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CRITIQUING THE INTRODUCTION OF THE DEATH PENALTY IN POCSO: A QUESTIONABLE DECISION

Introduction

In a world where innocence often collides with darkness, we find solace in the existence of shields designed to protect the most vulnerable among us. The Protection of Children from Sexual Offences (POCSO) Act is one such shield.[1] This piece of legislation, which was developed in response to the pressing need to protect our children from the clutches of sexual predators serves as a testament to justice, hope, and unflinching dedication.[2]

The POCSO (Amendment) Bill of 2019 make the punishment for sexual offenders more stringent and one of the clauses introduced was the imposition of the death penalty in POCSO for aggravated penetrative sexual assault.[3] The imposition of the death penalty has raised many concerns and stirred a strong debate in society.

Unnao and Kathua Cases: The catalyst for the introduction of the death penalty in POCSO

The death penalty was introduced through the ordinance. This ordinance was brought due to huge commotion right after two brutal incidents in 2018. In the Incident in Unnao of rape and murder published in various newspapers v. State of U.P.[4], a girl aged 17 was gang raped in 2017 and the accused was a BJP MLA. Mohd. Akhtar v. State of Jammu and Kashmir[5] also known as the Kathua case involved the abduction, rape, and murder of a young girl aged eight in a village close to Kathua in Jammu and Kashmir. After India’s policy on women’s and children’s safety was attacked at a World Trade Organisation meeting attended by PM Narendra Modi, the ordinance was introduced.[6]

Shades of controversy

The existing “Crime master narrative”[7] suggests that the death penalty is the ultimate solution for the heinous crime against children. This narrative contends that by applying the death penalty we can achieve justice and deterrence.[8] However, the prevailing crime-master narrative concerning the death penalty tends to ignore certain situations which act as impediments to achieving the aim of POCSO.

(a) Under-reporting:

In the context of sex-related crime, children are more vulnerable among their family members and the people known to them. Based on the information presented in the National Crime Record Bureau, the accused in 94.2% of rape cases was familiar to the victim.[9] It is found in several cases where the court has handed down a death sentence to the accused, and it has been established that the perpetrator was known to the victim, we can look to the case of Laxman Naik v. State of Orissa[10] as an exemplar. In this case, Supreme Court affirmed the death penalty for the accused for the rape and subsequent murder of a 7-year-old girl by her uncle.[11] In Mohd. Mannan @ Abdul Mannan v. State of Bihar[12], Supreme Court awarded a death sentence to the accused for the murder of a 7-year-old girl who was kidnapped, raped, and killed. The court took note of how the offender gained the trust of that little girl and horrifyingly he raped her before strangling her to death.[13]

A crucial question comes up when assessing the potential effects of implementing the death penalty as per POCSO’s guidelines. In particular, the death penalty could exacerbate the prevailing situation of underreporting.[14] This is especially true when there are family members involved as the threat of a family member receiving the death penalty may deter victims and their families from reporting the abuse. The hesitation to report is made worse by the fear of reprisal, societal stigma, and possible conflict within the family unit.

 (b) Deterrence as the illusion:

According to Law Commission Report, there is no empirical data that suggest that the death penalty act as a deterrent to other crimes.[15] The notion that the death sentence deters the potential perpetrators more effectively than alternative penalties is then called into doubt. Arguments against the death penalty frequently focus on the likelihood of erroneous convictions, the permanence of the sentence, and the potential for societal harm when a life is taken by the state. The report also suggests that the death penalty should be removed for all sentences other than terrorism.[16]

 (c) Encouraging Victim Suppression:

The introduction of the death penalty in POCSO poses a risk of an alarming escalation in the murders of victims committed to silence them. This can be predicted from the accused’s intent to destroy any witnesses or evidence that would support their conviction.[17] Thus, the death penalty in POCSO fosters an environment where suppression of witnesses and eradication of evidence become imperative strategies for the accused to secure his acquittal.

(d) Lengthy Procedure:

The implementation of the death penalty would ensure providing a fair trial to the accused to the fullest extent possible. Even after the trial, cases involving the death penalty are litigated for a much longer period in the legal system due to the mandatory confirmation in the High Court, appeal to the Supreme Court, imperative open court review, curative and clemency petition to President/Governor, and then right to contest the clemency application’s denial. There is a clear reason why a death penalty case has so many layers.   These various layers lead to multiple levels of reconsideration since the system has a strong incentive to prevent the execution of an innocent individual. Subjecting child victims to this lengthy procedure will only make their suffering worse and seriously jeopardize the POCSO framework designed to ensure a quick trial for child victims.

