This article has been authored by Nishtha Kheria, a fourth year student at Amity University, Noida.
In our society sexual abuse of children is a dark reality. For the protection of children from such abuse in our country, The Protection of Children from Sexual Offenses Act 2012(POCSO) was introduced. This act came into force from 14th November 2012. This act was amended in 2019 when both the Houses of the Parliament had passed The Protection of Children from Sexual Offences (Amendment) Bill of 2019 so that they can curb the evil of sexual abuse of children from the society.
In this amended act death penalty was introduced which is mentioned in Section 6 of the act. 20 years of rigorous punishment is also awarded. Before the amendment of this act, the imprisonment was for 10 years which could be extended up to life imprisonment was increased to 20 years by the said amendment. Due to the increase in the cases of child abuse, the lawmakers had to impose stricter punishment which is imposed in even cases of rape without murder. Child abuse in our society is an evil that is inhumane, intolerable and shocks the very conscience of human mind and there is a hope that by imposing capital punishment, vulnerable children can stay safe.
The Bill is welcomed in by some respects because it also defines child pornography, and also prescribes punishment for the same. It has even widened the concept of sexual assault.
It is expected that the amendment of 2019 will reduce the act of child abuse because of the stringent penal provisions which are added to the act. It will help in protecting the children at the time of their sufferings and will ensure that it will deter the perpetrators from committing sexual abuse on children. Furthermore, determining lucidity for the child abuse and their punishments. It assures gender equality because it covers within its ambit the sexual assault taking place on both the minor boys as well as girls.
Debate surrounding the introduction of death sentence
The introduction of the capital punishment by the 2019 amendment has led to a debate in the legal fraternity on the potential effects of such a move. It is argued that the death penalty does not create any deterrent effect that exceeds life imprisonment. Debate about death penalty would not be complete without scrutinizing the Indian jurisprudence revolving around the same.
In the case of Bachan Singh vs The State of Punjab the court had held that life imprisonment is considered to be a rule and death sentence would be the exception for it. In such cases death sentence will not be awarded it can only be awarded in some rare cases. Then later in the case of Macchi Singh vs State of Punjab, there was a condense in the various guidelines which were issued for the application of the doctrine of rarest of rare in the cases which involve the death penalty. These included:
How the murder was committed?
What was the motive behind the crime?
What is the nature of crime i.e. Social or anti-social?
The extent of the crime committed.
The various traits associated with the victim
After analyzing the above-mentioned circumstances, the court will then decide whether the accused should be awarded with death sentence or not.
If the new amendment is closely studied then it will bring to the light that the lawmakers have shown aloofness to them who were in the support of abolition of the death sentence entirely. Our society has the nature of not forgiving the people who have committed these heinous crimes which further leads to a necessity to introduce death penalty as a punishment.
Since this new amendment came into force in 2019, courts have provided a death sentence as a punishment in many cases such as in the case of Ravi vs State of Maharashtra in which a horrifying nature of rape took place and then the murder of a 2 year old girl in which the court had awarded death penalty to the accused without even thinking twice.
Alarm over death penalty:
Many of such crimes take place within the family where the family members abuse the victim. So, if such penalty will be provided then it may lead to the non-registration of the crimes. And it would lead to the intimidation for the life of the minor because the maximum punishment that is provided for murder is death.
After the case of Nirbhaya Rape, Justice J.S Verma Committee in 2013 had found that the aftermath was against the death penalty in the cases of rape. Further in the 261st report of the Law Commission of India, 2015 had demanded the abolition of the death penalty in the cases except those related to terrorism.
The socio-legal impact:
After extensive research, it can be said that the death penalty can be considered as a preventive measure and it will further focus on the doctrine of ‘eye for an eye’. It can lead to the people to think before doing any offense. But in the Report in 2015 by the Law Commission on the topic of the death penalty had stated something different. It stated that about 28.9% of the cases are usually where the trial courts sentenced a death penalty but then the accused was acquitted by a higher court. It can be said that the death sentence is not severe but in reality, life imprisonment can be even more severe.
The death penalty can be seen as a really good idea for deterring the assaulters but it is not clear why the lawmakers have introduced it. Advocate Shailabh Kumar had stated that due to this new amended act, the number of cases relating to rape and murder can get reduced. A relief can be provided to the victims but it can never be a proportionate relief because the social condition of a victim can never be reduced by only punishing the criminal. A study which was done by the PCAR had stated that the main cause of these sexual abuses and violence is poverty and can affect many victims.
The cases which are included in the POCSO Act, a death penalty can only provide a small amount of relief to the victims but then the victims even go through the secondary victimization. This is referred to as the insensate behavior and the attitudes of the society which will further lead to blaming the victims. Such kind of secondary victimization is often experienced by the victims through their family members which can lead to the effects on their mental health. Moreover the number of victims who receive a death penalty is very less because the court provides the death penalty in only rarest of the rare cases.
For instance, if we talk about the cases from 2012 and 2015 the court did not consider cases related to child abuse for awarding death penalty which were later prescribed death penalty by the legislature in the 2019 amendment of POCSO. This shows how the judiciary will be compelled to award death penalty to cases which earlier were given a maximum punishment of life imprisonment.
The reasons for the approval of the POCSO act of 2019:
In recent years the cases related to child abuse is rising at a very higher pace which indicates the inhumane minds of the abusers. Such cases are rising because the children are the easiest prey because of their age and their physical susceptibility. There is an urgent requirement to take severe steps to prevent the heinous crime of child abuse in the country.
Hurdles in implementation:
The issue which arose while implementing the POCSO act was that in India there is an inadequate number of special courts and a lack of investigators which have a specialization in the child victims which needs to be resolved. The Supreme Court had further directed to form special courts within 60 days in all the districts across the country but about 100 cases are pending in the act which needs to be solved. The death penalty should be properly debated and should only be provided in the rarest of rare cases. There is also a need to increase awareness in the society so that such crimes can be avoided.
There is a need for capital punishment which can be explained in the case of Ravi vs State of Rajasthan. In such cases, the perpetrator is awarded the punishment following the gravity of the crime. If a serious crime is not punished with a severe punishment then there will be no deterrence in the minds of people. No person can argue that the death sentence should get abolished by simply stating that it is infringing the human rights. Therefore, it is evident that the courts should not just provide with the death sentences and should follow the principle of reverence of life. So, all the punishments which are provided should be awarded by keeping in mind the nature of crime and should act as an example for all.