‘It cannot be denied that in cases of child rape the question of consent cannot arise at all, simply because a child or worst still an infant lacks mental power or knowledge to provide "consent" or even lacks physical ability to restrain. Moreover such an act subjects the child/infant to physical trauma, leading to even physical, mental, and psychological ailment. To eliminate the horror from the face of the earth, I firmly believe we need to accept capital punishment as an apt punishment for subjecting a child to such a ordeal.’

– Henrietta Newton Martin

 

INDIA is amongst the countries that have retained capital punishment. The Supreme Court of India has time and again evaluated the need and effectiveness of the imposition of death penalty and upheld it. The recent ordinance amending the Code of Criminal Procedure, imposing capital punishment as a penalty for aggravated child sexual abuse, has once again raised the debate on capital punishment within academic and legal circles.

The debate on death penalty can be traced to the famous study of crimes and punishment done by Cesare Beccaria, the Italian philosopher who propounded abolishing the death penalty and, since then, the society has been divided.

While every once in a while we raise the debate on repeal of capital punishment on the grounds of it being archaic, or inhuman, or against the will of God. There are compelling instances where the society itself has bayed for blood. The recent rapes in India are a clear example, where the brutality of the crime was such that there seemed to be no other clearer punishment for the perpetrators other than death. The memory of instances like the Nirbhaya incident in Delhi (2012) still evokes strong emotions.

The world is burning as society advances, manifested in the constant upsurge of crimes. A general consensus on some of the worst forms of brutality is around the attack on women and children, and sexual abuse is clearly one of its worst forms. Throughout the ages, sexual abuse in the form of rape or molestation or child trafficking has been recorded. It is used as a form of subjugation, or called ‘spoils of war’ or to assert dominance of one particular class or section of humans over others. Women are the worst affected, although rape of a male is not unheard of. Throughout this entire gamut of abuse that we unfortunately encounter, child sexual abuse has the ability to horrify and revolt us the most.

 

The Indian society is family centric, which translates into our society being extremely protective towards our women and children. In this scenario, when a child is subjected to the violence of sexual abuse it shakes our belief in the society that we have created for ourselves. Recent news reports in India have pointed towards a growing need to ensure that as a society we are free from the horrors of child rape, and our children ensured of the innocence and future that every child deserves, notwithstanding religion, caste or economic background.

As we grapple with the many forms of violence, and try and streamline our laws to deter such instances, our first concern must always be to protect our children. Children are the future, and to ensure their safety and protection is our first and foremost duty – beyond governance, beyond protecting our boundaries and before we even start to address other crimes. We need to ensure protection for our children above all.

A vital step towards this is to penalize the crime with such severity that nobody, absolutely no one, has the audacity to subject an innocent child to such brutality. The ordinance brought forward by the ruling Bharatiya Janata Party recommending death penalty in cases of child sexual abuse is a much needed and a welcome step.

The recent amendment to the Indian law imposes the minimum penalty of life imprisonment or death for the gang rape of a child less than 12 years of age, and a minimum of 20 years for the rape of a child up to a maximum sentence of life imprisonment or death. It also introduces welcome and much needed changes – expediting the trial to within two months and creation of forensic labs and fast track courts. The Supreme Court of India in the case of Alakh Alok Shrivastava vs Union of India observed that despite the enactment of the POSCO Act in 2012, there has been no decline in offences against children. The new ordinance will definitely act as a deterrent from future crime.

 

Utilitarian theory states that punishment is a necessary evil and reasons that punishment is inflicted to curb crime should be fair, just and reasonable. It also says that where punishment of a lower degree would achieve the same result, capital punishment should not be imposed. When we look at old English laws, capital punishment was imposed for about 222 crimes, which included minor infractions such as stealing a horse or stealing five shillings. There seems to be a general consensus among the developed nations to either abolish capital punishment or severely limit it.

One common argument against death penalty is that there are no reliable statistics to prove its deterrence effect. This contention ignores two aspects of the question. First, that the reliability of statistics remains unverified. Second, there are several factors of a socio-economic nature which determine the quantum of offences committed in a society. However there is a logical corollary to the counter argument that you cannot measure the crime that never took place.

There are three main arguments advanced by proponents of the death penalty: (i) It is the harshest of punishments and thus the most effective in deterring crime; (ii) It makes more sense economically to give death penalty than to incur the cost of a prisoner which creates extra burden on the exchequer, and (iii) Capital punishment has certainty. In most cases where life imprisonment is awarded, the prisoner manages to procure a pardon after a while.

 

Another common argument often encountered against capital punishment is that it is inhumane and brutal, but this argument often forgets that although brutal in its nature, the death penalty is a reaction against brutality. The abolitionists also argue that capital punishment makes the economically weaker offender even more vulnerable; but we need to understand that the death penalty is never awarded frivolously – the sentence of death always weighs heavy on the mind of the judge imposing the penalty.

One of most succinctly worded arguments in favour of the death penalty is by James Fitzjames Stephen:

‘No other punishment deters man so effectual from committing crimes as the punishment of death. This is one of those propositions which is difficult to prove, simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. ...No one goes to certain inevitable death except by compulsion. Put the matter the other way. Was there ever yet a criminal, who when sentenced to death and brought out to die, would refuse the offer or a commutation of his sentence for the severest secondary punishment? Surely not. Why is this? It can only be because ‘All that a man has he will give for his life.’ In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly.’

