In the past four months, at least four states have moved to, or said they intend to, introduce the death penalty for those who rape children below a certain age.

Madhya Pradesh, which was the first to announce this in November, has already passed a bill that awards capital punishment to those convicted of raping girls below the age of 12. The bill is awaiting presidential assent. Rajasthan is in the process of drawing up a similar law, and ministers from Karnataka and Haryana have also suggested that they might consider such a measure. The Shiv Sena, part of the ruling coalition in Maharashtra, has also expressed its keenness for increased punishment for such crimes.

The latest National Crime Records Bureau data, released in November, showed that 19,765 cases of child rape were registered in 2016.

In January, the rape of an eight-month-old in Delhi led to widespread outrage, and a Public Interest Litigation was filed in the Supreme Court seeking capital punishment for such rapists. Although the Centre, in that matter, told the court verbally that the “death penalty is not the answer to everything”, states are free to legislate on the issue independently.

But even as state governments and ministers increasingly call for harsher punishment in cases of child rape, much more needs to be done to ensure justice for children who have been wronged, say activists. With the focus on punishment, they ask if the underlying issues that plague trials under the Protection of Children from Sexual Offences Act, 2012, and the nitty gritties of India’s child protection system are being glossed over?

Fixing the system

“The death penalty is a low-hanging fruit to go after perpetrators,” said Swagata Raha, a legal consultant with the Centre for Child and the Law at the National Law School of India University, Bengaluru. “The laws are getting more penal but where are the fundamental changes to strengthen the system?”

Raha added: “Will justice be done by hanging a few people? Enough studies show that it is not a deterrent. Where are the structures and changes at the systemic level?”

In the past two years the Centre for Child and the Law has published a series of reports on the functioning of the special courts set up under the Protection of Children from Sexual Offences Act in five states – Maharashtra, Karnataka, Andhra Pradesh, Assam and Delhi. Though the specifics might differ, the broad patterns remain: victims often turn hostile in such trials, conviction rates are low for a variety of complex reasons, people in the system are not always well-trained and victim compensation schemes are being implemented unevenly.

“Rehabilitation for victims of sexual abuse is still not a priority for the state,” said Anant Kumar Asthana, a lawyer and juvenile justice expert. “The same government which is keen to bring death penalty for criminals goes silent when you ask that more courts be set up, appoint more judges in these courts, take care of our public prosecutors and strengthen them, simplify compensation for victims procedures, recruit more female police officers, give more resources to our police, judiciary and public prosecutors so that they could do their job more efficiently and swiftly...so the death penalty has nothing to do with ensuring children’s rights.”

(Photo credit: Sajjad Hussain/AFP).
(Photo credit: Sajjad Hussain/AFP).

Decrease in allocations

The Protection of Children from Sexual Offences Act was introduced following increasing incidents of crimes against children. It already has a provision for perpetrators to receive life imprisonment as the maximum punishment for aggravated penetrative sexual assault.

The Act also states that the victim’s evidence should be recorded within 30 days of a court taking cognisance of the offence, and as far as possible the trial should be completed in a year. “In such cases there needs to be time-bound disposal in a child-friendly manner,” said Govind Beniwal, a former member of Rajasthan’s State Commission for the Protection of Child Rights. “We all know cases go on for more than a year. Justice is not limited to punishing the offender. We have to see how to support the victims, the focus should be on rehabilitation.”

But this cannot be done without adequate funding.

The allocations for child-related schemes in the Union Budget have been falling each year, and this year was no exception. These schemes constitute 3.23% of the total Budget, a slight fall since last year (3.32%) and a continuation of the decline since 2012-’13 (4.76%). Within this, the Integrated Child Protection Scheme, which covers vulnerable children, stands at around 0.05% of the total Budget this year too.

“The main cause for worry is that child protection as a focus area has not received the attention of policy makers and financial planners,” said an analysis from the non-profit CARE India of the 2017-’18 Budget. “The allocation and expenditure has hovered around only Rs 1,000 crore and in BE 2018-’19 it is Rs 1,376.93 crore, which translates to approximately Rs 29 per child per year only.”

Risk of under-reporting

Data has repeatedly shown that trying offences against children is tricky because they are usually committed by people known to them (the Centre for Child and the Law studies found those known to the victims were those accused of the crime in 70% to 80% of the judgments studied in the five states). “There is a concern that introducing the death penalty will worsen the problem of under-reporting,” said Anup Surendranath, director of the Centre on the Death Penalty at the National Law University in Delhi. “Since a lot of child sexual abuse is perpetrated by known people, victims might be more reluctant to report crimes and this could drive further under reporting.”

In 2015, a Law Commission report had recommended that the death penalty be abolished gradually except in terror-related cases. Though death sentences might be handed out, but only occasionally implemented, studies from elsewhere have shown there is not enough evidence that the death penalty has a deterrent impact on offences.

Surendranath pointed out that even the US, which is “a very death-penalty aggressive country”, stops short of prescribing it for the rapists of minors. Indonesia, which announced the measure in 2016, is one of the few states to do so.