AMITABH SRIVASTAVA | 24 JULY, 2019
Death Penalty for Rape of Kids is No Solution
POCSO Amendment Bill
Introducing the Protection of Children from Sexual Offences ,POCSO (Amendment) Bill, 2019 in Rajya Sabha yesterday Smriti Irani the Minister for Women and Child Development initiated a process that had been left unfinished in the last Parliament.
This Bill had been introduced in the 16th Lok Sabha but lapsed when it's term got over.With an increasing number of cases being reported recently the Union Cabinet has now approved amendments to POCSO allowing death penalty for all cases of 'aggravated penetrative sexual assault' against children.
But high-lighting this aspect in every press release shows that the government is only pandering to the populist mood to satisfy public anger on a very sensitive issue. But when this was introduced initially as well child rights activists had called it counter productive.
They argue that since most sexual offences are committed by known persons the reporting of cases would drastically go down now under pressure from parents.
They also submitted memorandums saying that with such a drastic punishment now the offender would in most cases try to kill the child after raping her so that there was no evidence left.
Secondly, those ready to hail the death penalty clause as if they would now witness bodies of offenders hanging from trees every day don't understand that death is allowed only for 'aggravated sexual penetration' which basically means gang rapes and rapes by people in supervisory position not for every individual pervert.
The amendments cover 21 kinds of sexual crimes that come under the definition of aggravated penetrative sexual assault against children. This Amendment has also enhanced the minimum punishment in such cases from the existing 10 years to 20 years and the maximum punishment to life imprisonment or death penalty.
By the way, life term now means till the time the culprit is alive not the earlier version of 14 years and coming out after that.
The Criminal Law Amendment Act 2013 which came into existence after the Nirbhaya tragedy has already clearly laid down stringent punishment for sexual offences against women.
But the problem, as anyone lodging a complaint would tell you, begins at the very beginning- lodging an FIR.
The Criminal Law Amendment Act 2013 states categorically that if a policeman refuses to lodge an FIR against rape he can be also be sent to jail.
When I asked Maneka Gandhi the former Minister as to how many policemen had been sent to jail for not registering an FIR, her response was that they were seized of the problem and were working to increase the numbers of women in the police force to at least one third. But we have it on record that so far the presence of women in the police is a dismal 7 to 8 per cent on the national average.
I was part of a review meeting organised by the Delhi Police at the instance of the Lt.Governor of Delhi with NGOs and Councellors who are an essential part of the Crisis Intervention Centres in Delhi last year.
About 12 out of 30 Councellors who attended the meeting told it to their face that SHOs refuse to lodge FIRs, especially in the night.
The Councellors living in far-flung areas are also supposed to be provided transport to reach the police station at night but Delhi Police personnel put up their hands in this, citing lack of resources.
Some complained that the victims had to wait for three to four hours at the police station before they could lodge their complaints, which is a crucial lapse. Many times by the time the Councellors reached the Police Station, the victim had been pressurised to withdraw the complaint.
Unfortunately the excuse of jurisdiction exists even today.Those of us who started our journalistic careers as crime reporters heard the term jurisdiction in its worst form when the Ranga Billa case of the 70s made headlines. The brother and sister Sanjay and Geeta Chopra were killed by the duo after they had taken a lift from them. A Good Samaritan who gave them chase on his scooter was turned away by the police who told him that the area where he saw the victims did not fall in their jurisdiction.
Even with such laxity if the Supreme Court was told by its Registrar recently that the data on sexual crimes against children from January 1 to June 30 this year has revealed that 24,212 FIRs had been filed across India it means something.
Talking to this writer Naazish Naqvi, a lawyer working with a child rights NGO in Delhi, said, "The problem is not with the laws but it's implementation. The Supreme Court data itself reveals what we have been saying when it shows that of over 24,000 cases, the trial courts have decided only 911 cases, which is about 4 per cent of the total cases registered."
There are very genuine reasons why trials do not reach prosecution stage. At a meeting of NGOs on the occasion of Nirbhaya's anniversary, many complained that since the accused were released on bail without informing them, they were going back and terrorising the complainants who came from vulnerable families in most cases.
There have been instances where rape victims have committed suicide after registering complaints which proves that life even for adults surviving the trauma is not easy, what to say of children.
But death penalty is going to another extreme. Talking about the contentious issue, Deepshikha Singh, Senior Manager with another NGO had this to say, "No one would have a fight about strict laws relating to rapes of children but fear of death penalty could actually lead to the victims being killed by the perpetrators.
Some lawyers also also have a problem with the definition of children under POSCO. Under this law if children aged 16 or 17 have consensual sex it would be held as rape, if their parents find it out.
"Come on, this is modern India" said an activist "where children have access to mobiles, Internet and all kinds of movies they can watch on Netflix. If these children are in love and of their own free will they decide to experiment with sex, treating it as rapes would be disastrous for society."
Actually, the Madras High Court has already given a ruling that teenagers above the age of 18 should not be booked under POCSO if they are in a consensual relationship.
However the final word on the question of death penalty as deterrent must go to Faizan Mustafa, the Vice Chancellor of National Academy of Legal Studies and Research ( NALSAR) who in a program with Ravish Kumar revealed that there was a time when even pick-pockets were hung to death publicly on trees in England. But at one such public hanging at least half a dozen people had their pockets picked!
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