Death for rape is no solution

Social scourge: Ordinance could prove counterproductive, crime may go unreported

The Criminal Law (Amendment) Ordinance, 2018, brought changes in certain laws related to the rape of minors. The most contentious amendment has been for the rape of a girl below 12 years of age. The ordinance, among other punishments, has provision for death penalty. But most incidents of child abuse occur within the family by a known person. In such a situation, will a victim or the parent report the crime, knowing it could result in death? The ordinance at best seems hasty and a knee-jerk reaction to the public anger over the Kathua and Unnao cases.

It is better to err on the assumption of innocence than on the assumption of guilt.” In the recent years, while the courts seem to be inclined to follow this principle of criminal law, the legislative intent has been the opposite.

Criminal laws introduced lately, including the Criminal Law (Amendment) Ordinance, 2018, mark a conscious shift away from this paradigm. The underlying current has been “we need to be perceived as being on the side of the victim only”. Both positions appear correct and therefore the question is how to balance the rights of the victims without compromising on the principles of natural justice, fair trial and rule of law enshrined in the Constitution.

Without getting into the impact of introducing measures such as death penalty for child rape, it should suffice to acknowledge that in the event of acquittal or conviction, any one of the two parties is always found questioning the investigation carried out and uses that argument to appeal against the decision.

The public, too, is divided in their opinion and so are lawyers and judges. This should be a reason good enough to defer from introducing harsh sentences that can take away a person’s life merely on the basis of how a case is argued in court or how it gets highlighted in the media.

When the Protection of Children from Sexual Offences (Pocso) Act was enacted in 2012, it introduced minimum and maximum mandatory sentences, going up to life imprisonment for sexual assaults categorised as “aggravated” on the basis of age of the child, relationship between the child and the accused, position of power and authority enjoyed by the accused over the child, the physical and mental condition of the child, repeated assault, assault by more than one person, assault coupled with murder and such other factors that have a greater shock value for the common mind.

Another important change brought in the law was that the maxim of “presumption of innocence until proven guilty” changed to “presumption of guilt until the accused proves himself innocent”. The shift in the burden of proof coupled with the introduction of the minimum mandatory sentence were justified on the grounds that victim’s rights need to be acknowledged and protected. The law was good enough to restore a sense of justice had it been implemented in letter and spirit.

Clearly, people do not know this and their satisfaction with the system is so low that every time a case is highlighted for the brutality it entails, a demand is made out to change the law and make it more stringent.

One wonders what will the next gruesome case lead to, now that the worst of judicial remedies have been brought into the law. Perhaps it will be a law that allows public flogging and lynching; a law that will take the criminality away from public lynching and justify one crime to deal with another crime. We are indeed getting there soon and already on the path of going back to the dark ages.

While retribution is at its best today, in the name of protecting victim’s rights and making their experience with the criminal justice system positive, the new Criminal Law (Amendment) Ordinance, 2018, imposes a mandate on the investigating agency to complete the probe and submit the final report under Section 173 of the CrPC within two months from the date of registration of a case.

It also requires that trials be completed within two months of the police filing the charge sheet. Such mandates are nothing but a far-fetched idea and a distant dream. While these new mandates could be sufficient to gain public attention and the government can pat its own back, the reality is that these are designed to fail in the absence of a political will to invest in areas requiring attention.

A little research and discussion would have informed the government that among the reasons for adjournments that delay the completion of a trial are incomplete documents filed by the police and delay in obtaining the Forensic Science Laboratory (FSL) reports.

It goes without saying that the prosecution is unable to further its case in the absence of FSL report, which is a crucial piece of evidence. No heed was paid to the fact that our police force is understaffed, lacks training in necessary investigation skills and state of the art technologies that can enhance their efficiency as well as results of the investigation.

The government also forgot that the FSLs in the country are not adequately equipped and suffer from severe staff shortage. In a reply to a question, the home minister informed the Lok Sabha that as on January 31, 2015, there were only 30 Central Forensic Science Laboratories and 50 Regional Forensic Science Laboratories in the country with a total of 6,206 pending cases at the Central Forensic Science Laboratories alone (http://mha.gov.in/MHA1/Par2017/pdfs/par2015-pdfs/ls-030315/1329.pdf).

If rightful conviction and swift justice are to be the goals of a law like the Pocso Act, it does not require the stipulation of a time frame within which the trial needs to be completed. It requires special courts in every district that is equipped with child-friendly infrastructure and are exclusively dealing with Pocso cases instead of holding multiple charges.

As per a study conducted by CCL-NLSIU in Delhi, where special courts have been duly constituted and are exclusively Pocso courts, only 69% of cases are disposed within one year from the date of cognisance by the court. In the overall analysis of the five states under study, only 29% Pocso cases were disposed-off within one year from the date of cognisance by the court.

With systemic gaps glaring at our faces, the provision of a death sentence in cases of rape of girls under 12 years of age is problematic and reflects on the way the governments chose to make gains from mass emotional outbursts instead of providing the much needed and viable solutions.

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(Bharti is co-director, HAQ: Centre for Child Rights and Shailabh is programme coordinator, Access to Justice and Restorative Care, HAQ: Centre for Child Rights)