Responding to public outrage over the horrific rape and murder of an eight-year-old girl in Kathua in Jammu and Kashmir, the Indian government cleared the Criminal Law (Amendment) Ordinance 2018, which was promulgated by the president on the April 21. The ordinance has, controversially, introduced the death penalty for rape of a girl below 12 years of age, while also increasing the mandatory minimum sentences for rape. It is expected that once parliament is in session, the ordinance will become a law.
Many have celebrated this short-term “aggressive” response, and in fact, the chairperson of the Delhi Commission for Women, Swati Maliwal, even went on an indefinite hunger strike to demand the introduction of such a drastic punishment to “ensure safety” of the girl child. Unfortunately, it is far from clear whether the ordinance will achieve this goal. In fact, the ordinance is deeply troubling on many levels.
There is no doubt that child sexual abuse is a serious problem in India, and is, in fact, on the rise. Figures available with the National Crime Records Bureau (NCRB) reveal that reported incidents of child rape have witnessed a sharp spike of 82% from 2015 to 2016. The ordinance seems to place emphasis on the deterrent effect of introducing capital punishment in helping to reduce incidents of child rape, and in ensuring speedy justice for the victims. However, it is likely to have the opposite effect.
Indian law already provides for the death penalty as the maximum punishment in a case of murder, and for repeat rape offenders. Deterrent theories of sentencing are predicated on the rationality of offenders, i.e. they presume that the fear of possible death will deter a would-be offender from committing a serious crime. Assuming this is correct, the result of introducing the death penalty for child rape would be that the law now provides an incentive for the perpetrators to rape and then murder their victim – after all, it eliminates an incriminating and often solitary witness to the crime at no additional cost.
Moreover, in India, the efficacy of deterrence in reducing crime is deeply doubtful, considering that the certainty of punishment itself is very low for a variety of reasons. First, due to social stigma, deep-seated patriarchy and a long drawn and often humiliating investigation and trial process, there is under-reporting of incidents of rape and sexual assault.
The victim (often at the behest of her family) is simply unwilling to report such crimes and live through the public ordeal and possible reprisal that follows. This is particularly so, because 94.6% of rapes (as per the 2016 NCRB ‘Crime in India’ data) are cases of acquaintance rape, i.e. where offender is known to the victim, either as a family member, or neighbour, co-worker etc. It is important to remember that these are only the percentages of the total 38,947 reported cases, and probably underestimate the prevalence of acquaintance rape.
The introduction of death penalty for child rape will, in all likelihood, increase the hesitation of the victim to prosecute such cases, since the fear of the dire and irreversible consequence on the perpetrator may increase the pressure on the victim from her family to maintain her silence, or to turn hostile during trial.
Second, the process of investigation and trial for rape cases is also problematic in India, apart from being unduly delayed (the pendency rate for all child rape cases in courts was 89.6% in 2016). The investigation begins with the humiliation and insensitive questions often faced by the victim while getting a case registered in the police station, by officers with no training in dealing with victims. Even during trial, there is inadequate counseling, a lack of proper legal and psychological support, and a practice of both overt and covert victim blaming. All these factors contribute to victims turning hostile or refusing to prosecute further during the course of the trial, leading to low conviction rates, diluting any possible deterrence, which is relied upon by death penalty advocates so strongly.
Interestingly, even in the US, where the death penalty is constitutional, the Supreme Court in Kennedy vs Louisiana (2008) struck down a law that authorised death penalty for child rape for violating the Eighth Amendment’s prohibition against “cruel and unusual punishment”, since, among other things, it eroded the distinction between child rape (where a victim did not die or death was not intended) and the severity and irrevocability of murder.
A false dichotomy
The other rationale, which is cited by those who support the death penalty, relies on the retributive theory of sentencing, where the punishment satisfies society’s cry for justice. However, such a theory does not give adequate importance to the role of the state in pursuing such vengeance. The state itself risks becoming a hostage to public opinion in such a scenario, and ignores the importance free societies have given to the dignity and life of every individual.
After all, a retributive theory can very easily lead to a slippery slope where death penalty increasingly becomes the norm for a greater array of crimes and eventually threatens the core of a “rights culture” that is present in society. Justice Kennedy in his majority opinion in Kennedy vs Louisiana, rejected the retributive theory to justify death penalty, observing that “It is the last of this retribution that most often can contradict the laws’ own ends…. When the law punishes by death, it risks its own descent into brutality transgressing the constitutional commitment to decency and restraint”.
Additionally, it is important to remember that, often, a false dichotomy is created with the death penalty, on one hand, and acquittal on the other. Instead, the debate is at the margin, namely, whether death penalty is necessary over and above life imprisonment.
On its face, the ordinance seeks to provide for speedy dispensation of justice, by requiring that investigation in child rape cases be completed within two months (from the earlier three months) and appeals in rape cases be disposed of within six months. However, such quick fix solutions that merely set out timelines without improving the underlying judicial and investigative infrastructure remain mere paper remedies, and in fact, come at the cost of due process. There is high pendency amongst the Indian judiciary, which does not have the capacity to deal with the burgeoning caseload. By emphasising speed over quality, and setting artificial timelines, there is a worry that the quality of police investigation will suffer, and the rights of the accused will be compromised.
The points I have raised above are distinct from the philosophical/empirical concerns over continued retention of the death penalty in India in the first place. The Supreme Court of India has recognised that that the confirmation of the death sentence depends on the personal predilection of the appellate judges constituting the bench and its application is subjective and arbitrary. Simultaneously, empirical studies have shown the disparate impact of the death penalty on marginalised and vulnerable groups. Given these well-recognised problems with the application of the judicially evolved “rarest of rare” standard that justifies the use of death penalty in India, it is important to examine whether the 2018 ordinance will only exacerbate these problems.
Finally, it is important to talk about the procedural aspect of promulgating this ordinance, which was passed as a way to quell the public outrage over the spate of publicised incidents of rape, and as evidence of government “action”. There was no parliamentary deliberation or public discussion about the need for such a punishment, or whether the introduction of capital punishment in the statute books leads to a reduction of crime, or whether the death penalty will serve a penal purpose that cannot already be served by punishments such as life imprisonment.
This is unlike the debate generated in 2012, when the gruesome gangrape and murder of a young woman in Delhi gave rise to similar demands for the introduction of the death penalty. In response, the government set up a committee of experts, headed by a retired Chief Justice of India to suggest amendments to the criminal law. After extensive consultations and deliberations, keeping in view the global movement towards abolition of the death penalty and India’s consequent human rights obligations, the committee concluded that introducing the death penalty in cases of rape would be a regressive step in the field of sentencing. Instead, it recommended changes in the definition of rape and sexual assault, enhanced sentences, guidelines for medical examination of sexual assault survivors, and police reforms. Based on these suggestions, the government introduced various other amendments to the criminal laws of the land and did not bring in the death penalty.
None of this is to discount the seriousness of rape as a crime. What needs to be done, however, is not a short-term, headline-grabbing fix of amending the law, but rather, to engage in finding a long-term solution that reforms the investigative and judicial process and changes cultural and social norms that often justify rape culture. Only then will we have truly saved our children.
Vrinda Bhandari is a Delhi-based lawyer.