The problem

ON 21 April 2018 India woke up to learn from its newspapers that the Union cabinet had approved an ordinance escalating the punishment to death for rape of girls below 12 years of age. There was no doubt in anyone’s mind that this was the government’s response to the worldwide outrage against the rapes of minors in Kathua (J&K) and Unnao (UP). The ordinance had a mixed reaction; while some hailed it as an answer to a prayer, others were revolted by the idea of the damage such a penological response would inflict in the realm of child sexual abuse (CSA). What followed was a flurry of activity as India debated what is popularly known as the ‘death penalty ordinance’. However, there was one common thread in the discourse – both camps were talking to their own flock and no visible crossover could be observed.

Legislative action on the issue of sexual violence in India has held centre stage for the past many years and the recent ordinance is a culmination of this. India had opened the millennium with the Vishaka Guidelines on sexual harassment, which transmuted into the Sexual Harassment of women at Workplace Act, 2013. Simultaneously, new legislations like Protection of Women from Domestic Violence Act, 2005, and the Protection of Children from Sexual Offences Act (POCSO), 2012 along with alterations to the existing laws through The Criminal Law (Amendment) Act, 2013, were bought into force. The legislative processes in India mirrored a global trend of paradigm shifts in the acknowledgment, understanding and response to violence. Predominant amongst these has been gender based violence especially related to women and children. Characterized by the eruption of long buried sex scandals across the globe, the reactions have varied from spontaneous social media campaigns like the Me Too to amendments in legal systems.

A bare perusal of the Indian enactments shows a clear widening of the breadth and depth of the understanding of violence and the need for a nuanced response in addressing sexual violence. The journey in the understanding of the nature of sexual offences from the time of 1860, which remained static and limited to penovaginal penetration as constituting the requisite criteria for rape till very recently when it took a big leap in a short span of time expanding pretty much globally.1 As of now the common understanding of rape as penetration of either the penis, any other body part or object to any extent into the vagina, mouth, urethra or anus, including the touching of such parts with one’s mouth is included in the definition of what constitutes rape.2 The POCSO Act further recognizes sexual assault without penetration as a separate offence.3 The Indian Penal Code, 1860 (IPC) under its various provisions also recognized statutory rape,4 misuse of power of police officers, public servants, hospital personnel and management of any jails, homes or institutions if they used their position to commit rape on a woman or minor under their custody.5 The ambit on aggravated assault has also been widened to include relatives and bring in the ambit of the home as a site of abuse along with armed forces personnel, persons in position of trust and education institutions amongst others.6 Furthermore, sexual harassment7 and stalking8 have also been recognized as offences.

Nothing illustrates this better than the POCSO Act, which emerged as an outcome of widespread national level consultations with a multitude of stakeholders to address the specific needs and requirements of child victims of sexual abuse. At the time when the POCSO Act was enacted, it was viewed as a watershed in the creation of a child friendly system. However, six years on there is a growing recognition that POCSO needs to be revisited in light of the collective learnings from its implementation.

In contrast, the Death Penalty Ordinance seems an off-centre breaking of the silence on the part of the government. To many, it seems that an alternative platform for debate was created in order to deflect from the location of the accused in the power hierarchies and the resultant impunity with which they function in both Kathua and Unnao. The question as they see it ought to have been equality before the law and equal protection of the law, which would be accused and victim centric respectively rather than the death penalty, which is punishment centric.

While on the subject of equality it becomes important to highlight another facet of the issue. How do we contextualize death penalty for CSA within criminal jurisprudence, considering that POCSO reverses the burden of proof? Since POCSO places the burden of disproving sexual assault or alienation from the crime on the accused instead of committal on the prosecution, would the addition of the death penalty then amount to double jeopardy of the worst kind? Additionally, it cannot be ignored that the practicality of POCSO trials suggests that the judiciary is already finding it problematic to apply the reverse burden of proof.

The holistic approach to CSA presupposes several different platforms for issue based dialogues on its various aspects in a bid to throw up workable solutions and sometimes even to articulate the problem. Apart from this there is a tacit acknowledgment that the POCSO Act needs a thorough overall in order to better fulfil its mandate, both in structure and implementation. There are rising levels of concern about mandatory reporting and the need to either fine-tune or find more suitable alternatives that encourage and ensure reporting. It has to be understood that mandatory reporting was introduced in a bid to ensure that families, institutions, professionals, in fact anyone directly or indirectly having knowledge of sexual activity involving a minor, had a statutory responsibility to report it to the competent authority failing which they would face penal consequences. At the time it was felt that mandatory reporting would break the existing conspiracy of silence surrounding sexual assault of minors. However, mandatory reporting has its downside such as the denial of competent medical attention to CSA victims whose families or who themselves do not wish to engage with the legal mechanism.

To give this engagement a choice based approach resting with the victim opens up a Pandora’s box of unanswered questions. Can we force our children into a process they do not desire and which is universally accepted as traumatizing? Should a choice be given in a social crime? Can we ignore emerging social realities of adolescent sexual activity that is coming out of the closet and the ramifications of POCSO on the lives of our young adults? The provision relating to the criminalization of all sexual activity involving minors is seen as a major problem in itself by many. Without any calibration on account of romantic love, are the interactive spaces thus created desirable? How will the addition of the death penalty impact these already strained circumstances?

