Evaluating The Effectiveness Of The Death Penalty Under POCSO Act 2012 In Deterring Child Rape - A Critical Analysis
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Category: Criminal Law
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EVALUATING THE EFFECTIVENESS OF THE DEATH
PENALTY UNDER POCSO ACT 2012 IN DETERRING CHILD
RAPE: A CRITICAL
ANALYSIS
Advitya Ahlawat, Christ (Deemed to be) University, Bangalore
ABSTRACT
Children are the most valuable asset of a nation, and their opportunities, happiness, safety, health, and education serve as indicators of the country's socioeconomic progress. In response to an upsurge in crimes against children, the POCSO Act was introduced in 2012, and this article begins by outlining all of its major goals. It critically analyses whether the 2018 amendment to the Act, which introduces capital punishment for offenders convicted of raping children below the age of 12, would help deter these crimes. Followed by a series of tragic child rapes committed by these offenders over the years, the government on 21st April, 2018 passed an Ordinance which amended the existing POCSO Act 2012, IPC 1860 and various other provisions related to rape.
This legislation stresses specifically on Capital Punishments to be awarded to these convicts who are found guilty of committing rape of children below the age of 12 years. The POCSO Act, 2012 has undoubtedly played a significant role in India's efforts to combat child sexual abuse (CSA). It has recognized and prohibited various harmful sexual practices that endanger children. The notable increase in reported cases indicates that the law has had a profound impact on public awareness, the criminal justice system, sensitization efforts, and the promotion of CSA reporting. While the law is comprehensive, its implementation in India faces challenges due to three key issues identified within its framework. These include the strict age of consent for individuals under eighteen and challenges related to age determination accuracy.
Additionally, there are legal obligations for reporting incidents under the POCSO Act, 2012. Both the POCSO Act and the Prohibition of Child Marriages Act, 2006, reflect the Indian government's commitment to preventing child marriages and safeguarding vulnerable children. These laws are intended to deter underage marriages. However, given the aforementioned challenges and the societal and cultural contexts that often tolerate or even promote child marriages, there remains a risk of inefficiency and wasted resources. To evaluate whether the imposition of the death penalty will reduce instances of child rape, this paper will critically analyse the legislation in relation to these issues.
Keywords
POCSO Act 2012, Death penalty, Child Sexual Abuse (CSA), Deterrence, Retribution, Amendment A. Introduction Child sexual abuse has been a widespread phenomenon in India, and over the years, instances of such abuse have been increasing at an alarming rate. Realizing the seriousness of the issue, the Government passed the Protection of Children from Sexual Offences (POCSO) Act, 2012, a holistic legislation to protect children from sexual exploitation and abuse. Yet, in spite of the fact that the Act has stringent provisions, the trend of continued escalation in child sexual abuse cases has created pressures for stricter punishment, and the death penalty for the perpetrators has been advocated.
The justification for such a move is two-pronged: first, it is felt that the death penalty would act as a powerful deterrent against child sexual abuse, and second, it would be in keeping with the ethos of retributive justice, which stresses severe punishment for outrageous crimes. Upon closer scrutiny, however, the imposition of capital punishment for child rape has serious implications and could have unforeseen effects that would ultimately harm the justice system. Perhaps the most serious threat posed by the death penalty for child sexual abuse is the potential for mass under-reporting. In most cases, the perpetrators of such offenses are familiar to the victims and are usually family members, relatives, or those in authority.
The threat of harsh punishment, especially death, might deter victims and their families from reporting the cases, resulting in a low conviction rate and denial of justice to the child. Also, considering that the death penalty is irreversible, there is increased risk of miscarriages of justice, especially in a criminal justice system where the investigative and judicial procedures are faulty and loaded with delays. Lastly, the application of the death penalty may make it more challenging to prosecute cases of child sexual abuse. The high evidentiary requirements of capital punishment could burden the prosecution unduly, rendering it more challenging to secure convictions. Prosecutorial loopholes can be taken advantage of by defense lawyers in order to prolong trials, and in the process, compound survivors' and their families' trauma.
