Last Saturday, the Honourable
President of India, Ram Nath Kovind, signed the Criminal Law (Amendment)
Ordinance to provide death penalty for rapists of girls below 12 years. The
Union Cabinet had approved the Ordinance in response to the national and
international outrage over the gang rape and murder of an 8 year old girl at
Kathua in Jammu and the rape of a 16 year old girl at Unnao in Uttar Pradesh.
The Criminal Law (Amendment) Ordinance provides for stringent punishment of a
jail term of minimum of 20 years or life imprisonment for death for rape of a
girl under 12 years. The accused can be tried using the emergency measure for
the next 6 months but it must eventually be passed by parliament to become a
lasting law.
While many enraged
citizens have hailed the Ordinance as in the right direction and that the
majority of criminals will be deterred by the death penalty, many jurists and
women and child rights activists have warned that instead of acting as a
deterrent, capital punishment for child rapists will simply drive the crime
underground. According to them in our country where conviction rates are
already abysmally low, the remedy is not harsher punishments but more
expeditious and fairer justice. In this context it is useful to examine in
detail the history of death penalty in our country, the present law and the
Ordinance and the actual measures required to control and eliminate heinous
crimes like rape and murder.
A Brief History of
Capital Punishment in India
During the
pre-independence period, death was prescribed as the maximum punishment in the
Indian Penal Code, 1860 which listed a number of capital crimes. The Penal Code
remained in effect after independence in 1947. The first death sentence was
that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination
case. They were hanged on 15th November 1949. Under Article 21 of our
constitution, no person shall be deprived of his life and liberty except according
to procedure established by law. The awarded death sentence became an exception
to law as per the decision of the Supreme Court of India in Bachan Singh vs.
State of Punjab (1980)(2 SCC 684). The Supreme Court made it clear that death
sentence can be given only in ‘rarest of rare cases’. In recent years, while
stating honour killings fall within the ‘rarest of rare’ category, Court has
recommended that the death penalty be extended to those found guilty of
committing ‘honour killings’, which deserves to be a capital crime. In 2011 the
Supreme Court also recommended death sentence to be imposed on police officials
who commit police brutality in the form of encounter killings.
In addition to Indian
Penal Code, 1860, the following are the legislations enacted by the Parliament
of India which provide for death penalty.
1.
The Commission of Sati (Prevention) Act,
1989.
2.
The Narcotic Drugs and Psychotropic
Substances (NDPS) Act, 1989.
3.
The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
There was a national
outrage over the gang rape and murder of a woman in Delhi (known as the
Nirbhaya case) in December 2012. Government of India appointed a committee of
eminent jurists headed by Late Justice J.S Verma, former Chief Justice of India
to look into the matter and recommend legislative changes in criminal law to
deter the menace of heinous crimes like rape. In its January 2013 report the
committee decided against recommending death penalty for rape, despite demands
from the general public. The committee took into account the possibility of
awarding life sentence without remission for aggravated sexual assault, as well
as “the current thinking in favour of the abolition of death penalty”. However,
following the outcry of the public the parliament enacted section 376A of the
Indian Penal Code, and the Criminal Law (Amendment) Act, 2013, prescribing
death penalty for rape in the event of it causing the victim’s death or a
persistent vegetative state and for repeat offenders.
After 1998, only four
persons – Dhananjoy Chatterjee (2004), Ajmal Kasab (2012), Afzal Guru (2013),
Yakub Memon (2015) – have been executed in India. Of these four convicts,
Dhananjoy Chatterjee was guilty of rape and murder while the remaining three
were found guilty of terrorism related offenses.
On 31st
August, 2015, the Law Commission of India submitted a report to the Government
which recommended the abolition of capital punishment for all crimes in India,
except the crime of waging war against the nation or for terrorism related
offenses. The report cited several factors to justify abolition of death
penalty, including its abolition by 140 other nations, its arbitrary and flawed
application and its lack of any proven deterring effect on criminals.
Criminal Law
(Amendment) Ordinance, 2018
The Ordinance
proposes to amend the Indian Penal Code, Code of Criminal Procedure, The
Evidence Act and Protection of Children from Sexual Offenses Act, 2012. The
main provisions of the Ordinance are as follows
1.
Amendment of S. 376 of IPC to increase the
minimum sentence of rape from 7 to 10 years.
2.
Incorporation of S. 376 (3) which provides
that punishment for rape of girl below 16 years shall not be less than 20 years
but may extend to imprisonment for life.
