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Illustration: Anthony Lawrence

In an attempt to stem this horrendous crime, the state government has tabled a bill to award capital punishment to those convicted of raping girls 12 years and below

~By Rakesh Dixit in Bhopal

Among all the Indian states, Madhya Pradesh has the highest number of rapes. In an attempt to instil fear among potential offenders and help bring down the number of rapes, the MP government has tabled a bill to award the death penalty to those convicted of raping girls aged 12 or below.

The BJP government of Shivraj Singh Chouhan has sought an amendment in the Indian Penal Code (IPC). After the decks are cleared, it is proposed to book the rape accused under Sections 376 AA and 376 DA of the IPC. The bill will now be sent to the Union government and the president for approval. At present, the IPC stipulates punishment ranging from seven years to life imprisonment for rape convicts.

PUBLIC SAFETY BILL

State finance minister Jayant Malaiya told newspersons that the bill is known as the Public Safety Bill. According to the clauses in the bill, the public prosecutor will be mandatorily heard before an accused moves a bail petition, he said. The cabinet also took a decision that if a woman accuses a man of raping her on the pretext of marrying her, the crime will be treated as cognisable. An amendment will be proposed in Section 493 (a) of the IPC. It also decided that if an accused is caught stalking a girl for the second time and his crime is pro­ved, he will face a fine of Rs 1 lakh. The habitual offender will be booked under Section 110, IPC, and it will be a non-bailable offence.

The bill seeking the death sentence for rapists has been in the pipeline for over a year. Chouhan had in January made a pitch for death sentence to curb the incidence of rape during his Narmada Sewa Yatra. He again broached this topic while talking to police officers in April and later in August.

However, he didn’t pursue the matter till November this year when the gangrape of a civil service aspirant by five men sparked off a nationwide outrage. The 19-year-old was allegedly raped when she was returning home from a coaching class. Despite the fact that both her parents are police personnel, the police took 24 hours to register her FIR and that too, after senior officers intervened. A few days after this shocking incident, four persons, including a 67-year-old man and a woman, were arrested for the gangrape of a 10-year-old girl in Bhopal.

Three accused being arrested by the police for raping a minor girl in Mumbai. Photo: UNI
Three accused being arrested by the police for raping a minor girl in Mumbai. Photo: UNI

PATHETIC STATE

These two heinous crimes brought to the fore the grim record of the Madhya Pradesh police in tackling crimes against women, particularly rape of minor girls. According to the 2016 report of the National Crime Records Bureau, Madhya Pradesh reported the highest number of rape cases—4,391— in 2015. Maharashtra followed with 4,144 cases. In 2014 too, Madhya Pradesh had the most rapes at 5,076.

These statistics indicate that on an average, 11 women are raped every day in Madhya Pradesh. Regarding sexual offences against children, the report said that Madhya Pradesh registered the second highest number of cases—1,687— under the Protection of Children from Sexual Offences Act in 2015. Maharashtra registered the highest number of cases at 3,078.

Stinging media coverage of sexual crimes against women prompted the chief minister to finally implement the idea of the death penalty, which he had been talking about for quite some time. His announcement was appreciated in the media.

The opposition also thought it prudent not to oppose the harsh, if populist, move to deter potential rapists. Congress leaders say they will articulate the party’s stand when the bill comes up for debate in the assembly.

However, the chief minister faced initial resistance from ministerial colleagues in a cabinet meeting last week. A few ministers, including Jayant Malaiya and Gopal Bhargava, expressed serious concern that a death sentence might even pose a bigger threat, as the rapists would think it safer to kill their victims.

Apart from the physical safety of the victims, Chouhan’s cabinet colleagues pointed to a large number of “false” rape cases filed in the state. In view of these differences that emerged within the cabinet, the resolution was deferred, only to be taken up again three days later on November 26.

MINDLESS LEGISLATION?

Legal experts say that the government’s intent may be noble, but if the law is challenged in courts, it may eventually fall flat. Former Delhi High Court judge Justice RS Sodhi has been quoted as saying: “It will be a mindless legislation. Such an enactment does not give discretion to a court to award or not to award punishment. Judiciary is the sentencing authority and not the legislature.”

Many senior lawyers have reportedly said that stringent punishment is not always the solution because what matters in the end is the certitude of the penalty, not its severity.

In other words, ensuring an increase in the rate of conviction under the existing law is a greater deterrent against rape than making it harsher.

Besides, they say, awarding the death penalty requires the highest level of proof, hence trials should be far more rigorous and painstaking than for other punishment. This would also lead to minor victims being required to testify and re-testify for years to come, only adding to the trauma that they have already suffered. And as the standard of proof is “beyond reasonable doubt”, there always remains the possibility of a lower conviction rate if the death penalty is stipulated as the minimum mandatory punishment.

In India, the death penalty is prescribed for murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government and abetting mutiny by a member of the armed forces. Capital punishment is also awarded under some anti-terror laws for those convicted of terrorist activities.

Generally, however, the courts award life imprisonment to convicts in a murder case. Only in the “rarest of rare” cases are murder convicts awarded the death penalty.

According to a Supreme Court ruling: “Death penalty should be imposed when a murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

“If the motive betrays depravity and meanness, or if a backward or minority community member is killed not for personal reasons but to arouse social wrath.”

It is obvious that there is less tolerance for a heinous crime like rape.

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