Abolish Death Penalty India: Child abuse: More death penalty, longer jail terms

Saturday, December 29, 2018

Child abuse: More death penalty, longer jail terms

Written by Shalini Nair |New Delhi |Updated: December 29, 2018 6:44:58 am

WCD Ministry officials said that the amendment was necessary as POCSO, unlike the Indian Penal Code (IPC), is a gender-neutral law that protects both boys and girls under the age of 18.

The Union Cabinet Friday approved amendments to the Protection of Children from Sexual Offences (POCSO) Act, 2012, to include the death penalty in all cases of aggravated penetrative sexual assault against children, both boys and girls, below the age of 18. This covers 21 categories of sexual crimes against children. The amendments also extend the punishment for aggravated penetrative sexual assault from a minimum of 10 years to a minimum of 20 years, up to a maximum of life imprisonment and even the death penalty under Section 6 of POCSO Act. Its existing definition covers 20 categories of penetrative sexual crimes against children and the Cabinet also approved adding sexual assault of children who are victims of calamities or natural disasters, taking it up to 21 categories.

The Ministry of Women and Child Development, which moved the Cabinet note, said: “In the wake of gruesome and heart-wrenching incidents, there has been a growing demand from society to arrest the disturbing trend by introducing stringent punishment including the death penalty for rape cases.”

EXPLAINED

POCSO now gender neutral, convictions keyThe amendments come months after the Cabinet approved the death penalty for those convicted of raping girls below the age of 12. They widen the range of cases of sexual assault against boys and girls under 18 that are now punishable by death. The government says a more stringent POCSO will act as a deterrent. But data show that less than 3% of all POCSO cases end in convictions and experts warn against the chilling effect the death penalty may have on reporting the crime. Systemic changes in law enforcement and prosecution hold the key to tackling child sexual abuse.

WCD Ministry officials said that the amendment was necessary as POCSO, unlike the Indian Penal Code (IPC), is a gender-neutral law that protects both boys and girls under the age of 18. “The earlier amendment by the Home Ministry allowed the death penalty only in cases of sexual assault of girls below 12 years. Our amendment, if approved by Parliament, will not only allow a maximum of the death penalty in case of sexual assault of boy victims under 12 years but also in all cases where a child under 18 years is sexually assaulted in an aggravated manner,” said a senior WCD official. In its cabinet note, the ministry has cited reported rapes of young girls in the aftermath of Kedarnath floods and that children constitute 50-60% of victims of calamities to make a case for including rapes in course of natural calamities as the 21st category. Section 4 of POCSO on ‘Penetrative sexual assault’ also has been amended to extend the punishment from the existing seven years to ten years if the child is 16-17 years old and to a minimum of 20 years if the child is below the age of 16. The maximum sentence in these cases remains life imprisonment.

The definition of ‘sexual assault’ in POCSO has been amended to include administering hormones to children expedite their sexual maturity for the purpose of commercial sexual exploitation. Moreover, punitive measures have been made more stringent in cases where children are used for pornography as well as for storing such content. In a statement after the Cabinet decision, Law Minister Ravi Shankar Prasad it was unfortunate that some minors are administered hormones to make them appear adult. He said, “This is a wholesome initiative whereby the entire POCSO architecture is not only strengthened but also enlarged so that artificial medicines or hormones could not be abused to kill the childliness of a child.” The 21 categories under aggravated penetrative sexual assault, in addition to the death penalty for sexually assaulting children below the age of 12, cover child victims under the age of 18 years, who have been subject to penetrative sexual assault by a police officer or a member of the armed forces or security forces, by a public servant, a relative, the staff of a jail or remand home or protection home, staff of a hospital, educational institution, or religious institution among others.

It also includes the gangrape of a child or use of deadly weapons during penetrative sexual assault, a sexual assault that incapacitates the child physically or mentally, makes a girl child pregnant, inflicts the child with HIV or any life-threatening disease. The maximum punishment of death will also be applicable when sexual assault victims are children with mental or physical disabilities, in cases of repeat offenders, rape and attempt to murder, and rape during communal violence.

Source: https://indianexpress.com/article/india/pocso-child-abuse-sexual-harassment-cabinet-meeting-5514445/ (Accessed 29 December 2018)

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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George

Abolish Death Penalty India

Saturday, December 29, 2018

Child abuse: More death penalty, longer jail terms

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