Death penalty no panacea for rape

Every time a ghastly rape takes place in India, the voices demanding death for culprits become louder, especially if the victim is a child. Last month, legislators in Haryana, Arunachal Pradesh and Rajasthan passed bills that those guilty of raping children below 12 years of age be hanged to death.

Earlier, Madhya Pradesh passed a similar bill.

Union minister Maneka Gandhi has gone on record to say that Protection of Children from Sexual Offences Act (POCSO) would be amended to provide death penalty for rape of children below 12 years of age.

The necessity of death penalty in cases of rape was examined by the Justice JS Verma Committee, constituted following the Nirbhaya case. In its report, the committee observed, “…in the larger interests of society, and having regard to the current thinking in favour of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness, we are not inclined to recommend the death penalty.”

Despite this view, the government, through the Criminal Law Amendment Act, 2013, prescribed death to an offender who, in the course of rape, causes death of the victim or makes the victim to be in a persistent vegetative state. Death penalty was also prescribed for repeat offenders.

Experience has shown that harsher punishments have not resulted in reduction of such brutal crimes.

As pointed out by Verma Committee, the question of abolition of death penalty has been engaging the country for quite some time. Two years after the Verma Committee report, the Law Commission headed by Justice AP Shah, in its 262nd report, recommended that “the death penalty be abolished for all crimes other than terrorism-related offences and waging war”.

Sentencing arbitrariness has been a strong point in favour of abolition of death penalty. Even though clearcut guidelines have been laid down by the Supreme Court for the award of death penalty, various trial courts in the country differ in their interpretation of what is “rarest among the rare cases.”

Considering the media hype that cases like Nirbhaya or Kathua generate, the likelihood of “erring on the right side of law” can happen while sentencing “sensational” rape cases.

Trial courts may be more inclined to award death, rather than life term, in such cases.

Since most convictions in such cases are based on circumstantial evidence, subjectivity might play a major part while sentencing. This results in sentencing arbitrariness.

Consider the case of Dhananjoy Chatterjee, who was convicted for the rape and murder of a 12-year-old schoolgirl in 1990. It was reported that when he went to the gallows in Kolkata on August 14, 2004, he told his hangman, “I am innocent, they are all killing me”.

This author has interviewed over a dozen convicts who were awarded death penalty for the offences of rape and murder. Three of them have been sentenced for repeated offences.

During the interviews, none of them admitted to the offences and claimed that they were falsely implicated and wrongly convicted.
While one cannot vouch for their claims, one needs to consider the tremendous stress under which investigators in such cases work. The pressure to bring results can sometimes make investigators falter.

The fact that media breathes down the neck of the investigator 24x7, offering unsolicited advice and clues, can also result in faulty investigation. Many a time, investigators are changed midway during the course of investigation, which may result in mistakes and wrong persons being convicted.

Two cases from America need mention here. Levon Brooks and Kennedy Brewer were sentenced to death in different cases of rape and murder of children. After spending long years in prison, both were proved innocent and were released in 2008. There may be similar convictions in our country.

The Verma Committee also considered alternative modes of punishment for rape-accused, such as chemical castration by using drugs having the effect of controlling libidinous urges and ruled it out saying that it would cause dangerous side effects.

The proposed prescription of victim’s age of 12 years or below for awarding death penalty is beset with problems. Why should an accused who rapes a 13-year-old child be treated differently than the one who rapes a 12-year-old? How would the courts determine the age of the victim correctly when in our country a person’s birth particulars are not correctly recorded?

Difficulties would also be faced in cases where the accused is related to the victim.

In a case supervised by this author, a 10-year-old child was raped by her father. None was willing to depose against the accused, who was the family’s sole bread-earner.

When the world is moving towards abolition of death penalty, the existing provisions in criminal law for rape are adequate.

We may consider substituting death penalty for imprisonment till life, instead of bringing fresher and harsher laws following public outrage.

In the last 14 years, none other than those convicted for terrorist acts have been hanged in India.

(The writer is a former Director General of Police and a researcher on the death penalty)

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