 

The Thirty-fifth Report of the Law Commission which argued in favour of the retention of death penalty, held the view that ‘Experience of other countries could not be conclusive for India. Need for deterrent control provided by capital punishment is greater in various classes of society. There is greater danger in India of increase in violent crimes if capital punishment is abandoned, particularly in respect of professional criminals

In Mahesh vs State of M.P., the court observed: ‘To give the lesser punishment for the appellants would be to render the justice system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.’

In Asharfi Lal vs State of U.P. the language of deterrence was used in these terms: ‘As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death …is confirmed.’

The court gave a strong reasoning in favour of deterrent justification of sentencing in Ravji vs State of Rajasthan in these words: ‘It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victims but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society’s cry for justice against the criminal". …if for such heinous crimes the most deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance.’

 

While we may cry hoarse over ideas of human rights and rights of the accused and while the world debates the humanity of capital punishment, we still need to balance it with the rights of the victims themselves. Capital punishment has been vilified by statistics and reports of not being an effective deterrent, or that is an archaic and populist measure. But the truth is also unalienable; the rape of a child destroys a life irrevocably and has to be stamped out if we want our children to live in a free world.

Reform measures, better education, a better justice system are needed, but the question still remains: what of those that still fall through the cracks? It is an unquestionable fact that no system is foolproof, no law gives complete protection. The idea of death penalty is to recommend irrevocable punishment on someone who has committed the worst that a human being can. The rape of a child clearly falls in the category of rarest of the rare. An aggravated assault on a child, in the nature of sexual abuse is a depraved act of an individual incapable of rational thinking.

The statistics quoted for death penalty are for instances where the death penalty exists for rarest of rare cases, in instances where the brutality of the crime is so high that it becomes inhuman. It is often seen that in such cases the perpetrators of the crime are almost subhuman and unable to feel the deterrence effect of the prescribed capital punishment.

To apply such statistics to the present ordinance would not be appropriate. Aggravated child sexual assault, though heinous is not always an effect of a diseased mind; it is the result of a multitude of factors ranging from aggression to dominance or lust. In such cases, where the perpetrator may be capable of logical thought and human fear, there is no question that death penalty will certainly act as a deterrent.

The idea that the imposition of death penalty will result in criminals killing the child as a way of eliminating evidence does not convince. The current punishment of 10 years for an offence is as likely to result in murder as the threat of death penalty. It is absurd to contend that a perpetrator is more likely to have mercy on the child and not kill him or her, despite knowing that he is facing a long incarceration. It is as likely that he will try and eliminate the victim and destroy evidence in both cases.

 

The general evidence theory states that persons who are punished for violating the criminal law serve as an object lesson for the rest of society. When we make examples of people convicted of a crime, a message goes out to the rest. Whether as a moral wrong or for fear of retribution, it does effect the society and carries the message across. It creates a conscious inhibition towards the action penalized. The swiftness and severity of the penalty has been proven to act as deterrence, and we do not even need statistics to prove this; the criminal justice systems in all countries of the world work on the principle of deterrence.

A former judge of the Supreme Court has said, ‘Whenever any reform measure is taken, it always has two sides. I don’t think that merely because a family member might be shielded, a harsh punishment should not be introduced. Whatever you do, there is always a tendency that the accused would try to dodge the law in whatever way possible. In order to have a fast-track trial we need fast-track procedures too.’

When we look at some of the observations made by the courts in cases of child sexual assault, we realize the horrific nature of the crimes.

 

In Ram Deo Prasad vs State of Bihar 2013 (7) SCC 725, while upholding the death penalty the Supreme Court held: ‘Not only is the victim an innocent child and the accused a middle-aged married man of 53 years of age with four children but the crime is committed in an extremely brutal, inhuman, grotesque, diabolical, revolting, and dastardly manner and is such as to arouse intense and extreme indignation of the society. The accused has acted in a totally beastly and perverse manner. It can hardly be even imagined that what torture and suffering the minor child must have faced during the course of commission of this crime. All her private parts were torn, lacerated and bleeding. It shows the extent of brutal sexual urge of the accused which targeted a minor child, who still had to see the world.’

The sentiment was echoed in the case of State of M.P. vs Santosh Kumar 2006 (6) SCC 1 where the Supreme Court highlighted that proper punishment needs to be imposed. It held: ‘For instance, a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc.’

 

In Dhananjoy Chatterjee alias Dhana vs State of West Bengal [(1994) 2 SCC 220], the Bench of Justices Anand and N.P. Singh upheld the death sentence in a case of rape and murder of a young girl by a security guard who lived in the same building. The court referred to ‘society’s cry for justice.’ A further aggravating factor recorded by the court in this case was the fact that the offence was committed by the security guard whose duty it was to protect. The court, therefore, lamented, ‘If the security guards behave in this manner, who will guard the guards?’

In Laxman Naik vs State of Orissa (AIR 1995 SC 1387), Justices Anand and Faizanuddin upheld the death sentence in a case where a seven year-old was raped and murdered by her paternal uncle. The Bench observed that such a case ‘sends shock waves not only to the judicial conscience but to everyone having slightest sense of human values and particularly to the blood relations and the society at large.’

The above instances clearly outline the gruesome nature of child sexual assault; to let our children remain vulnerable to such cruelty will be our failure as a society. We might or might not agree on the morality of capital punishment, or its efficacy as a tool for deterrence of crime, but if there is any chance of it acting as one, if there is even one person who can be deterred by the enactment of this law, then that is a chance we are obliged to take.