Cabinet approval of death penalty for rape of girls below 12 years is just a knee-jerk reaction by the government to growing public anger at the way it handled the Kathua and Unnao child rape cases. The Criminal Law (Amendment) Ordinance provides for minimum jail term of 20 years or life imprisonment or death for rape of girls below 12 years of age.
For the crime of rape of a girl under 16, minimum punishment has been increased from 10 years to 20 years, which can be extended to imprisonment for life. Minimum punishment for rape of a woman has been increased from seven years’ rigorous imprisonment to 10 years, which can also be extended to imprisonment for life.
There will be no anticipatory bail for persons accused of rape or gang rape. The Indian Penal Code, Criminal Procedure Code, Protection of Children from Sexual Offences Act and the Indian Evidence Act would have to be amended to bring about these drastic changes in punishment.
The committee headed by Justice JS Verma, former Chief Justice of India, with Justice Leila Seth, former Chief Justice of the Himachal Pradesh High Court , and Gopal Subramaniam, former Solicitor-General of India, formed in the wake of the gang rape and brutal murder of Nirbhaya in Delhi in 2012, ruled out capital punishment even in the rarest of rare rape case, saying “the deterrent effect of death penalty on serious crimes is a myth.”
Even if rapists are sentenced to death, there is no guarantee they will be executed. After 30 July 2015 no one has been hanged in India although in 2017 alone more than 100 people were sentenced to death.
In most child sexual assault cases the offences are committed by people known to the victims or those within the family. Death penalty can turn out to be a deterrent from filing complaints and lead to hushing up the crimes.
Criminologists and women’s rights groups have maintained that the answer to sexual crimes against children is strengthening of the investigation process and prosecution so that perpetrators are convicted expeditiously. It is often refusal of the police to register complaints that result in culprits going scot-free.
Ten months after the young girl in Unnao was raped by an influential BJP MLA and two weeks after her attempt to commit suicide to protest failure of the police to act, it was an order of the Allahabad High Court that prodded the police to act.
Even after the arrest, the BJP, party in power in Uttar Pradesh, has failed to suspend the MLA from the Assembly pending investigation. It sends a wrong message to the prosecuting agency. The male-dominated higher judiciary is equally responsible for the cavalier attitude towards rapists.
The Supreme Court recently acquitted a man whose conviction of rape was upheld by the High Court. Even though the woman said ‘no’ to the rapist, the honourable court found it a ‘feeble no’ and set him free. Is this the kind of justice system we want?