The Union government has promulgated an ordinance that amends the relevant provisions of the Protection of Children from Sexual Offences (POCSO) Act, the Indian Evidence Act, the Indian Penal Code and the Code of Criminal Procedure, to act against rape of minors. Among the amendments, is the provision for death penalty for the rape of children below 12 years of age. With that, it has opened the Pandora’s Box, without really taking any meaningful action. To be sure, death penalty for rape of children has been a popular demand, though those raising it are likely to have not fully considered its merit. However, there are advocates of such a move across the political spectrum—Delhi Commission for Women chief Swati Maliwal, BJP leader and Union minister Maneka Gandhi, Congress leader and Punjab CM Amarinder Singh—and in the context of the recent cases of rapes of children in Jammu & Kashmir and Jharkhand, there was a clamour for the government to act on the demand. However, by giving in, the government has side-stepped the opportunity to act in a decisive manner to curb such crimes.
To start with, the under-12 categorisation is deeply problematic since it implicitly means that rape of a person older than that threshold doesn’t carry the same weight as a crime. Moreover, this arbitrary distinction puts children at greater risk—it creates a perverse incentive for the rapist to murder his victim to ensure her silence. In fact, “rape”, as per National Crime Records Bureau (NCRB) data, was the fifth-commonest motive behind murder in 2016. A provision may seem draconian and adequate as deterrent, but, on ground, it is the implementation of even the basic law that could make a greater difference.
NCRB data shows the conviction rate, under POCSO Act, was just 29.6% in 2016 while that for rape was an even lower 25%.This was further complicated by the fact that in 95% of the rape cases in 2016, the accused was known to the victim, and close family members constituted 18% of this “known accused” group. If the attendant penalty is death, it is likely that the family of the victim will not report the case, more so if the accused is an earning member or bread-winner. The government needs to recognise that its ordinance is a dangerous one—it makes children more vulnerable than before. While death penalty as a deterrent is questionable, under the pre-ordinance law, death penalty was handed out to the perpetrators of the Nirbhaya rape. It follows that a thorough investigation and dedicated prosecution can ensure justice.