Death Penalty for child rapists will be futile, Justice AP Shah
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Death Penalty for child rapists will be futile, Justice AP Shah

Shruti Mahajan

Justice AP Shah, along with child rights activists and lawyers, addressed the media at the Press Club of India today, voicing their views against the Ordinance approved by the Central government seeking to impose the death penalty for rape of children below the age of 12.

[L-R]: Anup Surendranath, Vrinda Grover, Justice AP Shah, Anuja Gupta and Bharti Ali
[L-R]: Anup Surendranath, Vrinda Grover, Justice AP Shah, Anuja Gupta and Bharti Ali

Justice Shah began by saying that every citizen today is concerned about the unabated violence being committed against children. However, he stated that the move to impose the death penalty in cases of rape of children under 12 years of age instead of strengthening the criminal jurisprudence will be counterproductive.

Stating that the existing provisions under the Protection of Children from Sexual Offences (POCSO) Act prescribe minimum imprisonment of 10 years which may extend up to a life term for rape of a child below 12, Justice Shah said that the enhancement of punishment will be futile.

“The remedy offered appears to be based on the wrong diagnosis. Not only is the enhancement of punishment futile, but it will also have disastrous consequences on children.”

Justice Shah cited a study conducted by the Centre for Child and the Law and highlighted that the maximum punishment of life term in such cases was rarely invoked by judges. This study, which was conducted in five states, also found that the conviction rate was abysmally low and that close to 89.5% of cases under the POCSO Act were pending.

The former Chief Justice of the Delhi High Court further said that a punishment like the death penalty may pressurize the victim to turn hostile. This statement was based on crime data from the year 2016, where it was found that in 94% cases of child sexual abuse, the perpetrator was known to the victim. In such cases, it was found that the victim is likely to face pressure to turn hostile.

Instead of imposing the death penalty, Justice Shah opined that there was a need for strengthening the criminal justice system. Placing reliance on the death penalty will only divert attention from other issues plaguing the criminal justice system like poor investigation, prevention of crime and victim protection, Shah J said.

Quoting a Law Commission report on the death penalty, Justice Shah said,

“…focusing on death penalty as the ultimate measure of justice to victims, the restorative and reformative aspects of justice are overlooked.”

Justice Shah also expressed anguish at the way trials in cases under the POCSO Act are sometimes conducted. He shed light on how the victim is exposed to the perpetrator and is subjected to aggressive cross-questioning by lawyers. He also stressed on the absence of support groups for the benefit and aid of these child victims.

While ending his address, Justice Shah requested parliamentarians to reconsider the move.

“In such circumstances, to fall back on and resort to a populist measure like the death penalty is really worrisome. It is my appeal to the parliamentarians to reject this as this may cause considerable harm to the children victims.”

Other members on the panel were Advocate Vrinda Grover, Child Rights Activists Anuja Gupta and Bharti Ali, and Anup Surendranath from the Centre on Death Penalty, National Law University, Delhi.

Parents of three child survivors of sexual abuse also narrated their hardships in getting justice for their children. However, they were all against the death penalty for such cases. Instead, they stressed on measures to strengthen the criminal law system and to implement the existing laws better, not only to protect children against sexual crimes but also to ensure speedy justice.

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