Is death penalty for minor rapists a viable solution? - by Nirupama V Shankar
In April 2018, the nation woke up to the horrific news of the rape of an 8-year-old girl in Kathua and a year old rape case from Unnao that resurfaced, post which there was an outburst on social media from all ends calling for changes and wondering why in a country where goddesses are worshiped with so much… Read More »
In April 2018, the nation woke up to the horrific news of the rape of an 8-year-old girl in Kathua and a year old rape case from Unnao that resurfaced, post which there was an outburst on social media from all ends calling for changes and wondering why in a country where goddesses are worshiped with so much fervor, that innocent little girls cannot be protected?
The binding factor in these cases was the fact that the prime accused, where men in authoritative positions exerted their prowess, over a young girl. What else unites these cases, is that it took more than several months for some amount of light to have been shed upon what actually took place, despite the rapes occurring months ago!
The outcome resulted in candlelight vigils and the explosion of late night TV hosts regarding the safety of women and children in our country. The last time the country was this collectively shaken was in December 2012, after the gang rape of a 21-year-old in Delhi. It’s been nearly 5 years, and all that has changed; is that the age of the victims has just become lesser. Despite prominent amendments made after the Nirbhaya case in the Indian Penal Code and the Code of Criminal Procedure, the number of sex crimes against women and girls has only taken an upward rise.
The effect of the Kathua rape case has resulted in the President Ram Nath Kovind to pass an ordinance awarding a death penalty to those who have raped girls under the age of 12. The action taken seems to be more of a reactionary measure to the questions being raised on the safety of women in the country. Moreover, the ordinance just creates a dilemma.
WHY ARE THERE SO MANY RAPES?
For long, and even today, women in India continue to be oppressed and are constantly victim shamed for actions that result in their rape. This is nothing but a result of India’s predominantly patriarchal mindset. For ages, women have been considered as the inferior beings in our country and culture. Despite the rapid progression of our urban cities, these rape cases that we hear about everyday is sufficient to prove that these ideologies have not exactly penetrated into all parts of India.
Sexual violence against a woman is presumed a ‘punishment’ for women who don’t conform to society’s rules and obligations. It is not that there is a strong sexual urge among men, but rather the desire to prove and exert their superiority over, what is presumed as the ‘weaker sex’.
This ideology has been reiterated multiple times by several political and religious leaders on numerous platforms. The Indian culture is so deep-rooted in the shaming and blaming of its victims, that no amount of stiff and severe laws and rules will be amount to any change unless there is a wide advancement in the basic thinking process of the minds of men of this country.
HOW VIABLE IS THE DEATH PENALTY?
The number of rape cases that come to light in India is minimalistic. It is a taboo, especially if it is the rape of a minor, to publicly reveal outside because more often than not, it is a trusted family member or known associate being the rapist. The National Crime Records Bureau (NCRB)‘s “Crime in India 2016” report reveals is that in 94.6 percent cases, the perpetrators were none other than the victim’s relatives including brothers, fathers, grandfathers, sons or acquaintances. Considering this fact, it is more than likely that the rape of a child will be kept hush by the family, and complicate matters. The ordinance, in turn, will have an opposite effect, as now only a lesser number of cases will come to be known in public purview.
More than a 100 rapes occur in India on a daily basis and of which nearly 40% are rapes of a minor, and considering that most cases aren’t reported and the perpetrators are not identified, how is it possible to award a death penalty to all rapists? Even the basic full imprisonment is not awarded stringently, and in several cases, the rapists are out and about within a few months.
There has been a never-ending debate regarding the actual effectiveness of a death penalty and its alternative, the life imprisonment. The Law Commission of India, in its report on the death penalty, has said that after many years of research and debate; a view has emerged that there is no evidence to suggest that the death penalty has a deterrent effect. The Delhi High Court has posed several questions regarding the feasibility of the ordinance. If the punishment for both murder and rape is same, it is a huge consequence. Can you imagine now, how many offenders would allow their victims to survive now that rape and murder have the same punishment,” the bench observed. “Have you been to the root cause of the crime, or it is an effect of the public outcry,” the bench noted. The bench further observed that most of the offenders are close family members. “Will the family members come out and depose against their relatives family?”
The questions asked have no valid answer. In a litigious country like India, the procedure to approach the courts has always been cumbersome. The police are often ill-equipped to conduct the investigations and there is no evidence of the crime. These are some of the reasons that rape convictions are rarely made.
Recently, self-styled ‘godman’ Asaram was convicted to life imprisonment for the rape of a minor girl in 2013. After the conviction was made, his supporters claimed that it was ‘blasphemy’ and that there was no way their ‘god’ could have done so. The Hindustan Times reported that the judge in the Asaram rape case, Madhu Sudan Sharma, was transferred as joint secretary (law) in the law and legal affairs department in Jaipur. If a judge has to be transferred every time such a solid conviction is given, what amount of faith will the common man have in the judicial system?
In a country where rapes occur left and right, and where the rapists are family; or men with high political influence, it is a task in itself to make the rape charges stick. Awarding a death penalty is definitely a way to curb the number of rapes that take place, but in a country where the law is implemented in a much harsher fashion and where getting out of jail is not determined by the extent of the parent’s purse. The ordinance states that that investigation and trial of all cases of rape have to be necessarily completed within a period of four months. It is highly improbable that it will be completed considering how there is a lack of framework and inadequate facilities at the grassroots level.
The government has to invest in sex education awareness and in gender equality programs. The basic stereotypes that ‘boys are strong’ and ‘girls are weak’ should be scrapped from textbooks. The police and court should be more sensitized towards rapes and should be given better training to handle these scenarios. Better investigations are the need of the hour, but more importantly, it is high time that the country as a whole changes its mindset to recognize women and girl as equals and not as an avenue to express dominance and supremacy.
By – Nirupama V Shankar
(The Tamilnadu Dr. Ambedkar Law University)
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