2019 AMENDMENT TO POCSO

The 2019 Amendment

“There can be no keener revelation of a society’s soul than the way in which it treats its children.”

–Nelson Mandela

Sexual abuse of children is a dark reality which is prevalent in several countries. A recent review of 55 studies from 24 countries found that rates of Child Sexual Assault ranged from 8 to 31% for females and from 3 to 17% for males. In India, prior to 2012, there had always been a dearth of proper legislation to deal with these issues. The Goa Children’s Act, 2003 was the sole piece of child abuse legislation back in those days. The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a special law enacted by the Government in 2012, which came into force from 14th November, 2012. This Act was amended recently in 2019 where, particularly, the death penalty was introduced for aggravated penetrative sexual assault in Section 6 of the Principal Act and the minimum punishment was changed to 20 years of rigorous imprisonment. Prior to the Amendment, the punishment for aggravated sexual assault was rigorous imprisonment for ten years, extending up to life imprisonment and fine. The steep increase in the cases involving horrifying cases of child abuse has forced the lawmakers to impose stricter punishments (including death sentence) even in cases of rape without murder. Child abuse is an evil that no society can tolerate and legislators hope that the deterrence created by capital punishment would keep our vulnerable children ‘safer’.

Introduction of Death Sentence

A discussion on the death penalty is incomplete without analysing the existing Indian jurisprudence on the same.

While upholding the constitutionality of the death sentence under Section 302 IPC in Bachan Singh v. State of Punjab (1980), the Apex Court held life imprisonment is the “rule” and death sentence an “exception” to it; death sentence to be not awarded “save in the rarest of the rare cases”. Subsequently, the Supreme Court in Macchi Singh v. State of Punjab (1983) condensed the guidelines for applying the doctrine of “rarest of rare” to cases involving the death penalty. These include:

1. Manner of commission of murder
2. Motive
3. Anti-social or socially abhorrent nature of the crime
4. The magnitude of the crime
5. The personality of the victim of murder

Since then, the courts balance a variety of aggravating and mitigating circumstances to determine if the Accused has to be awarded the death sentence or not. The sentencing policy, therefore, needs to strike a balance between the ‘twin factors’ i.e. the deterrent effect and the scope of reformation and integration of the offender in the civil society. Moreover, the quantum of punishment should be “society centric” rather than “Judge centric” for society in general and the ‘Victim’ [under Section 2(wa) CrPC] in particular are the biggest stakeholders in the administration of criminal justice system.

A close analysis of the Amendment would bring to light the fact that the legislature has distanced itself from those advocating for the complete abolition of a death sentence. The public outrage and unforgiving attitude of the society towards those who commit these horrendous crimes make the death penalty an urgent necessity.

Within a year of the Amendment being brought to force, the apex court has awarded death sentences in a few cases. In Ravi v. State of Maharashtra (2019), considering the heinous nature of the rape and murder of girl of  2 years, the court without any hesitation gave the death penalty to the accused giving a retrospective effect to the Amendment. Considering the twin factors, it concluded that such criminals cannot be reformed despite best efforts and would be a threat to the security and safety of the society whenever released. It further held that it would adhere to the legislative policy in the wake of increasing cases of sexual abuse and exploitation of children of tender age. A similar approach was also taken in Manoharan v. State which involved rape, sodomy and cold-blooded murder of a boy and a girl aged 7 and 10 years respectively.

However, the court also commuted the death sentence to life imprisonment in Ravishankar v. State of M.P. and Prahlad v. State of Rajasthan because the mitigating circumstances outweighed the aggravating ones.

Socio-legal Impact

In the opinion of many, the death penalty serves as a retributive and deterrent measure and emphasises on the principle of ‘eye for an eye’. It also causes people to refrain from committing certain offences. However, the Law Commission’s 2015 report on death penalty suggests otherwise. In 28.9% of the cases where a trial court awarded the death sentence, it ended in an acquittal by a higher court. Further, a death sentence may not, in reality, guarantee a greater deterrence as compared to life imprisonment.

While death penalty for assaulters might seem like a good idea, the aim of the Legislature behind introducing it does not seem clear. The deterrent theory, clearly, does not have the desired effect on the public. Adv. Shailabh Kumar suggests that this amendment might lead to a not only reduction in the number of cases reported but even lead to the murder of the victim. Although the Supreme Court has suggested following NALSA’s guidelines to provide the compensation, only five per cent of the victims get compensation. It must also be noted that the recent amendment overlooks the aspect of the formation of proper guidelines for compensation. Proportionate relief to the victim in such cases is remote as the victim’s destroyed life as well as social condition cannot be reinstated by merely punishing the criminal. Although the economic conditions of the victims are generally looked upon, studies suggest that poverty is among the root causes of sexual violence and affects the lives of many victims and survivors.

In cases falling under the POCSO, a death penalty to the convict might give partial relief to the victim as well as their guardian, since a lot of victims go through secondary victimisation in the society. Secondary victimization refers to insensitive behaviours and attitudes which lead to victim-blaming. A lot of victims face this from their own family members, affecting their mental health adversely. Although it might not provide complete relief to the victims, many of them might get a partial relief because of the social backlash faced by the convict. However, the number of convicts awarded death penalty is also not that high as the court awards punishment of this severity only in ‘rarest of the rare’ cases. For example, in two cases from 2012 and 2015, the Supreme Court held the 2019 POCSO amendment inapplicably. The trend, however, can be seen changing as the death sentences awarded for murders involving sexual offences in 2019 was at the highest in four years.

How effective is the deterrence created by death sentence?                                

“Deterrence is a measure of social necessity and also as a means of deterring other potential offenders.”[1]

The report of the Royal Commission on Capital Punishment (1953) concluded that there is no convincing statistical evidence that the death penalty had a stronger effect as a deterrent than any other form of punishment and that this effect does not operate universally or uniformly; which was also reiterated in Triveniben v. State of Gujarat.

The only motive of introducing the death penalty is to empathise with public anger (for example, the Kathua rape and murder case) for the society won’t settle for anything less than taking away the life of the person who destroyed childhood and with it countless other lives.

It cannot be denied that there is an increased layer of deterrence that a perverted mind would experience before he/she thinks of committing the crime because of the fear of the death gallows. However, once he falls prey to his lust there is no going back. Earlier it was ‘rape and leave’, but now it will be ‘rape and kill’ to eliminate any evidence whatsoever. In recent cases, the offenders have mercilessly murdered, defiled and completely mutilated the victim post the sexual assault to escape prosecution.

Conclusion

The aim, according to the government statement, is to discourage the trend of child sexual abuse by acting as a deterrent due to strong penal provisions incorporated. The need for capital punishment has been rightly summarised in Ravji v. State of Rajasthan; in a criminal trial, the criminal gets punished according to the nature and gravity of the crime. If for such heinous crimes the most deterrent punishment is not given, then there will be no deterrence left in the society ultimately. One cannot argue for the abolition of death sentence citing violation of human rights of the offenders; doing away with the penalty harms the interests of the society. Hence, neither should the Court recklessly hand out death sentences nor should it follow the ‘reverence for life’ principle by the book. The punishment before all things must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent.[2]

[1] Ashrafi Lal v. State of U.P., (1987) 3 SCC 224.

[2] Ravi v. the State of Maharashtra, (2019) 9 SCC 622.