Sample Material of Current Public Administration Magazine
Law and Order Administration
::Death and Deterrence::
Haryana and Rajasthan joined Madhya Pradesh in introducing the death penalty
for rape of a child below the age of 12 years. Maharashtra and Karnataka too are
considering it. These amendments provide a judge with the option of imposing the
death penalty, and also increase the mandatory minimum sentence from 10 to 14
years.
These amendments are primarily triggered by the concern over increasing
incidences of sexual assault against young children, which is undoubtedly
significant. However, the response must be thoughtfully curated based on what
works. In order to provide an effective response, it is imperative to analyse
the present system and understand why it has failed.
The Protection of Children from Sexual Offences Act (POCSO Act) was enacted
in 2012 to address the growing sexual violence against children and the
inability of the Indian Penal Code to deal with this concern. The Act provides a
graded classification of sexual offences against children, prescribes higher
mandatory minimum sentences for such crimes, mandates several processes and
safeguards to ensure a child-friendly trial such as the designation of “special
courts”, child-friendly process of recording victim testimony, provision of
compensation, protection of the identity of the child, etc. The Act also
contains extensive mandates for procedures to be followed by the police,
magistrates and medical personnel handling victims of child sexual abuse.
Although more than five years have elapsed since it came into force, the system
is replete with failures and shortcomings. Crime in India, 2016 revealed that
19,920 children were allegedly victims of child rape in 2016 alone. However, the
conviction in 2016 for such crimes stood at an abysmal 28.2 per cent while a
majority of cases (89.6 per cent) are still pending for disposal.
One of the reasons for low conviction rates is the vast majority of victims
turning hostile. A recent five-state study by the Centre for Child and the Law,
National Law School of India University (CCL-NLSIU) on the functioning of the
special courts under the POCSO Act in Delhi, Assam, Maharashtra, Karnataka and
Andhra Pradesh found that in 59 per cent of cases, children turned hostile. The
complex and sensitive nature of sexual abuse, coupled with the fact that in a
large number of cases (94.6 per cent) the rapist is known to offender, result in
victims turning hostile.
The studies also find that the likelihood of the victim turning hostile is
extremely high in cases of abuse within the family due to the pressure to
“settle” or compromise the matter, lack of support systems, and other
socio-economic factors which hinder the victims from effectively and confidently
testifying against the accused. Higher penalties will only lead to aggravating
this concern, particularly with regard to cases of incest. The study also finds
that where children do testify against the accused, several systemic gaps such
as lapses in investigation, lack of child-friendly procedures, challenges
related to age-determination, poor appreciation of the testimony of the child
adversely affect the conviction rate.
Further aggravating the situation is the concern that a majority of child
sexual abuse goes unreported. A Ministry of Women and Child Development study
(2007) surveying 17,220 children from 13 states found that an alarming 53.22 per
cent of them had faced some form of sexual abuse amongst which 52.94 per cent
constituted boys. The CCL study, however, shows that only 2.5 per cent of the
victims in the five states studied were boys. Thus, only a fraction of the
incidences of sexual abuse against children enter the criminal justice system,
amongst which only a minuscule fraction end in a conviction.
Without effective implementation of the law, a penalty — no matter how severe
— will not work in reducing crime. The mandatory minimum sentences for sexual
offences was already increased by the POCSO Act and the Criminal Law Amendment
Act, 2013 specifically to address growing sexual crimes. These penalties are
rendered meaningless in the face of thousands of crimes that go acquitted, or
worse, undetected.
While death penalty is being flaunted as the solution that will scare away
future predators, our low rates of conviction do not even have the effect of
creating a fear of accountability in the first place. Instead of pursuing
drastic remedies, we need to urgently devise ways to bolster the existing
criminal justice and child protection systems and ensure higher convictions,
higher reporting of offences, put in place preventive strategies, and address a
large number of systemic and operational gaps.
(Published in The Indian Express Written by Shruthi Ramakrishnan)
Get this magazine (Current Public
Administration) free if you purchase our any of the below courses:
