Why death penalty for child rapists is drawing flak

The massive outrage over the brutal gang rape and murder of an eight-year-old in Kathua as well as the rape of a 16-year-old in Unnao seems to have sent the Modi government scurrying for cover this election season.

The government, especially after inviting the people's ire over its continued silence, has now passed an ordinance prescribing death penalty for those guilty of raping children under the age of 12.

According to this PTI report, official sources said the criminal law amendment ordinance seeks to amend the Indian Penal Code (IPC), the Evidence Act, the Code of Criminal Procedure (CrPC) and POCSO Act to introduce a new provision to sentence convicts of such crimes to death.

In addition, the cabinet reportedly has also cleared harsher punishments for those who rape girls under the age of 16.

“Considering the urgency of the situation, we have decided to bring an ordinance to implement the changes in the Protection of Children from Sexual Offences (POCSO) Act, 2012,” a senior official in the ministry of Women and Child Development (WCD) was quoted as saying by the Hindustan Times.

This new amendment to award death penalty — at present, the maximum punishment for aggravated sexual assault on minors under the POCSO Act is life imprisonment — has received both condemnation and support.

While some welcomed the move, others flayed the BJP for its hogwash "considering the urgency of the situation" (read upcoming elections).

Some of the criticism came in form of the ruling party — the Bharatiya Janata Party — choosing to protect its own interests over the interests of the masses.

The BJP has been accused of shielding the accused in both the cases because of political pressure. While in the Unnao case, BJP MLA from Uttar Pradesh Kuldeep Singh Sengar is accused of raping a teenager, in J&K's Kathua, an eight-year-old was allegedly sedated and repeatedly raped before being murdered by eight Hindu men, to drive away the nomadic Bakwarwal Muslim community from Jammu.

In Kathua, the Hindu Ekta Manch, that included members of the BJP, marched with the Tricolour and demanded the release of one of the accused who is a cop.

Oddly enough, the Yogi Adityanath government in UP failed not just in taking action against BJP MLA Kuldeep Singh Sengar, it has also decided to withdraw a rape and kidnapping case against former Union minister Chinmayanand.

In addition, according to a new report by Association for Democratic Reforms (ADR) along with National Election Watch, at least 48 MPs and MLAs in the country have cases related to crime against women registered against them. As many as 12 of them are from the BJP, the party ruling at the Centre and most of the states.

Those questioning the move also pointed out the futility of death penalties as a deterrent for crimes against women and children. The most common argument against death penalty in cases of child rape is that the existing law is stringent enough, and increasing the quantum of punishment is not going to make the situation any better.

Speaking on death penalty for rapists to Scroll.in, Swagata Raha, a legal consultant with the Centre for Child and the Law at the National Law School of India University, Bengaluru, said: “The death penalty is a low-hanging fruit to go after perpetrators. The laws are getting more penal but where are the fundamental changes to strengthen the system? Will justice be done by hanging a few people? Enough studies show that it is not a deterrent. Where are the structures and changes at the systemic level?”

The government's reaction, in any case, looks like more of knee-jerk, desperate bid to regain people's lost faith in the BJP.

In its urgency, an important aspect that the Centre forgot to take into consideration is the common argument made by Indian conservatives, many of them from BJP, against laws criminalising marital rape - that how such a law would destroy the idea of the Indian family.

According to a survey conducted by World Vision India – a humanitarian organisation – that involved more than 45,000 children in the 12-18 age group, across 26 states in the country, revealed that one in four families do not come forward to report child abuse. Additionally, World Vision India national director Cherian Thomas said: “With 98 per cent of rapes being committed by people known to the children, I feel it is time that we all come under one banner to focus our work around child protection.”

The question that remains to be answered by members of the ruling party, now, is: How would the institution of family fare, should capital punishments be doled out to child rapists?

Of course, a large section of the social media felt this was reason enough to cheer. Death penalty to child rapists sounds like the government is working on making the country a safer place for women and children, without actually making an effort to fasten rape trials, ensure better law enforcement and attempting to change the overall misogynistic mindset of the country.

Yet, every so often, when cases like the one in Kathua emerge, a sudden need to instil fear in rapists and potential rapists through death punishments gains currency.

Also read: The awkward moment when Modi faced hard home truths in London