In the backdrop of the protests over the violent abduction, rape, and murder of Asifa Bano, an eight-year-old girl from the Rasana village of Kathua, Jammu and Kashmir, the government released fresh guidelines regarding the rape of minors. The case, popularly known as the “Kathua rape case”, touched a nerve- leading to widespread protests from the public, along with multiple discussions about the prevalent yet sensitive issue of rape in the country.
On April 22nd, 2018, the Union Cabinet assented to an ordinance- a temporary law signed by the President when Parliament is not session- which would allow the courts to sentence any person(s) to death in the case of rape of a minor below the age of 12. When taken at face value this seems like a perfectly valid, even justified, action to take against perpetrators of such heinous acts. But dig a little deeper and one can see the action was not only taken in haste, but may also have adverse effects.
The ordinance came amid shock, outrage and protests all over the country. People were furious with the mishandling, politicization, and communalization of a brutal crime and demanded justice. The government needed a strong response to such a crime and this response came in the form of the ordinance, which serves as a prime example of “reactionary legislation”- when a government enacts laws hastily in response to a pressing issue. While reactionary legislation looks great on paper (who would ever argue that the rape of a child below the age of 12 shouldn’t be punished by death?) it has many detrimental effects, seen only in the future, that may be more harmful than the event which caused the legislation itself.
If we examine the ordinance in detail, we come across many fallacies. Under Section 302 of the Indian Penal Code, anyone who commits murder is punishable by the death penalty meaning that the Kathua rapists were always eligible for the death penalty, regardless of this ordinance. This subtlety proves to us that the legislation is definitely reactionary, because it makes no difference to the sentence tied to the specific crimes committed in Kathua, as that included murder.
However, what’s nevertheless important to focus on is that this ordinance means that now, the crime of rape of a minor below 12 carries the death sentence, regardless of anything else. This means that any perpetrator of such a rape would have no incentive to leave his victim alive, knowing that they would eligible for death. This takes away significant evidence from the case as the perpetrator may now hide or destroy the body, taking away forensic evidence and more importantly, the testimony of the victim.
While the ordinance opens the door to the death penalty, it is still the judges who decide the sentence. In any case of the rape of a minor below 12, the public will demand the harshest possible sentence, regardless of case facts, placing the judges under extraordinary pressure. This may lead judges to decide against conviction, knowing that convicting the person(s) will lead to immediate, and strong, calls for the death penalty, leading to them to even possibly acquitting the accused.
Looking beyond the legal aspects of this ordinance and instead at its social ramifications, it is seen that the ordinance, in the long run, remains detrimental and ineffective as a tool of meting justice. This is because many rapes of this nature take place within the family, perpetrated by close relatives. It is already considered common practice to hush-up abuse of any kind, including rape, and to never report it to the authorities. This is because reporting abuse is seen as threat to the family name and its honour, and also leads to the victim’s family becoming party to protracted legal battles. The idea of turning a family member in when they could be sentenced to death, effectively killing them, is incomprehensible to most families in Indian and this ordinance will only guarantee that the number of cases that already go underreported will only rise.
This is the problem with reactionary legislation. This is not the kind of article we will see in the headlines, this is not the writing we will read in the papers and this is not what the government wants to promote. But this is the truth. This ordinance is a response to heinous crime, one which should have never occurred, but it’s not remotely enough. It’s the equivalent of fixing a bullet hole with a band-aid. Rapes are a prevalent and pressing issue in this country and one we are constantly linked to in international circles. The problem of rape is an underlying one, and until the government addresses that issue, instead of reacting to the problem at hand, and starts taking proactive measures, we will see more of these rapes and more outrage and in turn, more reaction from the government. It’s a vicious cycle, where ultimately, we all lose.
Credits to Shraddha Chaudhary, whose Facebook post provided vast legal backing to this article.
By Pranjal Pande
Redoing Gender 