Quite apart from a practical analysis of the structural shortcomings of the POCSO Act, wide gaps have emerged in the implementation of processes required to achieve the goal of a child friendly judicial system. The work that requires to be done to create child friendly courtrooms is still in a nascent phase. With child friendly courts in five out of six district courts, Delhi is the forerunner. There is not only a severe shortage of mandated support persons, their qualifications and suitability are also not standardized, resulting in patchy delivery outcomes. If you add to this mix badly or rather untrained public prosecutors, investigators and a judiciary that is not properly sensitized, then the promises of POCSO seem hollow. The questions thrown up by the recent ordinance that demand answers are: should we not be investing in the processes and manpower that will prevent the systemic lapses which are the cause of re-traumatization of our children at the hands of the criminal justice system? And where should we place ourselves on the scale of culpability for failing to address repeated re-traumatization when the perpetrator of the initial trauma is adjudged worthy of the death sentence?

It is not as if there are no solutions – countries like the United Kingdom have created a cadre of specially trained support persons known as intermediaries who assist the police, the judges and the lawyers (both prosecution and defence) as well as facilitate the process. This has a twofold advantage – first that it helps to minimize the negative impact on the child victim and second, ensures the collection of qualitatively superior evidence even for non-verbal victims. This in turn ensures higher conviction rates. Considering the fact that the conviction rates for CSA in India remain abysmally low, should we be focused more on a punishment that is post-conviction as opposed to the processes that help improve conviction rates?

These are but a few of the many areas where work is required to make the rendering of justice to victims of CSA a minimally painful process which results in higher rates of conviction and assuages some of the anguish and pain of the victim and his/her family, besides generating a better chance of social acceptance. It is a widely accepted truth that all rape victims, apart from contending with the violation of their bodily integrity have to deal with the consequent social stigmatization. Historically, societies have ostracized victims of rape and burdened them by offloading their collective guilt and shame on them. Therefore, in dealing with these twin consequences, the victim, particularly a child victim, requires a lot of inputs of varying nature and degree during the long rehabilitative process. There is a need for an integrated rehabilitative programme that enables the victim to reintegrate into society and heal from the trauma holistically. As such rehabilitation needs to address health, both physical and mental, education, livelihood, social and cultural facets. This is a particularly difficult task as our understanding of the societal aspects of sexual violence are so nascent that currently society does not have the tools to generate an appropriate response and specialized inputs would be required to help the victim cope. Such measures would mean government support and sustained budgetary allocations.

These realizations seem to point directly at another discourse that seems inevitable as a consequence. Should we be looking at retributive or restorative justice? Does the pursuit of one necessarily imply sidelining the other? What is the combination of the two and how do we arrive at that equation which will alleviate the pain of a victim in the best possible way? There are hardcore proponents of restorative justice who believe that forgiveness is the only path to salvation and unless the victim learns to forgive the perpetrator he/she cannot fully heal themselves and will forever lead fractured lives. Yet others point to the fact that child molesters and paedophiles are like vermin who need to be exterminated in order to protect our children and in the process death penalty provides justice, vindication and solace to the victim. Is Indian society at a stage in its evolution where harsher punishment for rape is the need of the hour, as we still remain far from the egalitarian ideals of a de-jure equally for all?

The argument is that the society plays an emboldening factor because of its very nature rooted in patriarchal constructs with multilayered disparities where power plays a major role in protecting the accused rather than the victim, giving a greater sense of impunity to the crime of rape. Will the death penalty then act as a jolt for the much needed change in the current social order with reference to child sexual abuse? Or would it further endanger the victims to being murdered to avoid reporting and identification in the case of rape? Do most of the people have a middle of the road approach where they would like a mix of both aspects of justice? What is the perspective of the victims and that of their families on the issue and where do their priorities lie? These positions are out in the public arena but the conversation seems to be largely restricted and polarized. Two distinct camps have been created – one that advocates restorative justice and the other that waves the flag for the value of retribution. There seems to be an urgent need to build consensus from these two diametrically opposite views.

Unfortunately, the waters are muddy because of the escalation of violence in our daily existence. This violence which may have nothing to do with sexual assault inures us to recognizing only higher levels of violence as violence. For example, none of us question the heightened security measures as a violation of our privacy. In fact, many violations today have escalated to the platform of protection strategies as distrust and fear replaces trust. This tacit acceptance of the growing violence without the need for questioning or introspecting on the same, is highly evident in our day-to-day responses. Is then death penalty properly understood by the vast majority of its supporters in its fullest ramifications or is it simply a part of the clamour of the times where common law systems are giving way to an eye for an eye and a tooth for a tooth approach? Have the people who are pro-death penalty really examined their views kaleidoscopically or have they simply joined the chant as blind followers?

