Daily Times

In the wake of nationwide outrage over rape of a minor girl ‘Asifa Bano’ in the state of Jammu and Kashmir, the Indian government were to promulgate under immense pressure an ordinance declaring the death penalty to child rapists of under 12-year-old-girls. The incumbent government of India has actually promulgated it days ago — wherein the imprisonment of seven years is enhanced to ten years in case of rape of women, and in rape of girls under 16, the cabinet increased the minimum punishment to 20 years from 10 years. The document makes no mentioning of the rape of boys or men. The executive ordinance cleared that police are made to complete investigation within two months and extend maximum punishment for the rape of girls under the age of 16.

As a result of the promulgation of executive ordinance, the criminal law amendment ordinance seeks to amend the Indian Penal Code (IPC), which it inherited as the British colonial legacy, the Evidence Act, the Code of Criminal Procedure (CrPC) and Protection of Children from Sexual Offences (POCSO) Act to introduce a new provision to sentence convicts of such crimes to death.

The government of India had promulgated executive ordinance with a view of tackling rape cases across the country. The increase in rape cases in India for some time had raised concerns, following which the government had decided to consider the death penalty for child rapists. Before the death penalty for child rapists, India had the death penalty for offences of murder, kidnapping, etc.

The question is whether awarding the death penalty to child rapists will resolve the issue of rape of children in India or not. It is in the opinion of the author that the death penalty is a medieval time punishment which is no longer effective and had never been effective during the period of the French revolution. The decision of Indian government to instate the death penalty for child abusers lacks thoughtfulness. Child rapists are operating across the world. For instance, let us consider the example of Great Manchester instance where a plethora of Asian men were found to be guilty of having molested underage girls, raping them without their consent. The Crown Court of Manchester sentenced them to life imprisonment. The viewpoint of the author is that the death penalty is no answer at all. The Indian government, after all the efforts, has to improve its governance and introduce policies and strategies for protecting their children.

The decision of the Indian government will not be welcomed by the international rights community and countries where the death penalty is no longer in practice

Moreover, Pakistan is a country where the death penalty is operative since its inception. At the time of independence, it had three death penalty offences, and now the number has increased to 27. In Pakistan, rape is punishable by death and so is murder. Both Pakistan and India are products of the British colonial legacy meaning thereby issues relating to social menaces and legal in nature are more or less similar in nature. Since the case of Zainab Ansari in Pakistan, the rapes with underage girls had not been stopped across Pakistan at all. Moreover, the reinstatement of the death penalty in Pakistan in 2014 has not reduced the ratio of murders at all. The government of Pakistan had reinstated the death penalty with the view of combating the terrorism-related activities. Instead, they executed those who were convicted of ordinary criminal offences.

The decision of the Indian government to instate the death penalty for child rapists would do nothing at all. It is in the opinion of the author that India and countries where the death penalty is being practised must draw a system of non-penal social engineering schemes. The general public including the prisoners must be made responsible citizens. Those who accidentally commit a crime of rape or other offences must be given a second chance instead of hanging them.

According to a study by Amnesty International-India, those girls who were raped in recent times were kidnapped by their relatives. Furthermore, the conviction rate in rape cases in India was only 28 percent, implying that 72 out of 100 suspects were going unpunished. India and countries party to the death penalty, in reality, have to improve their criminal justice system with full force instead of introducing the death penalty. India’s decision of instating the death penalty to child rapists is to appease the right wing conservatives across the country. In my opinion, it was a move of the incumbent government to keep its right-wing voters intact for upcoming polls next year.

The decision of the Indian government will not be welcomed by the international rights community and countries where the death penalty is no longer in practice. The European states are not a party to the death penalty, and rape of underage girls is prevalent with them. Instead of introducing the death penalty in their legal system, those countries tend to educate the general public, especially the youth. The cases of Asian men in Great Manchester in England shocked all of us. Despite everything, they were sentenced to life imprisonment. The government of England and all corners of the state protected their right to life despite their heinousness crime.

The writer is an advocate based in Lahore. He can be reached at greenlaw123@hotmail.com

Published in Daily Times, April 29^th 2018.