New Delhi: On Tuesday, the Supreme Court stayed the death sentence award, pending an appeal, given to a man convicted for the rape and murder of a four-year-old girl in Madhya Pradesh.
In December last year, the state assembly passed a Bill mandating death penalty for those who are convicted of raping children below the age of 12 years.
While Madhya Pradesh was the first state to pass a law of this kind, Haryana, Rajasthan and Arunachal Pradesh did the same soon afterwards. Delhi and Jammu and Kashmir have also expressed their resolve to pass such a Bill. In July this year, the Lok Sabha too followed suit – passing a Bill to make the death penalty applicable to those convicted of raping girls below the age of 12 years. Before that, in April, after the Narendra Modi government was accused of apathy and inaction on the Kathua and Unnao child gangrape cases, the Centre passed an ordinance prescribing the death penalty for those guilty of raping children under 12 years of age.
In the seven months since Madhya Pradesh passed the Bill, as many as 12 people have been given the death penalty in child rape cases. In one case, Indian Express has reported, the trial lasted for only five days.
According to the newspaper, Rajkumar, the accused in this case, had a hard time finding a lawyer due to “an informal understanding among lawyers in district courts across the state not to represent the rape accused”.
Says Santosh Paroha, the vice-president of the Katni District Bar Association, “No one should represent accused involved in such crimes. We did not pass a resolution but it was decided when lawyers spoke to each other. Next time we will pass a formal resolution.” So, like in other cases where a family can’t find or afford a lawyer, Rajkumar was provided one under the free legal aid programme.
Cases usually get assigned to lawyers who at that time are free to take them up. Rajkumar got B M Singh Rathore, 52, a lawyer with 20 years of practice. He does not have an office and operates from Bar Hall No. 2 at the District and Sessions Court. He also operates from a corridor in the old court building, where two rickety chairs are chained to his table. He says there are months when he has 10 clients at a time and days when he has none. Because trials last long, advocates like him make about Rs 50,000 per trial, he says.
Rathore says he got a call on July 20, the same day the chargesheet was filed against Rajkumar in the Special Court that deals with cases under the POCSO (Protection of Children from Sexual Offences) Act. Among the courts operating on the District and Sessions Court premises, the Special Court was set up four years ago, and has hundreds of cases before it, with no exact record.
The court was closed for two days after charges were framed against Rajkumar. Between July 23 and July 25, 20 witnesses were examined, and on July 26, Rajkumar’s statement was recorded. The verdict was given at 3 pm on July 27. “I did not even get time to speak to the accused,” complains Rathore. Adding that Rajkumar wasn’t given sufficient opportunity to defend himself, he says, “I have never seen witnesses turning up so fast. Often they do so only when summons are served.”
Death penalty a deterrent?
While several people are opposed to capital punishment in general on moral grounds, several have also raised questions about its ability to act as a deterrent. Women’s rights groups and criminologists have repeatedly maintained that the answer to heinous sexual crimes against children and women is not the death penalty but the strengthening of investigation and prosecution process so that the perpetrators can actually be convicted of their crimes in the first place.
According to data gathered by the National Criminal Research Bureau (NCRB), the conviction rate of those accused of sexual crimes against girls in 2015 was only 34%. Of the 5,361 trials completed in 2015, 1,843 ended in conviction, while 3,518 led to acquittal or discharge of the accused.
As the Unnao case demonstrated, it is often the refusal of the police to register a complaint and investigate the crime properly that is the primary obstacle in the path to justice. Even if an investigation is launched, the political connections of the accused can lead to pressure on the police to back off the case.
Writing in The Wire, lawyer Vrinda Bhandari argued that the death penalty may actually lead to rapists killing their victims so they have less chance of getting caught. It could also lead to victims being more hesitant in reporting cases, especially if the perpetrator is known to them – something that has been repeatedly argued in the discourse of sexual violence against women.
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 follow. 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 the offender is known to the victim, either as a family member, or neighbour, co-worker etc. It is important to remember that these numbers are 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 rapists, since the fear of the dire and irreversible consequences facing the perpetrator may increase the pressure on the victim from her family to maintain silence, or to turn hostile during trial.
An earlier version of the article incorrectly said that the court ‘set aside’ the death sentence instead of staying the execution. The error has been corrected.