3.
Insertion of S. 376 AB to provide that
whoever commits rape of girls below 12 years of age shall be punished with
rigorous imprisonment for life with fine or with death.
4.
Punishment for gang rape of girls below 16
sixteen years of age with rigorous imprisonment for life and with fine.
5.
Punishment for gang rape of girls below 12
years of age with rigorous imprisonment for life and with fine or with death.
6.
Provision for speedy investigation and trial,
which must be completed in 2 months for investigation of rape cases.
7.
Provision for denial of anticipatory bail for
a person accused of rape or gang rape of a girl under 16 years.
The International
Scenario
According to Amnesty
International, the death penalty is cruel, inhuman and degrading. This
organization has been working to end executions from 1977. Today more than half
of the world’s countries, 104, have abolished the death penalty. The death
penalty breaches two essential human rights: the right to life and the right to
live free from torture. Both rights are protected under the Universal
Declaration of Human Rights adopted by the United Nations in 1948.
The following
international laws explicitly ban use of the death penalty, except during times
of war.
·
The Second
Optional Protocol to the International Covenant on Civil and Political Rights
·
Protocol
No: 6 to the European Convention on Human Rights
·
The
Protocol to the American Convention on Human Rights to abolish the death
penalty.
Though India is a
signatory to the Universal Declaration of Human Rights of 1948 and the Covenant
on Civil and Political Rights, it has not ratified the Optional Protocol to the
International Covenant on Civil and Political Rights. In December 2007, India
voted against a UN General Assembly resolution calling for a moratorium on the
death penalty. In November 2012 India again upheld its stance on capital
punishment by voting against the UN General Assembly draft resolution seeking
to end the institution of capital punishment globally. The UN stance is that
death penalty does little to deter crimes or serves the victims. Recently UN
Secretary General Antonio Gueterres called on all countries to urgently stop
executions. According to him death penalty has no place in the 21st
century.
At the end of 2017,
106 countries (a majority of the World’s States) had abolished the death
penalty in law for all crimes and 142 countries (more than two-third) had
abolished the death penalty in law or practice.
Why death penalty is
no deterrence for crimes?
There is a
misunderstanding in the society that severe punishment will act as deterrence
to offenders. People think that if punishment is increased, it will reduce the
rate of crime. But studies by Criminologists have shown that increased
punishment or severe punishment is not a deterrence to commit crimes. During
the Victorian age in Britain, death penalty was prescribed for the offence of
pick-pocketing. Though there was public hanging as a deterrent punishment for
the said offence, there was no decrease in the crime. On the other hand even
the onlookers of public hanging were victims of pick-pocketing! This shows that
there is no correlation between severity of punishment and commission of
crimes. What was the real cause for such offences during that time? It was wide
spread poverty and deprivation. Apart from that often crimes are committed in
the height of emotions and under the influence of liquor and drugs. No criminal
would think of the severity of punishment or death penalty when he is about to
commit the crimes like rape and murder.
In the peculiar
Indian social conditions, rape is often used as a weapon of vengeance against
the opponents or against who crossed the caste or religious barriers. Social
scientists have pointed out that “the tragic and gruesome rape and killing of
the eight year old girl in Kathua, Jammu with a blatantly communal agenda (as
suggested by the details that have come to light in the charge sheet filed by
the Jammu & Kashmir police), and events following it demonstrate a descent
into the deepest levels of depravity. This is shocking even for India where a
swiftly accumulating record of lynching, rape and brutalization on the grounds
of caste and religion is being allowed to happen not only with impunity but
also, and often, with support and protection from members of the political
establishment” (The Hindu, 19/04/2018).
Activist and lawyer
Vrinda Grover has pointed out that “In cases of child sexual assaults we know
that most of these crimes are committed by people known to them (the victims)
or those within the family. Can you imagine anyone coming forward to complain
about such crimes knowing that death penalty is the punishment that may be imposed?
Is the government not going to push the crime further underground and disable
the victim from coming forward?”
As per the National
Crime Records Bureau (NCRB) data for 2016, 94.6% of total crimes against
children under the POCSO Act as well as Section 376 are committed by either
relatives or acquaintances.
Ms. Grover said that “announcing
a harsher penalty such as death may prove to be futile when the conviction rate
under the Protection of Children from Sexual Offences Act is as low as 18%.”
(The Hindu, 22/04/2018). In short, death penalty is no deterrence for crimes.
