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.
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.(Published on 30th April 2018, Volume XXX, Issue 18)