Rather than emphasizing the strengthening of investigative mechanisms, forensic infrastructure, and survivor assistance systems, the focus on capital punishment could perhaps deflect attention away from the structural and systemic breakdowns in the execution of the current POCSO framework. What is required at this hour is not just tougher punishments but an efficient enforcement system, such as improved training for law enforcement officers, quicker trial processes, full-fledged rehabilitation programs for survivors, and enhanced public awareness regarding child protection legislation. Finally, although the visceral attraction of the death penalty as a method of deterrence and retaliatory justice cannot be ignored, its real-world implications in the context of child sexual abuse need to be carefully weighed.
Rather than depend on extreme punishment, the government and legal officials need to strive to enhance the current child protection system, overcome institutional inefficacy, and provide survivors with the care and justice they are entitled to. A holistic approach that prioritizes prevention, protection, and rehabilitation is far more effective in combating child sexual abuse than the mere imposition of capital punishment. B. Death Penalty in POCSO Act The government passed the Protection of Children from Sexual Offenses (POCSO) Act, 2012, which became operative on November 14 of that same year. In 2019, the Act was revised, with the introduction of the death sentence as one of the main changes. Capital punishment for the crime of aggravated penetrative sexual assault is introduced in Section 6 of the main statute.
It also increases the minimum sentence of punishment by ten years of rigorous imprisonment which can run into life imprisonment along with a fine. This is one of the causes of the sudden rise in cases of child sexual abuse with no control This is for the introduction of the death penalty in the Act. Child abuse is something that no society can be allowed and legislators hope believe our most vulnerable children would be safer under the kind of deterrence that the death penalty creates. Stricter criminal laws were added in the 2019 amendments in an effort to deter and discourage the trend of child sexual abuse. This was revealed by the sharp increase in juvenile crime rates, particularly following the gang rape and murder case in Kathua. Protecting the interests of vulnerable children in distress as well as ensuring their safety and dignity came next. C.
Balancing Deterrence and Justice Amidst Jurisprudential Debate The death penalty was taken to rein in crimes against children and to use this penalty as a warning to potential offenders. Regarding the death penalty in the POCSO Act, there is already a great deal of case law that should be taken into account. For instance, though upholding the constitutional acceptability of the death penalty under Section 302 IPC in Bachan Singh v. State of Punjab1, the Apex Court declared that life imprisonment is the "rule" and death sentence is an "exception" to it; death sentence cannot be "provided "unless in the rarest of the rare cases". The Supreme Court, thereafter streamlined the doctrine of "rarest of rare" applicable to cases concerning capital punishment in Macchi Singh v. State of Punjab2.
These are: • Manner of commission of murder • Motivation • The crime's antisocial or socially repugnant nature • The severity of the offense • Personality of the murder victim Enumerated above are the extenuating circumstances which ought to guide the court in meting out the appropriate punishment. Generally speaking, the offense should be of a kind where the only possible punishment is death, as life in jail does not seem to be enough to adequately punish the offender for their misconduct. Even after considering the mitigating factors properly, the court may take more time and not return the verdict. As a result, the sentencing policy must balance the "twin factors," or the degree of the offender's reformation and incorporation into civil society, with the deterrent effect.
The legislature disregarded calls from supporters for the death penalty's abolition in passing the POCSO Act, which reinstates the death sentence. For instance, Advocate, Vrinda Grover was of the view that. Criminal rules were changed in 2013; however, the number of rapes has not decreased after seven years. The demand for the convicts' execution has taken over the conversation, rather than forcing the state to make the necessary investments to close the gaps in the investigation, prosecution, and adjudication of sexual offenses as well as to create victim-oriented procedures. Seven years later, the state's
1 Bachan Singh v State of Punjab [1980] 2 SCC 684.
2 Macchi Singh v State of Punjab [1983] AIR SC 957.
ability to put an end to life is firmly established, but Indian women and girls are still fighting for the right to live as equal people in a world of freedom, security, and dignity. Deterrence vs. Retribution A key argument in favour of the death penalty in such cases is that it's thought to be a crime deterrent. However, there is no empirical evidence that higher punishments deter crime. A thorough review of studies in the United States by the National Academy of Sciences concluded that it was impossible to affirm with certainty whether the death penalty is an effective deterrent. That ambiguity makes the use of the death penalty as a means of deterrence ethically and practically questionable, given that its impact remains ambiguous.
