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Systemic overhaul needed

Knee-jerk reactions such as the death sentence for child rape will not address the problem, says Sanjeeb Panigrahi.

Sanjeeb Panigrahi |

The recent amendments, known as the Criminal Laws Ordinance 2018 which seek to amend the Indian Penal Code (IPC), the Evidence Act, the Code of Criminal Procedure (CrPC), and the Protection of Children from Sexual Offences (POCSO) Act and to introduce a new provision to sentence convicts of such crimes to punishment of death, is widely seen to be a reaction to the recent national outrage.

The Unnao and Kathua rape incidents show that the rape epidemic is on increase despite some stringent laws passed earlier. It is shocking to note that there were 19,765 reported child rapes in India (2016), or 54 every day, being offences under section 376 of the Indian Penal Code (IPC) and sections 4 and 6 of the Protection of Children from Sexual Offences (POCSO) Act. The National Crime Records Bureau (NCRB) data indicates that incidents of child rape have increased by 82 per cent in 2016 vis a vis year 2015.

It seems only a crisis or a tragedy can wake us from the deep slumber of inaction. Government portrays itself to be tough on such crime by making a piece of law or laws to pacify national revulsion on the issue.

There seems to be huge betrayal of thought in terms of impact assessment of such reactionary laws on the victims, the accused, the prosecuting agencies and the justice delivery system. Undoubtedly, rape is the most heinous of all crimes and it is expected that the fear of death could deter potential rapists. It appears quite plausible on the ground of retributive justice but several other things are likely to upset the apple cart.

Even if executions are frequent and well-publicised in many other jurisdictions there are no observable changes in the crime rate, hence harsher punishment is not a panacea for curing such deviant behaviour of criminals. The Law Commission and later the Justice Verma Committee have expressed strong reservation against handing out death sentence to rapists. According to the Law Commission, the death sentence creates no better deterrence than imprisonment for life.

Though the death penalty has been used as a political candy to pacify angry and emotionally surcharged citizens, it is really harder to work on a senile-paced justice system which often fails to ensure swift justice and certainty of punishment for sexual crimes.

There is strong apprehension by experts and civil society that the death penalty will make it difficult for children to come forward and disclose sexual abuse because 94 per cent of offenders under India’s child protection Act are either members of the family, relatives or otherwise known to the victims. It is also strongly apprehended that the chances of eliminating victims will increase in order to erase the evidence.

Stringent laws often fail to make a dent on the crime unless it is backed by certainty of conviction. The death penalty for child rape exists in only about 13 countries and most of them are Islamic nations where sentencing is quite imbalanced; hence there is scarcely any impact assessment report.

There is hardly any credible statistical evidence in support of lowering crime rate due to stringent punishment like death penalty. The purpose of a criminal justice system is to stop crime and reform criminals, but studies suggest that the discourse on death penalty has distracted our legislature from focussing and finding out the real solutions to prevent crime.

The so-called knee jerk reactions, and hastily passed laws are more of political gimmick rather than a legislative commitment to punish the guilty. Creating a supportive and enabling environment for the victim to report the crime, an effective witness protection scheme and a sensitive criminal justice system including courts, legal aid and police, rehabilitation and ensuring certainty of conviction of the accused are some of the issues which have the potential to generate a deterrent environment.

Those familiar with criminal justice issues believe that people will not report child rapes as more often than not the perpetrators are family members or relatives of the victims. It is but natural the conviction rate (less than 3 per cent at present) is likely to be depressed further.

Another aspect which often affects the conviction rate is the unavailability or unreliability of age-related documents in most cases, though in majority of cases heavy reliance is placed on the ossification test for determining the exact age which often fails to suggest exact age.

Further, empirical studies in law indicate the threat of execution is unlikely to enter into the heads of the criminals acting under the influence of drugs/alcohol or in the grip of fear or rage or those who suffer from mental illness/retardation and fail to understand the gravity of the crime they commit.

In contrast, rigorous imprisonment of wrongdoers does offer a chance to the criminals to reform themselves, and also to the system to rectify erroneous convictions.

According to the Law Commission of India, a swift and fair justice delivery system is equally important to create a deterrent environment which entails wide range of reforms like increasing the number of judges, better prosecutors, implementing case-management systems, strict guidelines for the grant of adjournment, etc.

On the other hand, the governments at the state and central level need to upgrade the system of combating the rape culture that condones and encourages rape — by imparting age-appropriate sex education, by aggressive advertisement campaigns to increase awareness and stimulate conversations about gender bias, everyday sexism, misogyny, stereotypes, consent and equality, and by making concerted efforts to promote gender-sensitive child-rearing practices.

In addition, a social movement needs to be launched to educate children about good touch and bad touch, identify such perpetrators and hand them over to the law enforcing agencies. It is imperative to emulate the best lessons and practices prevalent anywhere in the country or outside, to improve police efficiency and sensitivity while dealing with such victims.

The writer is a Supreme Court advocate.