What is the solution?
Experience of the
developed countries shows that crime rate in general came down with the
economic development resulting in eradication of poverty and illiteracy, rise
in the standard of living and economic prosperity and cultural change. Compared
to the developed countries India is still a developing country with nearly
one-third of its people living below the poverty line and steeped in illiteracy
and superstitions. Though there are islands of prosperity in urban centres, the
income distribution is not widespread and overall standard of living is
abysmally low. The law and order situation in many States of India is a cause
for concern. There is no security for life and property of people in many parts
of India. There are caste and communal tensions and strife between the dalits
and upper castes which frequently result in arson and violence.
Our Executive
machinery which is in-charge of law and order and Criminal Judicial System are
not performing well. The result is ever increasing incidents of crimes, delay
in registering crimes and apprehension of offenders, long delay in the trial of
criminal cases and the low conviction rate.
The slow pace of
justice is a significant obstacle in our attempt to deal with rapists and
sexual assaulters. The Ordinance calls for the mandatory completion of rape
investigation within 2 months and for trials to last a maximum of the same
period. The pertinent question is will the government be successful in
achieving this target of timely justice. After the Nirbhaya case in 2012 and
the Criminal Law Amendment Act, 2013 some fast track courts were launched for
the trial of offenses under the POCSO Act. But these courts are struggling to
cope with the volume of cases. There were forty thousand rapes reported in 2016
with children making up 40% of victims. The NCRB reported that in the same year
only 28.2% of child sexual abuse cases brought to trial had resulted in
convictions.
In our country it is
common for court cases to last years or even decades – the longest civil case
began in 1878 and has yet to be settled - because of a serious shortage of
Judges. More than 1.6 million criminal cases going through India’s District
Courts have been ongoing for more than 2 years. The Guardian cited the case of
one young woman who spent 11 years bringing her attackers to justice after she
was dragged into a car by a group of men at the age of 13 while walking home
from her housemaid’s job in Lucknow. She went through 6 trials and endured more
than 36 court appearances.
In the above scenario,
no overnight change can be expected in our country unless the Central and State
Governments take a concerted, determined and focused action to bring down crime
rates both through short term and long term measures. The root cause of the
tardy performance of our Criminal Justice system is that there are too many
laws and too many crimes while there are only too few Judges and Courts to deal
with the millions of pending cases and the ever increasing volume of new cases
being filed.
If the Central and
State Governments mean business the following measures should be taken or
implemented expeditiously
1.
Fill up the existing vacancies in the
subordinate judiciary and higher judiciary at the earliest.
2.
Take timely steps to fill up the vacancies of
Judges as and when they arise.
3.
Increase the number of Courts and Judges to
achieve the target of at least 50 Courts per million population.
4.
Implement the recommendations of the Malimath
Committee on Reforms of the Criminal Justice System for the expeditious
disposal of Criminal cases so that the conviction rate can be enhanced through
the reforms in the Police and Judicial systems.
5.
Enhance the allocation of State resources
towards the setting up of fast track Courts.
6.
One stop crisis centres for victims of rape
or sexual assaults.
7.
Proper witness protection programs.
8.
Rehabilitation programs for rape survivors.
9.
Comprehensive child protection services.
Without taking such
substantial measures, the promulgation of the Criminal Law (Amendment)
Ordinance, 2018 is only a “knee-jerk reaction” to national outcry against the
Kathua and Unnao cases and the ruling party at the Centre and the States. In
short, the Ordinance is a lot of sound and fury signifying nothing and the
state of affairs will continue as before.
Conclusion
In the long run only
an equitable distribution of income and employment, eradication of poverty and
illiteracy, provision for universal education and raising the overall standard
of living and change in the agenda of political parties of attaining power stoking
caste and communal passions, will result in the control and elimination of
heinous crimes like rape and murder. The aim of our country - as a land of
ancient culture and values like ‘
sanatana
dharma’ - of great men like Buddha and Mahatma Gandhi who preached
non-violence - should be abolition of death penalty. As Salil Shetty,
Secretary-General of Amnesty International said, the death penalty is a symptom
of a culture of violence, not a solution to it. Again, as Justice A.P Shah,
former Chief Justice of Delhi High Court remarked on the Ordinance, “The remedy
offered appears to be based on wrong diagnosis. Not only is the enhancement of
punishment futile, but will also have disastrous consequences on children”. Let
us protect at all costs the children who are the future of India.