In any case, as the practice of child sexual abuse is almost entirely underreported in the Indian context, mainly because most offenders are family members or near acquaintances of the victims, the instituting of the death penalty may discourage families from reporting cases. The fear of sending a family member or someone familiar to the child to death might even discourage and dissuade victims and their guardians from coming forward, further entrenching the culture of silence already surrounding child sexual abuse. • Implications on Justice for Victims Apart from the deterrence argument, retribution is indicated as the other reason that justifies the imposition of the death penalty. This approach may, to some extent, provide solace in seeing some form of retribution meted out to a perpetrator, but it threatens the very concept of pursuing justice for victims.
The legal process involved in the administering of the death penalty usually takes its own sweet time and undergoes layers of appeals and reviews most probably years. Such a drawn-out process could re-traumatize children as they would have to relive their experiences in some sort of long legal battle. The introduction of the death penalty will further dilute the key safeguards offered under the POCSO Act. Such as the reverse burden of proof, which places the onus on the accused to prove their innocence, a provision essentially aimed at reducing the problems in prosecuting child rape cases. However, in this system where giving some fellow the death sentence is based on such an arrangement, it becomes a highly critical constitutional and ethical issue.
D. Human Rights Criticism and Legislative Response to the Death Penalty Another human rights organization, Amnesty International India, believed that our nation would not be safe for our women and girls if those criminals were just hanged. Laws must be properly applied and enforced, but more importantly, our society's ingrained patriarchal mentality must be changed. Similarly, in the Nirbhaya case3 also, Advocate Indira Jai Singh pleaded with the mother of the victim to pardon the convict's death penalty, we do understand here as well the plight of the mother who wants to take revenge for what had happened to her daughter, but the authorities and the judiciary should keep in mind the overall effect of the same and shouldn't just focus on the momentary effect of punishment. The International Commission of Jurists also condemned the death penalty in the Nirbhaya case.
However, the citizens were full of anger and there was a need to punish these crimes compelling the legislature to add the death sentence in the act. The legislature disregarded the body of precedent regarding the repeal of the death sentence. Let us discuss how inclusion can be helpful for society. E. Gaps in the Legislation: Missing Provisions in the POCSO Act
Structural Issues and Lack of Implementation The real issue dealing with child sexual abuse does not lie in the severe punishment but in the loopholes in the criminal justice system itself. The POCSO Act, being a victimfriendly law, was enacted to ensure speedy trials and more effective prosecutions. However, its implementation has been thwarted by inadequate, duly trained judges, prosecutors, and other employees who can handle such sensitive cases. Studies show that the conviction rate still has only around 29.6% and the pendency of cases is at a high figure, which stands at about 89%. This undoubtedly postulates a weak implementation of the law rather than the inadequacy of the accompanying punishments. • Consent It also omits to specify when the kids provide their legitimate permission. A child is
3 Nirbhaya case (2012) 4 SCC 409.
considered mature when they are 17 years old or older, although even then, their maturity level should not be taken into account. It would be unfair to the other party and impede the legal process that it would bring about. Furthermore, a child's trauma does not decrease when an abuser passes away. In our society, secondary victimization is another prevalent issue. The children are even blamed for the act by the family members; therefore, to address this issue, rules that are properly implemented and public awareness raised are required. The reality that the majority of child sexual abuse perpetrators are family members and that the death sentence is an excessively harsh punishment for them has also gone unconsidered by the Legislature. As a result, it is likely that fewer of these cases would be reported. In addition, abuse occurrences make youngsters extremely sensitive and disturbed.
Moreover, since the death penalty was implemented, there is a greater necessity to conduct thorough investigations in order to establish the specifics of the crime. Because of their high position of responsibility, the authorities must repeatedly question the kids, which could exacerbate the anguish they are already experiencing. Furthermore, even at this young age, the meek and innocent kids would not want to be the reason someone dies, and it could follow them for the rest of their lives. This is not to say that the wrongdoers should go unpunished; rather, it suggests that there are alternative means of holding them accountable while still providing the much-needed closure for the victims and their families.
