Inclusion of the death penalty in light of the POCSO (Amendment) Bill, 2019

  • Khushboo Sharma

Introduction

Crime against children has always been a reason for great distress. In India, the protection of child rights is regulated by the Protection of Children from Sexual Offences Act 2012[hereinafter referred to as the POCSO Act]. It is gender-neutral legislation which defines a child as any individual below 18 years of age. The POCSO Act seeks to protect children from acts involving sexual assault, including penetrative sexual assault, sexual harassment, use of children for pornographic purposes, and trafficking of children for sexual purposes.

On March 13, 2020, the center notified a new set of rules to effectively implement the amendments made in 2019to the POCSO Act. A few of the amendments include the provision of ‘Death Penalty’ as a punishment. In this article, the analysis focuses on how the effort to make the act more stringent by the inclusion of the death penalty, could prompt to be a fallacious argument in respect to act as a deterrent and to meet the standard of justice to reduce sexual offenses. For that purpose, the article has been divided into four parts. The first part discusses the point of debate. A critical analysis of the legal aspects involved in the issue has been provided in the second part which has been further divided into sub-parts that deal with the socio-legal aspect of the death penalty, the procedural lacuna involved, and the deterrent effect specifically in cases that fall under POCSO. The article concludes with certain suggestions that should be taken into consideration by the respective bodies.

POINT OF DEBATE

The government pronounced that 2019 amendments were introduced to discourage the trend of child sexual abuse and creating a deterrent effect by incorporating stringent penal provisions. This came up by looking at the tremendous rise in the child crime rates, especially after the Kathua gang rape and murder case. Thus, it was followed by an objective to safeguard the interest of vulnerable children in times of distress and protect their safety and dignity. As a consequence, the minimum punishment was changed to 20 years and the death penalty was introduced among other changes aimed at reducing the number of cases relating to child sexual abuse. While we are discussing the death penalty it is important to talk about Section 6 that allows a death sentence for all types of aggravated penetrative sexual assault by a person.

The Union justified the punishment by referring to the judgments of the Supreme Court wherein the court had held in Macchi Singh and others v State of Punjab and Devender Pal Singh Bhullar v State, N.C.T. of Delhi And Anr that the death penalty could be awarded only in the “rarest of the rare” cases. The intention behind the bill is creditable, however, it fails to consider the fact that the introduction of the death penalty in cases of child sexual abuse is a drastic step and might not lead to a deterrent effect.

REASONS WHY THE PROVISION OF DEATH PENALTY COULD BE COUNTER-PRODUCTIVE?

In the opinion of many, the death penalty serves as a retributive and deterrent measure and underlines the ‘tit for tat’ principle. One cannot deny the fact that the death penalty restricts people from committing offences at some level. However, the above stated seems to be bizarre when we look upon the reasons stated below.

SOCIO-LEGAL ASPECTS

The report of National Crime Records Bureau (NCRB) stipulates that in cases falling under POCSO, 94.6% of all the cases of sexual harassment and rape of children are committed by people who are known to the victim. This implies that the prospect of the death penalty being imposed might weigh upon the child who may not be comfortable with sending a known person to the hangman’s tree and this may prove to be a substantial burden on the child’s mind. Additionally, it is significant to argue here that the death penalty of the convict might give a fragmentary relief to the victim since a lot of victims go through the post crime victimization in society. This refers to the society’s contemptuous actions involving the “victim-blaming” phenomena. This forces the victim to go through another treachery of atrocious mental abuses, especially by its own people.

India is a comparatively socially backward country with most of its population having an orthodox mindset and to preserve the family’s reputation, family members could forbid children from exposing the offender.This might severely impact the number of cases being reported. The death penalty compounds opposition from family members as the family might not want that for a known person. A National Law School, Banglore survey depicts that in 67.5% cases, the alleged victim and the family members turned hostile and in mere 26.7% cases, these people agreed to testify against the accused. On another note, Advocate Shailabh Kumar suggests that the provision of the death penalty raises the probability of the accused murdering the victim to avoid getting caught.Thus, turning the case from “rape and leave” to “rape and murder”.

PROCEDURAL ISSUES

On another note, the provision of the death penalty fails to consider the fact that the inclusion of the death penalty would eventually weaken the child-friendly procedures. Section 33(2), the POCSO Act requires the special public prosecutor to convey to the special court the questions to be put to the child during the inquiry. However, the said provision is not duly recognized by the defense counsel and the child continues to be questioned by them. Therefore, the defense counsel to get away with the death penalty would tend to ask direct questions which might be embarrassing. It would add to the already existing trauma of the child.

Section 28(2) of Crpc, provides that to grant the death penalty, the order has to confirmed by the high court. This implies that even if the convict does not prefer an appeal then also the case would go to the high court. It has been observed that in 28.9% of the cases to which the trial court awarded the death sentence, only 4.3% of those cases qualified for the same when confirmed by the high court. This indicates that it would only lengthen the trials further. Also, courts look for stronger evidence when it comes to ordering the death penalty because the judges themselves do not agree to send someone to the gallows in the majority of the cases.This was reiterated in Raju v. State of Haryana wherein the SC commuted the death penalty to life imprisonment stating that it does not fall under the ‘rarest of the rare’ case. It can be asserted from the above-mentioned instances that the lengthy process of law provides adequate time to the accused to intimidate the victim and thus, to succeed in an attempt to backtrack their complaint which further leads to a reduction in the reporting of the cases.

DETERRENT EFFECT

Certainty plays a significant role in deterrence than severity. It specifically means that it is the certainty of being caught that averts an individual from doing wrong and not the stringency of a punishment. Incarceration as a method for incapacitation is when an individual is restricted to commit any crime by putting him behind the bars whereas when the individual apprehends the consequences of a crime on being caught before even committing it and thus, abstains from committing crimes in future, this is incarceration as deterrence. Indian laws manage to achieve the former but not the latter.

The Justice Verma Committee that was constituted after the brutal Delhi gang rape of 2012 also opposed the inclusion of the death penalty as a provision stating that the “death penalty to act as a deterrent is a myth”. Moreover, none of the studies that have been carried out documenting the relationship between the death penalty and crime rate have been able to show that the death penalty has proven to be more effective as a deterrent than any other punishment. This was reiterated in Triveniben v. State of Gujarat. Moreover, after the addition of the death penalty, punishments of lesser magnitude no longer feel like severe enough to the offenders, in this manner, leaving no sentiment of regret on their part and consequently, prompting the expansion in the crime percentages.

CONCLUSION`

The law must aim to pay heed to the fact that the vulnerabilities of a child differ from age to age. A child matures differently in terms of mental and psychological advancements. Thus, the mental capacity of an infant differs from that of a pre-teen to older adolescents. Therefore, the impact of the harm and abuse caused to them varies. The law must consider these factors and avoid treating 0-18 years as an unvarying group. Since the cause of rape is variable and subjective, the short term amendments could lead to some short term reduction. However, to get impactful results, the government must acknowledge the loopholes in enforcing the law and should take adequate action to close the widening gap between principle and practice rather than diverting the rage of the public.

The author is a first-year law student at NLIU, Bhopal.

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