President of India Ram Nath Kovind on April 22, 2018, gave his assent to an Ordinance allowing the death penalty for those convicted of raping girls below the age of 12 years. The ordinance was promulgated after the central government faced the heat and social outrage over the rape and murder of an eight-year-old girl in Kathua, Jammu and Kashmir and allegations of rape against a Bharatiya Janata Party (BJP) MLA in Unnao, Uttar Pradesh. The ordinance appears to be a knee-jerk reaction and more of a political gimmick to calm the troubled waters, rather than a remedy to the ill.

Data collected by the National Crime Records Bureau (NCRB) in 2016 shows, about 64,138 child rape cases that came up before the courts under the Protection of Children from Sexual Offences (POCSO) Act read with Section 376 IPC, conviction could only be secured in 1,869 cases that are about 3 per cent of the total cases brought before courts. The Act mandates that trials must be completed within a year; however, NCRB data points at the end of 2016, 89 per cent cases were pending trial.

In the majority of child rape cases, the offender is a known person of the victim, such as a close family member or a neighbour or an acquaintance due to which there is under-reportage of incidents. The Ordinance which stipulates the death penalty for those convicted of raping girls below the age of 12 years will now only complicate matters and further suppress the reportage of incidents.

The Delhi High Court, recently while hearing a plea challenging the Criminal Law (Amendment) Act, 2013, according to a report in Indian Express dated April 24, 2018, orally observed in regard to the new ordinance as now punishment for both murder and rape is same, how many offenders will allow their victims to survive? Further, posed a question to the government whether the ordinance had been rushed in a response to public outcry or root cause of the offense has been studied.

Justice Bhagwati while delivering a dissenting opinion in case of Bachan Singh vs State of Punjab (1982) (3 SCC 24) where he held capital punishment to be unconstitutional. Quotes Arthur Koestler on the point deterrent effect of the death penalty is a myth:

“When pick-pockets were punished by hanging in England, other thieves exercised their talents in the crowds surrounding the scaffold where the convicted pickpocket was being hanged. Statistics compiled during the last 50 years in England show that out of 250 men hanged, 170 had previously attended one or even two public executions and yet they were not deterred from committing the offense of murder which ultimately led to their conviction and hanging. It is a myth nurtured by superstition and fear that death penalty has some special terror for the criminal which acts as a deterrent against the commission of the crime”.

Law Commission of India in its report on death penalty says after many years of research and debate view has emerged that there is no evidence to suggest that the death penalty has a deterrent effect over and above its alternative — life imprisonment.

The Justice Verma Committee, which was formed after ‘Nirbhaya’ gang-rape case, in its report concluded death penalty would be a regressive step in the field of sentencing and reformation. Further, recommended that punishment for aggravated forms of rape may be enhanced to life term, a deterrent effect of the death penalty on serious crimes is actually a myth.

According to Reports of the Centre for Child and the Law, the National Law School of India University, Bangalore (CCL-NLSIU), on the functioning of special courts under the Protection of Children from Sexual Offences (POCSO) Act, 2012 one of the main causes for the low rate of conviction under the Act is lack of infrastructure and manpower in the criminal justice system. Majority of districts continue to try cases of child sexual abuse in regular sessions courts, designated as “special courts” for the sake of compliance. Further, investigations are often shoddy and botched up due to understaffed, poorly trained, an overburdened police force which has little or no forensic support.

CCL-NLSIU’s reports further point out, in practice, timelines for completion of the investigation, for the recording of evidence, and for completion of the trial, are almost never adhered due to the pendency of cases and the lack of facilities. The Ordinance mandates that investigation and trial of all cases of rape have to be necessarily completed within a period of four months. These timelines appear to be unreasonable and non-implementable on ground level given the state of pendency in the system and lack of infrastructure available.

The ordinance appears to be a quick fix solution that has been brought in hastily to calm the angry sections of society and does not provide any real solutions to the issue. In a parliamentary democracy, ordinances should be the least favoured way to make laws. The Parliamentary procedure of legislating gives time and space to discuss pros and cons, look at studies conducted on the matter, take opinions from various stakeholders and people working in the field, thereby bringing a holistic view to the discussion, such an exercise is not possible when an ordinance is promulgated. The government needs to address the root cause of the problem by investing in the sex-education program for children and launching gender empowerment programs to educate the masses. The court infrastructure needs to be strengthened — police better trained and sensitised to handle and support victims of the crime which will ensure better investigations which in turn will translate into better conviction rate of the offenders. It is certainty and uniformity of the punishment, which deters an offender from committing a crime.

By Udayan Tandan

The author of this article is an independent legal practitioner based in New Delhi.