Rajasthan and Madhya Pradesh have passed Bills introducing death penalty for rape of a girl below the age of 12 years.
A legal backing for death penalty demand in child rape cases needs a relook on both social attitude and government's responsibility.
What is the rationale behind the legislation?
Firstly, there is the belief that harsher punishments will deter people from committing child rape.
Also, justice for child survivors demands that the law provide for the death penalty.
Lastly, the disgust for the crime makes the perpetrator ‘deserving’ of death penalty.
Why are the arguments flawed?
Deterrence - The deterrence argument puts forth that fear of harshest punishment will prevent individuals from committing child rape.
But social, economic, cultural, psychological and other factors in one's life interact in far more complex ways.
Various studies have proved the uncertainty of death penalty in being an effective deterrent.
Moreover, in the context of child rape, many preventive measures and policies do have a definitive impact on preventing child rape.
These may include risk assessment and management, cognitive behavioural treatment and community protection measures.
Diverting resources to the death penalty, is more like taking away from developing these strategies that have greater preventive potential.
Justice - The argument of death penalty as justice to the child survivor seeks to cover-up the real reasons preventing justice.
Notably, the conviction rates are low under the Protection of Children from Sexual Offences Act, 2012.
There are some grave concerns over the manner of investigations and criminal prosecutions under the POCSO Act.
There is lack of specialised investigators, prosecutors, judges, mental health professionals, doctors, forensic experts and social workers.
Inadequate child protection and rehabilitation services, lack of compliance with child-friendly legal procedures are some other concerns.
Furthermore no real system of positive measures to reduce vulnerabilities of children in this context has been developed.
Working on these shortfalls is the need of the hour to ensure justice for child survivors.
Under-reporting - A large proportion of perpetrators are family members or those close to or known to the family.
This results in massive underreporting of such crimes.
This concern will only intensify with death penalty, as the child’s family risks sending a family member or a known person to the gallows.
Attitude - The abhorrence or disgust associated with the crime and perpetrators of such crimes lies at the core of this legislation.
This social attitude drives the sentiment that such individuals ‘deserve’ death penalty.
Ideas like 'human rights are meant for humans and not devils who are involved in heinous crimes' need assessments.
Legal - Under the Constitution, a legislation has to always give a sentencing judge the option to choose between life imprisonment and death penalty.
Death penalty cannot be declared as the only punishment for any crime.
The sentencing judges will have to make this choice in the context of child rape too.
Arbitrariness - Arbitrariness in imposing death sentences has been explicitly discussed in judgments of the Supreme Court.
It has also led the Law Commission to recommend the gradual abolition of the death penalty in one of its reports .
The arbitrariness concern will only worsen in child rape cases, when judges decide on death sentence based on the ‘rarest of rare’ standard.
It must be ensured that it does not become a judge-centric exercise with individual predilections of a judge taking over any rule of law.
Arriving at measures and standards to decide certain instances of child rape as worse than others is a questionable exercise.
Vulnerability - The arbitrariness of the death penalty in India also arises from the discriminatory impact of the choice of what constitutes ‘rarest of rare’.
The Death Penalty India Report of 2016 found that over 75% of death row prisoners were extremely poor.
They belong to marginalised groups with barely any meaningful access to legal representation.
Thus, in most cases, the weakest sections of the society bear the burden of the death penalty.
It is important to understand this implication, in the discussion on death penalty for child rape.
What is the way forward?
Measures that the governments ought to take are different from steps meant to convey public abhorrence.
The social menace of child rape requires sustained planning, engagement, and investment of resources by the government.
Death penalty for child rape is a counterproductive diversion and an easy way out on the issue.
