President of India Ram Nath Kovind has given his nod to the ordinance which states for capital punishment for those who rape a kid below 12 years age. Many child rights and women activists vied for strictest punishment to the rapist when the Nirbhaya incidence happened in Delhi in the year 2012 and the demand just amplified soon after the brutal rape and murder of a minor girl in Kathua this year.
Many believe this stringent legal provision of awarding capital punishment to guilty would be a deterrent to rape, as the culprit to be would definitely think twice before committing such heinous crime. But many others have different opinion too.
Looking at the rate of conviction and other available data, this provision is not likely to be successful in arresting the rising trends of rape cases across India.
As per the NCRB data, the rape cases in India has sky rocketed in recent years. In 2016 alone, around 38,947 rape cases were reported in India and the no. would definitely go up as many cases are not at all reported due to social stigma, pressure from relatives, strong caste structure and for many other reasons.
Of the total reported cases around 43% cases are minor below 18 years and 5% of them are below 12%. And in 94% cases, the rapist is known to the victim. Madhya Pradesh reported the most 13% (2,467) child rapes nationwide in 2016, followed by Maharashtra (12%, 2,292 cases) and Uttar Pradesh (11%, 2,115 cases). Sikkim reported the highest rate of rape, 32.5 rapes per 100,000 children, followed by Mizoram (26.7) and Delhi (14.5), as against the national average of 4.4 child rapes.
Activists who believe that death penalty is not going to stop the rape crises in India as the core challenge lies with taking up speedy disposal of rape cases. In 2016, courts across the country completed trial in 18,552 rape cases. However, accused in 13,813 cases were acquitted.
This means that conviction rate in rape cases was just 25.5%. In many cases, the case is registered late in police station due to lack of family support, social pressure etc whereby all the circumstantial as well as forensic evidences are lost. The society ostracizes the victim limiting her movement and she is looked down upon by community and even families disown the victim many a times. Thus, being cut-off from social environment, at times, the victim resorts to commit suicide. As in many cases, victim knows the rapists, it requires tantamount of courage to avoid the pressure that comes from inside the family to lodge an FIR against the known culprit.
It has happened that in most cases, the victim as well as her family is forced to severe restrictions, sanctions, impositions which is more painful that the gory act itself. Psychologists opine that such social sanctions acts as slow poison and finishes victim slowly as we have yet to set up a victim friendly set up to deal with such cases. Even the famous POCSO act maintains quick disposal of cases, setting up of fast track courts and counseling of victims regularly. But this has not materialized as of now. Hence making cosmetic change in law is not going to bring any sudden change in the system and certainly cannot stop the splurging sexual violence in the country. Rape is certainly under reported in the country due to involvement of family members, victim blaming and lack of any concrete mechanism in the law for protection of victim and witness in the country.
Children are more vulnerable as they are subjected to intense pressure from family and police officials to suppress or not to report the case.
This award of death penalty is largely seen as a knee jerk reaction to the people’s anger and anguish that en-wrapped the country post kathua incidence. In India, death penalty is given only in rarest of rarest cases and a criminal never thinks about legal sanctions or penalty while doing a crime. Similarly, even though death penalty is awarded to people in other cases which are rarest of rare type, yet that has not put a break on the progress of those crimes in general.
Provisioning death penalty for the culprit may rather create life threatening situation as culprit might tend to kill the girl child. Again this ordinance has not taken into cognizance the rape that at times below 12 year old male child is subjected to, which severely limits the scope. Many also argue that the rapist must be hanged to death as the stigma, ostracisation as well as deprivation of rape victims are alike be it lady or a 12 year old kid.
Speeding up the trial is the biggest challenge country is facing now a days. Making judiciary accountable and developing a mechanism for speedy trial will take years together. Setting up one two first track court is perhaps not the solution neither the death penalty. Hence, more victim friendly institutions to deal with the cases, speedy disposal to provide immediate justice as well as ensuring a witness protection system in place is perhaps a bludgeoning requirement of the present day society. Capital punishment is certainly not going to solve the purpose right now.
(DISCLAIMER: This is an opinion piece. The views expressed are author’s own and have nothing to do with OTV's charter or views. OTV does not assume any responsibility or liability for the same.)