An Alternate Perspective

What we need is better implementation, not more stringent laws.[18] As per ‘Study on Child Abuse: India 2007’[19] 72.1% of children did not report sexual assault of a penetrative nature to anyone. One of the causes is that the offender is typically a “known accused.” It is anticipated that the death penalty will pressurize the victim not to report the crime. The ‘Crime in India 2016’[20] reflects a low conviction rate of 28.2% under Sections 4 and 6 of the POCSO Act. The state should focus on gaining the trust of children through expert investigation, contemporary forensic collection, and setting up structures/appointing human resources rather than implanting fear in the mind of the rapist.

The issue of child sexual abuse may not be adequately addressed if the death penalty is used in POCSO cases. Instead, it may serve as a distraction from the implementation of thorough prevention, victim assistance, and public awareness initiatives. A more comprehensive strategy that includes education campaigns, training courses, and improved child protection mechanisms may have a greater impact.

The government must invest in sex education courses for children and start mass education campaigns on gender empowerment to tackle the source of the issue. Police need to be properly trained and made more aware of how to handle and help victims of crime, and the justice system has to be strengthened. Better investigations will result from this, which will increase the likelihood that the perpetrators will be found guilty.

Conclusion

The introduction of the death penalty seems like a robust step to address child sexual abuse but it addresses a significant concern. The appropriateness of the death penalty in POCSO instances is disputed by the possibility of underreporting, the dubious efficacy of deterrents, and the possibility of encouraging offenders to use extreme methods. To address this issue effectively a more all-encompassing strategy that prioritizes prevention, education, rehabilitation, and victim assistance is required. We can better protect children by making investments in these areas and fostering a safe and encouraging environment for POCSO victims.

Author(s) Name: Beauty Gupta (National Law University Delhi)

Reference(s):

[1] The Protection of Children from Sexual Offences POCSO (Act No. 32 of 2012).

[2] Prakhar Singh, ‘Travesing the Criminal Jurisprudence on Minor Sexual Offences under POCSO Act’ [2022] JCLJ 738.

[3] Protection of Children from Sexual Offences (POCSO) Act 2012 s 6(1).

[4] Unnao Rape Case: BJP MLA Kuldeep Singh Arrested, HC Says Law & Order Machinery under His Influence,” Express News Service, April 14, 2018 as cited in Nirvikar Jassal and Pradeep Chhibber, ‘India in 2018- Crises of Institutional Legitimacy and Gender’ [2019] Asian Survey 85.

[5] MANU/SC/0807/2018.

[6] Debayan Roy, ‘POCSO death penalty will spell life threat for victims, prolong trials’ The Print (New Delhi, 12 July 2019).

[7] Craig Haney, Criminality in Context: The Psychological Foundation of Criminal Justice Reform (American Psychological Association OUP 2020) p 18 para 1.

[8] Ibid.

[9] NCRB, Offenders relation to Child Victim of POCSO Act (Section 4 & 6), 350 (2019) available at https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf last seen on 13 June 2022.

[10] MANU/SC/0264/1995.

[11] Ibid.

[12] MANU/SC/0460/2011.

[13] Ibid.

[14] Kush Kalra, ‘Should death penalty be awarded in the case of rape of minors?’ [2019] CPJLJ 57.

[15] 262nd Law Commission of India Report, The Death Penalty, 79 (2015) available at https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081670.pdf, last accessed on 13 June 2022.

[16] Ibid [14].

[17] https://haqcrc.org/wp-content/uploads/2019/04/pocso-national-consultation-report-april-2019.pdf last accessed on 13 June 2023.

[18] Saving Our Children: We need better implementation, not more stringent laws [2016] vol 3 Economic and Political Weekly 9.

[19] http://www.indianet.nl/pdf/childabuseIndia.pdf last accessed on 13 June 2023.

[20]https://ncrb.gov.in/sites/default/files/Crime%20in%20India%20-%202016%20Complete%20PDF%20291117.pdf last accessed on 13 June 2023.