Amid an uproar after rape cases of minors in Kathua and Surat which shook the nation, the Union Cabinet on April 21st, 2018 approved an ordinance allowing courts to award the death penalty to those convicted of raping a minor. According to the ordinance, a life imprisonment or a death sentence will be awarded in a gang rape of a girl below 12 years and an imprisonment for minimum 20 years – for a rape of a girl less than 16 years – which can be expanded to the life imprisonment. Minimum punishment in case of rape of women has also been increased from the rigorous imprisonment of 7 years to 10 years, extendable to life imprisonment. The Ordinance also includes speedy investigation and trial to be completed within two months.
Most of the people calling for the capital punishment are doing so out of rage and they fail to explain whether Capital punishment is meant for the reform or the retribution. The idea of retribution is primitive in a civilized society whereas the reform debate makes some sense. Those calling for the capital punishment claim that it is a necessary deterrent. But, is it?
Unfortunately, in the countries, where there are provisions of capital punishment for the rapists, rape cases are far from getting control. Also, capital punishment has not proved to be a deterrent in other cases. Currently, courts in India have the provisions to award death sentences for the serious offences like murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government, and abetting mutiny by a member of the armed forces. We can easily see how the number of above crimes still don’t show any sign of abating. On the other hand, in the decades after Indian Independence, we have observed that the decline in the murder rate has somehow coincided with a decline in the rate of executions.
Secondly, the court still has to award the capital punishment in the “rarest of rare cases”. Among all cases of rapes, around 5.4% were committed by juveniles in the year 2014. As per a data by Union home ministry, between January 1 and December 31, 2016, some 2,054 juveniles were arrested for rape (one every 4.2 hours) and almost 1,627 others were caught for assaulting women. Juvenile Justice (Care and Protection of Children) Act, 2015 which – calls for the juveniles from 16 to 18 years of age to be tried as an adult under some circumstances- clearly states that no juvenile will be awarded capital punishment or life imprisonment. In this case, the arbitrary sentence becomes a possibility.
As we have seen in the past, people have been implicated falsely (even in the cases of terrorism), tried in the court, awarded sentences but later acquitted. Many convicts are not even given a fair trial, or the defendant provided by the government is either incompetent or seems not to even care. A 2016 study by the National Law University has shown that the 75 percent of all death sentences and 93.5 per that for terrorism were given to Dalits and Muslims. Many analysts, that I talked to, argue that the new law would only exacerbate the situation while maintaining that Dalits and Muslims convicts are often not given a fair trial.
The stigma attached to the rape leads to a less reporting of the crime. Also, the reporting of these cases remains a bothersome task as many a time Police have also been seen to harass the victims and denying to register an FIR. In many cases where the perpetrator of the crimes is a powerful person, Police not only refuse to acknowledge the report but also assist these alleged criminals in harassing and hunting the victims. The fear of Capital punishment might even endanger the lives of the victim. In India, the conviction rate in the rape cases of women stands around 24 percent and 20 percent under the POCSO Act. While most of the rapes go unreported, the National Crime Reports Bureau data shows that 95% of the rapes are committed by family members. Fear of capital punishment to a family member might lead to the lesser reporting of cases and a much lesser conviction.
The Way Out
The only way in controlling rape cases would be strengthening and enforcing the laws already in use. Making the environment enabling and supportive for the victims to report the rape would be the very first step in controlling rapes. We have witnessed numerous cases in which security personnel are themselves involved in rape cases such as in troubled regions like Kashmir, North East and Central India. Besides, there are also rape cases involving Police officers and powerful people in relatively stable regions. For this, ensuring the safety of the victims and witnesses, and rehabilitation for the victim are necessary efforts.
Secondly, sense of ensured justice to the rape survivor is of utmost necessity. Not only is the conviction rate low in the courts, victim shaming and using victim’s sexual history in defending rape accused is still prevalent in the courtrooms. During harsh and vulgar cross-examining, victims often fail to get justice. Two finger test – in which the examining doctor notes the presence or absence of the hymen, and the size and laxity of the of the rape survivor’s vagina to confirm whether girls and women are “virgins” or “habituated to sexual intercourse”- was struck down by the Supreme Court in 2016 terming it a practice violating rape survivor’s right to privacy, physical and mental integrity, and dignity. It had also asked the government to provide better medical procedures to confirm sexual assault. Almost two years after the verdict, two finger tests are still being used and the government has failed to provide better medical facilities. Citing the above factors, a sensitive criminal justice system becomes a necessary tool.
Moreover, in cases of rapes during communal tensions (specifically targeting Dalits and Minorities) there are still chances of acquittal of the accused as the provisions of IPC and Criminal law are inadequate in addressing mass crimes because these laws focus on the crimes against individual and not against a group or collective. Thus, in these cases; provision of pinning responsibility on the military and political powers who fail to curb communal tensions becomes necessary.
Thirdly, a speedy and fair trial in these cases is imperative. This would not only help the rape survivors but also those falsely convicted in the rape cases.
Fourthly, the awareness regarding the rapes and campaigns for eliminating the stigma attached to it is very important. Due to sustained awareness campaigns, an increase of 763% in the reporting of rapes was observed between 1971 and 2008, and it has substantially increased since 2012 Nirbhaya Case. The most alarming fact is that the number of reported cases is only a tip of the iceberg. Therefore, mass campaigns with the use of various media can help in this regard.
Gender sensitization programmes are also necessary part in the awareness campaign. Inclusion and necessity of sex education at the Primary level will help in creating a generation of sensitive citizens. Also, this would help the children in determining the sexual abuses being committed on them and thus in reporting them.
Fifthly, the ordinance also does not consider the marital rape as a form of sexual assault. Unless the marital rape would be considered as a rape, many people would fail to consider the rape outside marriage a crime.
Sixthly, the government should push for the safe spaces for the students and working women both in the formal and informal sector. While the government’s Open Defecation Free scheme has delivered toilets to millions of citizens, there are reports that its usage remains a distant reality, which continues to pose risks to Women safety. A study has shown that almost 40% of the schools in India lack separate toilets for Girls and Boys. While most women working in the informal sector lack separate toilets or the access to toilets, situation for the women even in the formal sector is no good either. And then, there is a lack of security wings for the victims of sexual violence in both the sectors.
The government must establish a dialogue with women from across class and communities to ensure the safety and security to all women. Understanding the ground reality would help in controlling the rapes.
Hanzala Aman is a columnist writing for HW News Network. The views, opinions, positions or strategies expressed by the authors and those providing comments are theirs alone and do not necessarily reflect the views, opinions, positions or strategies of HW News Network or any employee thereof. HW News Network makes no representations as to accuracy, completeness, correctness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use.