What is the issue?
- 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.
Source: The Hindu, Indian Express, Times of India
