Ordinance on rape of a woman below 12 years of age: An objective analysis

The Central Government has recently promulgated an ordinance amending the sentencing stipulated for the rape of a woman provided for in IPC; and qua the ordinance, the following punishment scheme has been brought into effect:

1. For rape of women above 16 years of age, minimum punishment is increased from 7 years to 10 years in prison;

2. For rape of girls between 12 to 16 years of age, minimum punishment is 20 years which may extend to life in prison;

3. For gang rape of girls between 12 to 16 years of age, minimum punishment is life in prison;

4. For rape of girls under 12 years of age, minimum punishment is 20 years in prison which may extend to life in prison or death penalty;

5. For gang rape of girls under 12 years of age, minimum punishment is life in prison or death penalty.

For the purpose of the present discussion, the limited question is ‘how far the new punishment scheme to the extent that it prescribes death for rape of a woman below 12 years of age can be significant in bringing down the crime’. There are multiple dimensions on which this question can be pursued, some of which are the following:

1. The generic dimension, where the death penalty itself has often been brought into criticism on two major grounds: efficacy and legitimacy. 

Efficacy: Where the question is, how far the death penalty has been successful as a deterrent in bringing down the crime rate; or how far it dissuades a would-be offender from committing a crime. The question is mainly of the efficacy of death penalty as a means of deterring the perpetrators from committing a crime. As a matter of fact, numerous studies have clearly and unequivocally suggested, through statistical evidence, that capital punishment does not reduce the crime rate as it has no deterrent effect on the society.

Legitimacy: As some theorists question the legitimacy of death penalty, where ‘reformation’, which is seen as the ultimate purpose of our criminal justice delivery system, has failed, and ‘retribution’ has taken over

2. The more specific dimension, of answering whether the death penalty, if it indeed does play a role in discouraging perpetrators, can actually discourage the perpetrators from committing a crime like rape, when rape is understood as a manifestation of a deep-rooted patriarchal social conditioning and a consequence of moral erosion brought on by years of subjugation of women where, for instance, men see sleazily dressed woman or a woman roaming late at night as an invitation for rape; rather than being able to see it as their own moral depravity in being unable to accept a woman’s right to dress herself the way she chooses.

3. There is another often-talked about real danger associated with introducing death penalty for rape cases. Studies have shown that most rapes are committed by men who are known to the victims or are their relatives. In order to prevent detection or in order to cover for their crime, men who commit rape might actually murder the victim, since the punishment for rape has been brought at par with the punishment for murder. 

Another aspect to this is that children who are relatives of their violators might be forced not to report those cases, because now that the death penalty has been introduced, family members may not want that kind of punishment against their own family member. 

4. Another hot stream in this flush of criticism against death penalty flows from the fact that as in a country like India, where there is so less conviction rate in rape cases, it is rightly said that the central point of focus should be on ensuring certainty of punishment; rather than turning the lever on the quantum of punishment.

This can be achieved through ensuring better and timely investigation, protection of child-victims in police stations who are often the solitary witnesses in rape cases, speedy trial of child-rape cases, better handling of evidence by the investigation agencies, comfortable environment for child-victims in courts, rehabilitation measures for the child-victims, and such other measures, so as to ensure that the purpose of our criminal justice delivery system can be effectively met.   

More than the time taken in the parliamentary process to make reforms in the legal system, is the time taken to simply realize the fact that reforms need to be made. And worse still, there is seldom a proactive, self-initiated response from the parliamentarians to make those reforms. As history of legal reforms with regard to the rape laws or crime against women in general is concerned, it is amply clear that most reforms in the legal process have taken place after a public response or outcry against the system has happened after a major incident. The Nirbhaya incident saw changes being made in the definition of rape; the Mathura custodial rape case saw a huge public outcry, and consequent amendments in rape laws by way of criminal law amendment act, 1983; the recent Katua rape has now seen changes taking place again, with the death penalty for child rapists being prescribed; and the list goes on. But as one notices, all these reforms were initiated only after there had been a huge public oucry following a major incident. The ruling dispensation has to face a lot of embarrassment for failing to stop such incidents from taking place. In order to cover for this ignomity, they are compelled to introduce certain measures that come more from a populist mindset than applying and putting to test the proposed reforms against their own rationalist rigour.

What eventually happens is that, the ruling dispensation, working with a populist scale, draws measures and reforms that go way beyond what can be the more approximate requirement which they could realise if they applied those proposed formulations based on the reality of what had happened in history, where, as relevant to the present discussion, it can be concluded as several other empirical studies have, that the death penalty is in no way an answer to deter a would-be offender from committing a crime.