Here it becomes important to state that the subtext of the anti-death penalty argument is that the pro-death penalty propounders view the perpetrator/accused as the ‘other’ and never identify themselves or their loved ones as a potential accused. In fact the rhetoric of Kathua and Unnao is that lawmakers are the first to abuse their power to protect themselves or their near and dear ones. Would supporters of the death penalty be as numerous if the vision of the other as an accused was replaced with themselves or their near and dear ones? Conversely, are the proponents of the anti-death penalty stance subconsciously resisting it as a reaction to the ‘rabid hype’?

Arguments and counter-arguments are present within both camps. The anti-death penalty squad cites the fact that most death row convicts come from marginalized backgrounds. The death penalty supporters believe that law is organic and linked to societal evolution and will percolate vertically upwards to bring within its fold first, the non-marginalized and then those protected by either position or money power. Similarly, questions related to social responsibility towards the abuser themselves collide with questions related to societal rights to retribution. Very often abusers come from backgrounds of abuse, sometimes even sexual abuse, thus giving rise to questions of restorative justice for societal failure to protect the childhood and person of the abuser who at some stage would have also been a child victim in need of care and protection.

Does society have the right to protect itself at the cost of neglecting to put the abuse of the abuser within the zone of consideration? The position that the criminal justice system is based on an assumption of the protection of society as a whole from offences committed by individuals or groups against others predicates that there exists a right both moral and legal of the society to take whatever legislative measures it can to protect itself. Should then the focus be on social responsibility with its strong leanings towards reform and rehabilitation? Or should the focus be on social rights where even the death penalty is acceptable in order to protect? The rationale for death penalty in the latter case then becomes easier as the debate no longer has to centre around the question of its deterrent effect.

The recent trials in Madhya Pradesh, the first state in India to bring in the death penalty and award it for rape, illustrates a procedural concern raised by detractors of the death penalty. In one of the cases, the entire evidence which consisted of 25 witness statements was collected in 72 hours. The trial which lasted under two months resulted in the death penalty. However, this was not the end. Madhya Pradesh, which has awarded more than eight death penalties, condemned one man to death after a trial that lasted approximately five days. It may be remembered that POCSO had prescribed a one-year time frame for the trial, which is rarely followed and time spillovers are the norm. Will reducing the time span to three months increase efficiency or will it degenerate into badly investigated and poorly conducted trials by the beleaguered police and judiciary respectively?

During the 2018 monsoon session of Parliament the Death Penalty Ordinance was bought back as a law. It is clear from the observations/suggestions of the BJD MP Pinaki Misra that the bill was not referred to a standing or select committee for deliberations.9 This observation was endorsed by several members of the Rajya Sabha as well. If nothing else, the effect of the new law on the National Crime Records Bureau (NCRB) data would need to be examined. According to the ‘Death Penalty India Report’10 not even 40% of death sentences are confirmed by the High Court. In fact the results of a 15 year analysis (2000-2015) are startling as the highest rate of convictions confirmed is 36.8% as opposed to 47.5% that went from death penalty to acquittal. The average sentences upheld with respect to death penalty is only 10 to 15% but the NCRB data only collates trial court sentences.

Furthermore, it may be remembered that the NCRB data collection is tabulated by reference to the section of the crime awarding the highest sentence and all cases of life imprisonment/death penalty in CSA would now be reflected under 376 IPC and not under POCSO. A natural corollary to this would be that the reduced figures in POCSO will affect resource allocation at the policy level because no government can enhance resource allocation if they want to take advantage of the reduced numbers.

Another area of concern that would definitely emerge is the lack of consultative inputs particularly when the amendments will modify or affect POCSO. In this connection it is pertinent to note that POCSO resulted as an outcome of the consultative processes post the ratification of the UN Convention on the Rights of the Child. Perhaps an issue based analysis of POCSO and the current law sought to be enacted would realign the priorities for different solutions to emerge. However, the most disturbing aspect is that the government did not avail this opportunity to make the law gender neutral given the fact that the Union Minister for Women and Child Development, Maneka Gandhi, has accepted that in cases of CSA, boys are as vulnerable as girls. Does this omission mean the government is not concerned about its male children?

In this backdrop, it becomes important to create the context for the opposing camps to engage with each other rather than amongst themselves. The nature of the response to the death penalty-CSA matrix would be critical in determining the trajectory of the justice system, at least for some time to come.

ROMA BHAGAT

SEEMA BAQUER

 

Footnotes:

1. Section 375 explanation on rape under The Indian Penal Code, 1860.

2. Section 3 POCSO on penetrative sexual assault.

3. Section 7 on sexual assault.

4. Section 375 IPC on rape.

5. Section 376 IPC on punishment for rape.

6. Section 5 and 9 POCSO on aggravated assaults.

7. Section 11 POCSO on sexual harassment.

8. Section 354D of the Indian Penal Code.

9. ‘Death for Rape of Girls Under 12: LS Passes Bill’, The Indian Express, p. 7.

10. National Law University, Delhi, Volume 2, published by National Law University, Delhi Press, 2016, pp. 160-161.