A knee jerk response


As an effective deterrent against rape, especially of minors, the Central Government moved fast by approval of an ordinance by the Union Cabinet on April 21, immediately after the Prime Minister returned from London. President Ram Nath Kovind, next day, gave his approval to the ordinance, paving the way for providing stringent punishment, including death penalty, for those convicted of committing rape on girls below the age of 12 years. In this connection, the Gazette notification said, “Since Parliament is not in session and the President is satisfied that the circumstances exist which render it necessary for him to take immediate action and now, in exercise of powers conferred by clause (1) of Article 123 of the constitution , the President is pleased to promulgate the ordinance.” The thing is that there is no scientific or empirical evidence to suggest that death penalty or any inhuman form of punishment can be a deterrent to sexual violence. Rather, there is all likelihood that most rapes would end up in murders as this would encourage perpetrators to destroy all signs of evidence including the victimised. The cries for death penalty are based on the false assumptions that rapes and sexual violence are aberrations. The scale of sexual violence is far too enormous and is rampant in work places, educational institutions and homes and fairly large percentage of this includes cases in which minors, both girls and boys, are sexually violated. Not even a minute fraction of the total number of sexual abuse cases in the country are reported because of social stigma and inherent societal prejudices. If all cases were to be fairly investigated, the number of people going on death rows would be far too high. The cry for death penalty for rapes is an elitist demand which is inspired by a warped understanding of rapes that is based on the false assumption that rapes are committed by a certain class of uneducated and underprivileged people and this often results in the hypocrisy of denial of rapes and sexual misconduct by people of one’s own socio-economic backgrounds or those who are held in high esteem by the elite classes. The identities of the victim and perpetrators, their social and economic class, besides political affiliations are often instrumental in how the discourse on sexual assault takes place and how justice is eventually delivered. The biggest tragedy with respect to sexual violence is that the responses of the society, the institutions of the state – from the investigators to the judiciary – are often dictated by prejudices and selective denials. With social stigma against rape victims rampant in society, it does precious little to provide some confidence to the survivors of sexual violence to come forward and report their cases. If they do, they are often faced with a hostile legal justice system starting from the basic lodging of a complaint, collection of evidence and then progress of trial. Instead of devising scientific methods of evidence collection and medical examination, the victims are subjected to constant humiliation at every stage. This suggests that the basic problem with sexual violence is low incidence of reporting, even lower prosecution and conviction. Death penalty would be least helpful in such cases. Rather, it will only help sweep away the issue of sexual violence under the carpet. If the problem lies in poor redressal of complaints of sexual violence, weak legal justice mechanisms, poor prosecution rates and a pattern of impunity to protect the powerful offenders, the answer does not lie in bringing in laws that are inhuman. Death penalty for any crime is outrageous. The Indian legal justice system is not based on the pattern of revenge or honour. It is based on principles of humanity and in consonance with the fundamental rights of citizens of the country, which means that the most stringent of punishments for worst of crimes cannot and should not amount to agony and a dehumanizing effect on those serving the sentence. This underlying spirit of the constitution needs to be upheld while delivering justice and in implementation of the legal justice system in the country.