The Death Penalty and the Kathua Rape Case: Intertwined and Apart
The Kathua Rape Case Judgement today once again kick starts a necessary conversation on the legality and necessity of the death penalty in India.
In 2018, subsequent to the rape and murder of an eight year old girl in Kathua, in Jammu and Kashmir, the Indian government passed an ordinance allowing the death penalty for individuals convicted for the rape of children younger than 12 years. This move was welcomed by many as necessary, and criticised by some as reactionary. Today, the Kathua case comes to a head, with convictions and sentences being handed down from the trial court at Pathankot.
The trial court has chosen not to award the convicted individuals in the Kathua case with capital punishment, despite the victim being under 12 years old; and despite evidence showing signs of the attack being part of a larger design of ethnic cleansing in the area. Nevertheless, the question at hand back then, and now, is this - What is the value of continued emphasis on capital punishment in the face of increasing crime against children?
Consider this - as of December 2017, there were 371 prisoners on death row in India, the oldest case being a conviction from 1991. Also consider this - in the last 13 years, only four death row prisoners have been executed. Of these, three were convicted of terrorism, and one was convicted of raping a minor. In 2018 alone, trial courts imposed 162 death sentences - the highest in a calendar year since 2000.
Also consider how long and drawn out the process is designed to be. The journey of capital punishment follows five stages from trial onwards. First, we begin with the award of the death penalty by the trial court, or the court of sessions. Once the death penalty has been passed down, there will be a mandatory confirmation hearing before the State High Court. This is followed by the third stage - proceedings before the Supreme Court of India. The fourth stage, if the death penalty is still upheld, is to file a request for pardon before a Governor of the State or the President of India. If the request for pardon is rejected, the final stage is the filing of a writ petition.
So does this ordinance, ostensibly passed to protect children from sexual crimes, help prevent further abuse? According to the National Crime Records Bureau, in 2016, in 94% of the cases of child abuse, the perpetrator was known to the victim. In many cases, the perpetrator was the child’s own father, grandfather, or other relative. This makes reporting difficult for the guardians of the children who face abuse. Despite outrage about the abuse, family is often reluctant to file criminal proceedings against others within their own fold.
Although POCSO was drafted and passed specifically for the protection of children, very little has been done to implement the Act in a more effective way. Government dialogue is often centred on harsher punishment, but prevention, awareness and protection is instrumental in addressing the issue of child abuse in India.
We understand the desire for stronger action. However, placing the locus of this debate on harsher punishment can only be seen as reactionary symbolism from a government at its wits end. What the government needed then, and now, is a widespread consultation from child rights groups and other stakeholders on how to better implement the statutory protections within POCSO.
Coming back to the issue of capital punishment - we defer to the NLU Delhi report on the Death Penalty in India, “…a meaningful national conversation on the death penalty cannot be limited to the heinousness and brutality of the crimes involved. It must also involve a rigorous and frank evaluation of the criminal justice system that is used to administer the death penalty and a recognition of the structural realities that operate within it.”