India’s death penalty for child rapists questioned by activists, judiciary

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A Kashmiri demonstrator holds a placard during a protest calling for justice after the recent rape and murder of an eight-year-old girl in the Indian state of Jammu and Kashmir, in Srinagar on April 16, 2018. Photo: AFP

As India introduces the death penalty to punish rapists of children under the age of 12, the Delhi High Court and child rights activists are expressing fears that it will make rape victims more vulnerable to being killed.

Indian President Ram Nath Kovind on Sunday signed an ordinance that will allow courts to hand down stringent punishments, ranging from a minimum of 20 years in jail to the death penalty, to those convicted of raping children below the age of 12 years. The ordinance was cleared on Saturday by the federal cabinet after nationwide outrage over the rape and murder of an eight-year-old girl in Jammu and Kashmir state.

On Monday, the Delhi High Court asked the government if concerned authorities had conducted any scientific assessment before passing the ordinance. A bench consisting of acting Chief Justice Gita Mittal and Justice C Hari Shankar also asked the government if it had considered the effect of this ordinance on the victims of child rape, The Indian Express reported.

“If the punishment for both murder and rape is [the] same, it is a huge consequence. Can you imagine now, how many offenders would allow their victims to survive now that rape and murder have the same punishment?” said the bench.

Activists have concerns similar to those of the Delhi High Court.

“In a country where most rapes are perpetrated by family members, invoking [the] death penalty will only increase the chances of acquittal.… Most of the cases will not be reported. There is a reason why the death penalty for child rape exists in only about 13 countries or so, most of them Islamic,” Bharti Ali of the HAQ Center for Child Rights was quoted as saying by the Press Trust of India (PTI).

Their concern is rooted in the fact that more than 90% of the rapes in India are committed by family members or persons known to the victims, according to data from the National Crime Records Bureau (NCRB).

Activists are also questioning whether making laws more stringent would deter rape while the conviction rate remains quite low. In cases of alleged rapes of women, the conviction rate is around 24%, whereas it is even lower, at 20%, under the Protection of Children from Sexual Offenses (POCSO) Act, NCRB data show.

“Studies have shown that most perpetrators are ‘known’ to child victims – introducing the death penalty in such circumstances will only silence and further endanger children,” Asmita Basu, programs director of Amnesty International India, said in a statement. “Instead, the government must allocate adequate resources for the effective implementation of existing laws, improve conviction rates and ensure that justice is done in all cases of child abuse.”

Rights groups such as Amnesty International and Child Rights and You (CRY) have also called the ordinance a “knee-jerk reaction” and said it was diverting attention away from the poor implementation of existing laws on rape and protection of children.

As the ordinance has received the president’s nod, the Indian Penal Code, the Evidence Act, the Code of Criminal Procedure and the POCSO Act will now stand amended accordingly.

For rape of a girl under the age of 16 years and above 12, the ordinance has increased the minimum punishment from 10 years to 20 years. The minimum punishment has also been increased from seven to 10 years for raping adult women.

Among other things, the new measures are supposed to implement speedy investigations and trials of rape cases. The investigation period has been stipulated to be completed within two months from the report of a case, and trials are to be completed within another two months, PTI reported. It also provides for setting up new fast-track courts for rape cases in tandem with the lower courts and high courts.

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