HRW, Delhi HC Condemn Death Penalty against Child Rape Convicts

After the union cabinet passed the Criminal Law (Amendment) Ordinance 2018 punishing rapists of children below 12 years with the death penalty, Human Rights Watch today has condemned the initiative. It said that India should rather eliminate the death penalty as a punishment as it “is inherently cruel and irreversible, with little evidence that it serves as a deterrent.”

Similarly, the Delhi High Court while hearing an old Public Interest Litigation questioned the centre on whether it carried out due scientific research before clearing the ordinance.

"Did you carry out any study, any scientific assessment that death penalty is a deterrent to rape? Have you thought of the consequences to the victim? How many offenders would allow their victims to survive now that rape and murder have the same punishment," a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar asked the government, TNIE reported.

The court was hearing a PIL that contested the Criminal Law (Amendment) Act of 2013, which included a penal provision—minimum of seven years of jail term—for a rape convict and it took away the court's discretion to award less than that.

President Ram Nath Kovind on Sunday passed the Criminal Law (Amendment) Ordinance 2018 which aims to protect the lives of young girls by awarding stricter punishment to convicts of rape. It holds that the rape convict of children below 12 years of age will get a minimum of 20 years imprisonment and maximum life sentence or capital punishment.

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For rape convicts of girls above 12 years but below 16 years, the law has changed the imprisonment from minimum 10 years to 20 years and maximum to death penalty. The ordinance came after the nation-wide protests against Kathua gang rape case and Unnao rape case. In the Kathua gang rape case, a group of men allegedly gang raped an eight-year-old girl over a period of a few days and then bludgeoned her head by a stone till she died.

In the Unnao rape case, a BJP MLA Kuldeep Singh Sengar allegedly rape a 15-year-old girl in 2017. The girl kept rounding up the police to file FIR but they refused to. Only after media put the spotlight on it a little while back that UP government shifted the case from state police to CBI.

On the manner with which the ordinance came into existence, HRW South Asia Director, Meenakshi Ganguly said, “With this populist call for hangings, the government wants to cover up the fact that its supporters may have engaged in a hate crime.”

Delhi HC also said that the government was "not even looking at the root cause" or "educating people" as the offenders are often below the age of 18 years themselves. In several cases, the perpetrator is someone from the family or a relative.

“If the government is serious about dealing with violence against women and children, it will have to do the hard work of reforming the criminal justice system and ensure that perpetrators don't get protection from prosecution by political patronage,” she added.

In the same tone, Delhi HC also said that the government was "not even looking at the root cause" or "educating people" as the offenders are often below the age of 18 years themselves. In several cases, the perpetrator is someone from the family or a relative.

It also asked if the cabinet reached out to any victim and considered their opinion on the ordinance before releasing it.

The HRW report dealt with the issue, of victims not able to come out and report cases of sexual abuse. It brought the 2012 amendment after the gang rape of Jyoti Singh and said that actually encouraged women to file complaints against any such sexual offence.

And while the National Crime Record Bureau has shown an increase in the reportage of sexual crimes against women, we still need to do a lot.

“The Indian government has repeatedly said that it is committed to dealing with violence against women and children. But actions speak louder than words,” Ganguly said. “The new amendments are ill-conceived and hasty. Protecting children requires a far more thoughtful approach and politicians need to summon the political will to deliver it.”

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