrested.
Notably, the deceased is a Muslim girl and the accused are Hindus.
These identities have made it an issue of communal politics.
Unnao - A minor girl was allegedly lured by promise of patronage and was raped by the local MLA from the current ruling party.
Her family had to struggle to get a complaint registered.
She then went missing, and a case of abduction was registered.
She was recovered and gave a statement that did not implicate the MLA.
She and her family persisted in alleging rape and began to protest outside the CM’s residence in Lucknow, UP.
Her father is said to have been beaten up by the MLA’s brother and then, picked up by the local police.
He was sent to jail, where he eventually died in judicial custody.
The government interfered and the policemen involved in the arrest of the father were suspended.
The case was transferred to the CBI and the MLA was arrested.
The charges of rape may or may not be established, but the abuse of power is evident.
Why are child rape cases complex?
Nature - Child sex abuse is a complex crime unlike murder.
There is an attitude of equating family ‘honour’ with such incidents.
Societal taboo, under-reporting and hostility to the victim make it more complicated.
Underreporting - In 95% cases, the perpetrator is known to the child.
In such cases, the child is under severe pressure to not report the abuse.
In most cases, the child victim turns hostile.
Apparently, only a lesser percentage of them actually testify against the accused.
The severity of punishment holds children (family) back from reporting and testifying.
This, along with poor investigation, results in low conviction rates.
POCSO - The POCSO Act has provisions for special, child-friendly courts.
It calls for in-camera testimony, child psychologists, protection officers and educators.
However, these are rarely implemented in states.
This results in hostile questioning by defence lawyers, threats by the perpetrators, and delays in registering of cases.
In the present case, owing to its special status, J&K does not even have a POCSO law.
So the perpetrators must be tried under the Indian Penal Code.
Is the call for death penalty valid?
Rationale - The demand for death penalty arises from disgust and society’s need for revenge.
This alone could not certainly be the basis for deciding on death penalty.
Effect - Death penalty is already a provision in most cases.
Evidently, it has not been an effective deterrent against crime.
It will only aggravate the problem of under-reporting of child sex abuse cases.
Judicial system - There is a legitimate concern that the country’s judicial system has not been consistent in awarding death penalty.
The Law Commission earlier recommended abolition of death penalty, except in terrorism-related cases.
It however observed that it is difficult to operate the ‘rarest of rare cases’ principle without a hint of arbitrariness.
It is wrong to force judges to compare the relative ‘merits’ of rape victims based on age and choose between death sentence and life.
What is the way forward?
Legislation - Public sentiments do matter in a democracy.
But it cannot replace sensible policies and the rule of law.
Legislation thus ought to be a well-considered exercise.
It should not be a response to popular outrage in particular incidents.
Policing - The issue of lack of public trust in the police should be addressed.
It must be ensured that the police serve without fear or favour.
They must abide by due process, and devote enough time and resources to handling heinous cases.
They must be allowed to carry out investigations without undue pressures and influence.
Social - Besides these, the social attitudes towards women and children ought to change.
Sensitisation on gender matters and proper socio-psychological support are essential for the society in general and the potential perpetrators in particular.
