World Day Against the Death Penalty was observed across the globe on Wednesday, 10 October. Despite pressure from the international community, India still maintains its stand on handing out death sentences in certain cases.
After the horrific Kathua rape case, to appease building pressure from all across the country, the Narendra Modi government passed an ordinance as per which anyone raping children under 12 years of age can be sentenced to death. However, the ordinance is just a populist order that seeks to trick people into thinking that the government is taking action, when in reality, the institutional framework that allows such crimes — while preventing their reporting — is left untouched.
What is problematic at the outset is that minors have been categorised under two heads — under 12 and over 12. This brings to the fore the bias that the police, judges and the media have against adolescent girls who they suspect file false cases. In fact, research shows that the conviction rate for rapists decreases as the age of the victim increases. Adolescent girls above the age of 12 are considered to be liars who engage in consensual sex and make false accusations. The physical violence, mental trauma and social stigma that such girls face is, therefore, vilified.
Another fact that the ordinance has conveniently ignored is that research shows that in most rape cases (nearly 95 percent) filed under Section 375 of Indian Penal Code (IPC) and Section 4 of Protection of Children from Sexual Offences (POCSO) Act, 2012, the accused is known to the girl or woman. In these cases, the accused is the father, brother, grandfather, relative, or neighbour. Only in a few cases is the accused a stranger. In such a state of affairs, the victim or survivor already faces immense social pressure to not file cases. Even in cases that are filed and the girl has already gone on record to report the crime, social pressure forces them to withdraw the cases and save their extended family. Now, with the added pressure of death penalty looming over their heads, victims will be further deterred from reporting the offence.
The Law Commission of India already opined in a 2015 report that death penalty is not a deterring factor to a crime, has failed to reach its objective and therefore, should be abolished. Moreover, research carried out by Amnesty International shows that nearly 88 percent of criminologists believe that capital punishment is not a deterrent to any crime.
What the ordinance doesn’t address is the horrendous ground-level state of affairs. Right from reporting the crime to intrusive and uncalled for questions at the trial and low conviction rates, women face one hurdle after another. The police is very hesitant to file FIRs where the accused is a family member. The woman is harassed further and asked to reconsider before filing an FIR because it will put her family member in jail. In cases where an FIR is registered, the stakeholders involved in further steps, be it the investigators or prosecutors, are inefficient, and their actions are patriarchal.
Another practical problem is that with the rape of girls below 12 punishable by death under the ordinance, there are now high chances that the child will be murdered after being raped. The accused is likely to kill the victim to get rid of the only eyewitness to the horrendous crime.
If the government still doesn’t find it wise to do away with death penalty, then it should justify how, even after the ordinance was passed, a 7-year-old girl was raped by 21-year-old man in Delhi’s Shahdara, or how a 14-month-old toddler was raped in Gujarat.
The way to change any society is not by thrusting such a punishment on them. Instead, reforms must be brought in. It must be remembered that the reforms should begin with sensitising the children, parents and the police, providing better legal aid and most importantly, creating awareness. The lack of faith in the judicial system, the insurmountable family and societal pressure and the inefficient investigation procedure are the areas that need to be tackled first before even thinking about increasing punishment.
Updated Date: Oct 11, 2018 19:02 PM