Ali, the co-founder and co-director of Haq – Centre for Child Rights, is against the death penalty and believes that the real emergency is to address the non-compliance of existing policies.
Not everyone is welcoming Saturday's Ordinance, with a section of public dubbing it as a knee-jerk reaction to quell the natiowide outrage against the perpetrators of an eight-year-old girl raped and murdered in Jammu & Kashmir's Kathua.
The ordinance comes a day after the Centre informed the Supreme Court its decision to amend provisions in the Protection of Children from Sexual Offences (POCSO) Act to include the death penalty for rape of minors under the age of 12 and aggravated sexual assault of minors.
"This is a politically calculated move in an election year. Time and again, research has shown that harsh penal measures have only increased instances of the offence, as opposed to acting as deterrent," Bharti Ali said.
Ali, the co-founder and co-director of Haq – Centre for Child Rights, is against the death penalty and believes that the real emergency is to address the non-compliance of existing policies.
Interestingly, after the December 2012 Nirbhaya gang-rape case, the Justice JS Verma committee, which was looking at amending relevant provisions in the IPC, had opposed the death penalty even in the rarest of rare cases. However, in 2013, the State amended the provisions of Section 376 of the IPC and introduced the death penalty as the maximum punishment, especially for gang-rape.
The committee had rejected a proposal for chemical castration, citing that it wouldn't treat the social foundations of rape. Observing that the death penalty should not be awarded for the offence of rape, as there was considerable evidence that it didn't act as deterrent to other serious crimes, it had recommended life imprisonment instead.
What's more, in October 27, India had voted against the United Nations Human Rights Council (UNHRC) resolution on the "question of the death penalty."
India was one of the 13 nations who had voted against. The UNHCR resolution called upon the UN secretary general to dedicate the 2019 supplement to his quinquennial report on capital punishment to the consequences arising at various stages of the imposition and application of the death penalty on the enjoyment of the human rights of persons facing the death penalty.
India's dichotomy with the death penalty continues when one observes its record for actually executing its rapist, or any other convicts for that matter.
Yakub Memon, convicted of financing the 1993 Mumbai serial bombings, was the last person to be hanged on July 20, 2015. Before him, the last three executions in India were the February 8, 2013, hanging of Muhammad Afzal, convicted of plotting the 2001 attack on India's Parliament, the hanging of 2008 Mumbai attack gunman Mohammad Ajmal Amir Qasab on November 21, 2012, and the hanging of Dhananjoy Chatterjee in 2004 for the murder and rape of a 14-year-old girl.
Chatterjee's hanging was the country's first execution since 1995, statistics from the Cornell Centre on Death Penalty suggest. It is pertinent to point out, that India's last handing for rapist, Chatterjee, was 14 years ago.
There are 371 people on death row as of December 31, 2017. National Law University's Centre on Death penalty has analysed that the death penalty imposed for murder simpliciter and murder involving sexual violence constituted 74% of the total crimes in 2016 and 86% of the total crimes in 2017.
In 2016, 24 were convicted for sexual violence whereas in 2017, the number rose to 43 — nearly double that of the previous year. "According to NCRB statistics, 2015, Madhya Pradesh had the highest recorded number of rapes and the highest number of cases recorded under the POCSO Act," the report reads.
MP Chief Minister Shivraj Singh Chouhan heralded the proposed amendments and has vocally supported the idea of extreme punishment to combat sexual offences. However, several human rights and rights activists criticized this move citing its ineffectiveness as a deterrent.
"The acquittal rate in rape cases is high as victims turn hostile. Even the courts are not happy over the fact that their discretion is taken away and they are forced to hand out the mandatory minimum and maximum penalties in the event the case reaches its logical conclusion," Ali said.
Ali asserts the ordinance passed today is merely cosmetic. The State must focus on effective implementation of the existing laws, she says. "Globally, the trend of convicts ending on the death row is reversing, as opposed to India where the number seems to increase," she added.
"The government's decision to introduce the death penalty through an ordinance is a knee-jerk reaction that diverts attention from the poor implementation of laws on rape and child protection. Studies have shown that most perpetrators are "known" to child victims—introducing the death penalty in such circumstances will only silence and further endanger children. Both the Justice Verma Committee and India's Law Commission have questioned the deterrent value of death penalty in preventing crimes," Amnesty International said, reacting to the ordinance.
Some major rape cases
Kathua rape
In January 2018, an eight-year-old girl, belonging to the Muslim Bakerwal community, was gangraped by eight men in a temple in Kathua, Jammu & Kashmir. She was reportedly held for days in the temple and raped, in what appears to have been an effort to drive out the remaining members of the community from the region.
Jind rape
In January, the body of a 15-year-old girl from Jind, Haryana, who had been missing for three days, was found in the village of Jhansa. Medical reports showed that she had been brutally gangraped and her private parts had been mutilated. While the main suspect was an 18-year-old boy from the village, who she had reportedly known, he was found dead a few days later, from the Bhakra canal in Karnal.
Panipat rape
In Panipat, an 11-year-old girl was raped and murdered by two of her neighbours and reportedly committed necrophilia after they had murdered her. While the two accused in the case had been arrested, another rape of a minor took place within days.
Surat rape
Earlier this month, a body of an 11-year-old girl, with as many as 86 injury marks, was discovered. The postmortem report suggested the victim was abducted and raped for at least eight days, before she was strangled to death.
Lalunggaon rape
A minor girl was gangraped and then set on fire. Three men, out of whom two are juveniles, had raped the class five student in March, with a third accused still at large.
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