As a response to the spate of brutal rapes of children, the Government in a knee-jerk reaction has notified an ordinance to make rape of girls younger than 12 punishable by death sentence. Is it just a way to appease public outrage?
The ordinance amends the Criminal Law (Amendment) Act, 2013, Protection of Children from Sexual Offences Act (POCSO), the Indian Penal Code and the Evidence Act to increase the maximum sentence for rape of minor girls to death penalty.
The ordinance comes across as a reactionary measure, there is a long way to go, and there is no need to rejoice. Here is why-
- The ordinance falls short of addressing the issues of gender-based violence. By amending POCSO that recognises that both boys and girls could be sexually assaulted to confer death penalty on rapists of only girls below 12 years of age, it overlooks the assaulted boys and creates a hierarchy of violence which is a dangerous precedent. Boys face as much sexual assault as girls. In 2007, Ministry of Women and Child Welfare, supported by United Nations Children’s Fund, Save the Children and Prayas conducted a study to understand the magnitude of child abuse in India, they found that 53.22% children faced one or more forms of sexual abuse; among them, the number of boys abused was 52.94%.
- There is no evidence that death penalty acts as a deterrent. The Delhi High Court on Monday has questioned the sudden move and asked if any scientific assessment was conducted to see if the death penalty is a deterrent to rape The perpetrators of sexual assault against minors are often known to the child. With the death penalty, taking ‘rarest of rare cases’ into account, a conviction would only become harder and encourage rapists to murder their victims so that there is no chance of the case being reported.
- Special Fast Track Courts are already present but every step from reporting to conviction is weighed against justice which is evident from Court Disposal of Crime Against Children Cases from NCRB 2016 data stating that there were 1869 convictions, 4757 acquittals in Child Rape (Sec. 4 & 6 POCSO)/ Sec.376 of IPC. The conviction rate was 28.2% while the pendency was a staggering 89.6%. We need to take a hard look at the functioning of existing fast track courts.
The ordinance has weakened the spirit of POCSO, which sought to protect all children from sexual assault, regardless of their gender. In the face of the brutality and justifiable outrage, what was needed was a response. Instead, we appear to have got a poorly thought through a reaction that sets a dangerous precedent. Now, the National Commission for Protection of Child Rights (NCPCR) is set to push for the age limit to be extended till 16 years.