On April 21, 2018 Union Cabinet of India passed an ordinance allowing courts to pronounce death penalty for those convicted of raping children below the age of 12. This move did not happen as a result of long deliberations or after considering learned opinion but as a sort of knee-jerk reaction after the rape and murder of eight-year-old Asifa, a Bakerwal Muslim from Kathua, Jammu and Kashmir. It is this amendment that the Delhi High Court has questioned today.
The latest in the criticism for the sudden move has come from Delhi High Court today, (April 23, 2018) which questioned how such an ordinance could be passed without sufficient research. Ironically, even as the government seems to be eager to send rapists to the gallows, acting Chief Justice Gita Mittal and Justice C Hari Shankar were considering a plea to strike down the amendments made in the rape law after Jyoti Singh’s rape in Delhi in 2012. The court also asked why the ordinance was silent on preventive measures such as sensitisation for youth and juveniles on sexual offences against women, especially minors.
Ruling Bharatiya Janata Party’s (BJP) role in protecting the rapists had triggered widespread protests across the nation. BJP members of legislative assembly had participated in rallies that were taken out by right wing Hindu outfits in Jammu, supporting the people who raped Asifa.
In Unnao, Uttar Pradesh, BJP PM Modi and CM Adityanath had come under heavy criticism for having remained silent for a long time after the incidents that established his party’s support of the rapists and conspirators. In Unnao, BJP MLA Kuldeep Singh Sengar was arrested only after a Public Interest Litigation (PIL) was filed asking why the politician was not arrested even after a complaint by a minor girl of abduction and rape.
The death penalty amendment that was passed in haste was ostensibly to quell the outrage over the government’s attitude towards rape but it now seems to have backfired.
Child rights activists, feminists and citizens did not hesitate to point out the futility of the ordinance before it was passed and illustrated in many ways how death penalty can result in more and more children maintaining silence regarding rape and sexual abuse. Many activists pointed out how in most cases of child sexual abuse, the perpetrators are known to the children or are their relatives.
Activist and lawyer Vrinda Grover said, ‘in cases of child sexual assaults we know that most of these crimes are committed by people known to them [the victims] or those within the family. Can you imagine anyone coming forward to complain about such crimes knowing that death penalty is the punishment that maybe imposed. Is the government not going to push the crime further underground and disable the victim from coming forward.’
Justice A.P. Shah at a press conference said, ‘Death penalty is a populist measure which appears to be based on a problematic diagnosis.’