• Socio-economic Realities The death penalty disproportionately targets the marginalized and economically disadvantaged, according to a study in the Death Penalty India Report (2016), whereby 74% of death row prisoners are of a poor background, and 76% come from socially marginalized communities. This socio-economic bias would automatically trickle into cases of child rape, making it that the marginalized are more likely to be given the death sentence, while the issue of child sexual abuse goes unaddressed in society. F. Conclusion Human life is a gift from God, and it is never within our power to take someone else's life. The death sentence may temporarily satisfy the authorities, but it will not be sufficient in the long run. It is a tactic the administration has used to cover up its mistakes.
Since the kid victims in most cases know the abusers and are reluctant to make charges against them, the death penalty under the POCSO legislation is not a viable solution. In addition, the crime must be proven "beyond reasonable doubt" before the death penalty may be applied, and to do so, the youngsters must be repeatedly questioned, grilled, and asked offensive questions. It is still unclear why the death sentence was included even though it has been repeatedly shown to be ineffective as a deterrence. The Law Commission Report from 2015 made similar recommendations. The victims and their guardians may receive some reprieve from the death penalty. But this is not the country's legislative body's primary concern. Instead of taking retribution, society is created more vibrant.
In certain situations, the death penalty also postpones the legal proceedings, increasing the danger to the victim. Consequently, authorities ought to concentrate more on alternative penalties rather than the death penalty. • Abuse by Authority The government may sometimes abuse the death sentence in an attempt to project an image of justice. Its main purpose is to conceal their inability to address national safety issues. In 2019, four years into the sequence of NLUD's annual statistics under Project 39A, the largest award of death penalties was observed in relation to murder with sexual offenses. Even with this increased incidence, women and children are still unsafe. Also, in the case of Ravi v. Maharashtra4, As we have already covered, the judiciary gave undue weight to the aggravating circumstances while ignoring the mitigating ones.
We cannot allow politics dictate a man's fate; no brief respite should be mistaken for a long-term fix. Authorities and the judiciary may abuse the provision further for their own gain and to win over the ruling party. In my view, the death sentence does not affect deterring criminal activity, particularly when the offender is a young child who is easily tricked. While it can serve as a temporary fix for our criminal justice system, the death penalty is not a panacea. Since the death sentence is ineffective as a deterrence, the legislature must find other forms of punishment. Therefore, I do not believe that the POCSO Act's inclusion of the death sentence will help the country of India's problem with child sexual abuse.
4 Ravi v State of Maharashtra [2019] 9 SCC
622 REFERENCES
1) Khushboo Sharma, 'Inclusion of the Death Penalty in Light of POCSO (Amendment)
Bill, 2019' HNLU Student Bar Journal (17 August 2020) http://sbj.hnlu.ac.in/inclusionof-the-death-penalty-in-light-of-pocso-amendment-bill-2019/
2 Tanvi Rahim and Sannidhi Buch, 'The 2019 Amendment to POCSO
A Socio-Legal Analysis' The Criminal Law Blog (16 August 2020) https://criminallawstudiesnluj.wordpress.com/2020/06/06/the-2019-amendment-topocso-a-socio-legal-analysis/
3) 'Forgive Rapists Like Sonia Gandhi Forgave Her Husband’s Killer: Indira Jaising to
Nirbhaya’s Mother' Times Now News (18 January 2020).
4) Gale Andrew and Aishwarya Mohanty, 'Death Sentence Despite Dissent? Here’s What
Legal Precedents Say?' Project 39A, NLU Delhi (23 August 2020) https://www.project39a.com/blog/2020/1/29/death-sentence-despite-dissent-hereswhat-legal-precedents-say
5) Section 29,33,35 Protection of Children from Sexual Offences Act 2012.
6 HAQ
Centre for Child Rights and Forum Against Sexual Exploitation of Children, Implementation of the POCSO Act: Goals, Gaps and Challenges (2017).
7) National Crime Records Bureau, Crime in India Statistics 2016 (Government of India).
8) ‘Ryan International Murder Case Unravels: CBI Detains Student, Clears Conductor’
The Indian Express (9 November 2017).
9) The Criminal Law (Amendment) Ordinance 2018.
10) National Law University Delhi, Death Penalty India Report (Volume I) (NLU Press,
May 2016).