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Expert opinion: Death penalty to rapists changes nothing until investigation process turns effective

Srinagar, Apr 24: Experts have questioned the recent ‘criminal law amendment ordinance’ approved by the President of India for providing death penalty to those convicted of raping girls below 12 years of age.
The law was approved in the backdrop of sexual assault and murder of minors in Kathua and Surat and the rape of a girl in Unnao.
Jammu and Kashmir Government also approved an ordinance on Tuesday to allow courts to pronounce death penalty to child rapists.
However, in absence of Protection of Children Against Sexual Offences (POCSO) in Jammu and Kashmir, the experts decry the death penalty for child rape cases, as sought by the proposed ordinance.
POCSO Act aims to offer protection to children (individuals below the age of 18) from sexual violence including sexual assault, sexual harassment, and the inclusion of children in pornography.
Habeel Iqbal, a lawyer at Shopian Court, accused J&K government of “playing to the gallery”.
“They are pandering to populism. The government has failed to bring in a law on the lines of POCSO. The government has not formed the commission for protection of child rights, but is quick to resort to the decadent practice of death penalty,” he said.
Anuradha Bhasin, Executive Editor at Kashmir Times, said the death sentence would not act as a “deterrent” but will prove “counterproductive”.
“I completely oppose it. First, it goes against the basic humanitarian principles of justice. If there is a death penalty for rape, it will be followed by murders, as the rapist will try to wipe off the evidence,” she said.
Bhasin also pointed out that the cases of rape and sexual violence were more rampant than what was being reported.
“Majority of the sexual violence cases is perpetrated by those known to the victims. They don’t come out because of the stigma attached. The death penalty will further stop them from reaching out to the authorities and report the crime,” she said.
The senior journalist stressed that state responsibility should be more towards ensuring a fair “investigation and prosecution” process rather than making “stringent laws”.
“The prosecution in every case that comes should ensure that every victim has confidence in taking recourse to legal justice mechanism,” she added.
Rebecca Mammen John, a lawyer at Supreme Court, wrote on Facebook, “Cases collapse in India because of poor investigation. That’s hardly going to change because the government has announced that child rapists will be awarded the death penalty. No rich, powerful well-connected man has been awarded the death penalty. It’s the poor, badly represented prisoner who gets the harshest punishment.”
Supreme Court advocate, Vrinda Grover has been quoted by a national daily saying, “Far from reporting the crime, death penalty is going to deter the victim from reporting sexual assault when the offender is from the family or is known to them.”
“This will lead to the crime being suppressed and the victim being left completely helpless. Without strengthening the investigation process or the prosecution, creating an enabling environment both in the court and outside, and improving the conviction rate, the sentence is irrelevant.”
Global rights groups, the Amnesty International and the CRY also termed the Union Cabinet’s decision as a “Knee-jerk reaction” and said it could possibly be a “threat to the judicial process”.
In the aftermath of rape-and-murder of an eight-year-old nomadic girl in Kathua, ‘Save the Children’, an international non-governmental organisation that promotes children’s rights, in a statement said: “poor status of implementation of laws is an issue of urgent national concern”.
“While the Indian government has enabled progressive laws like Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Criminal Amendment Act, 2013 but the poor status of implementation of such laws, as reflected in the cases of Kathua, Unnao and Surat, is an issue of urgent national concern,” the statement reads.
While Chief Executive Officer /Mission Director ICPS /Juvenile Justice, Hilal Bhat said that POCSO has not been extended to JK.
“The draft bill is ready and it will be implemented shortly,” Bhat added.