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DEATH PENALTY for CHILD RAPE National DEATH PENALTY FOR CHILD RAPE Dissertation submitted in part fulfilment for the requirement of the Degree of LL.M. Submitted by Supervised by KUSHAGRA SINGH DR. ANUP SURENDRANATH National Law University Delhi (India) 2019 DECLARATION BY THE CANDIDATE I hereby declare that the dissertation entitled “Death Penalty for Child Rape” submitted at is the outcome of my own work carried out under the supervision of Dr. Anup Surendratnath, Assistant Professor of Law, National Law University, Delhi. I further declare that to the best of my knowledge the dissertation does not contain any part of the work, which has been submitted for the award of any degree either in this University or any other institutions without proper citation. Kushagra Singh Roll No. 47 LL.M. 18 National Law University, Delhi New Delhi May 20, 2019 i CERTIFICATE OF SUPERVISOR This is to certify that the work reported in LL.M. dissertation entitled “Death Penalty for Child Rape”, submitted by Kushagra Singh at National Law University, Delhi is a bonafide record of his original work carried out under my supervision. To the best of my knowledge and belief, the dissertation (i) embodied the work of the candidate himself; (ii) has been duly completed; and (iii) is up to the standard both in respect of contents and language for being referred to the examiner. Dr. Anup Surendranath Assistant Professor of Law National Law University, Delhi New Delhi May 20, 2019 ii ACKNOWLEDGMENT Writing this dissertation has been a difficult yet an enriching experience, it has greatly enhanced by research skills and broadened my knowledge on the current issue at hand. I would like to express my sincere gratitude to a number of people for their valuable support, guidance and advice which helped me complete this dissertation. First and foremost, I would like to extend my sincere thanks to my mentor and supervisor Dr. Anup Surendranath for his continuous guidance, patience and support through this research work. His expertise on the issues and immense knowledge provided me with a direction to understand various nuances underlying the topic. It allowed me to structure the problems in a framework which provided for an efficient working. Besides his valuable academic supervision, he was a constant source of encouragement throughout the period of this research. I am also grateful to the faculty who provided their valuable time in answering my different queries along with library staff who worked long hours to provide us with required material which went a long way in completion of this work. I would also like to thank my peers for guiding me through tough times they themselves have been through, and lastly I would like to thank my family for their unconditional love and support which served as a constant motivation and allowed me to finish this work. Kushagra Singh iii LIST OF ACRONMYS & ABBREVIATIONS AIDWA All India Democratic Women’s Association AIR All India Reporter Anr. Another CCL Centre of Child Law, National Law School, Bangalore Cr.A Criminal Appeal CUP Cambridge University Press Del Delhi FIR First Information Report HAQ HAQ Centre of Child Rights, Delhi HC High Court IFSHA Interventions for Support, Healing and Awareness MP Madhya Pradesh MLA Member of Legislative Assembly NCW National Commission for Women NCRB National Crime Records Bureau No. Number Ors. Others OUP Oxford University Press Pet. Petition PP Public Prosecutor RAHI Foundation Recovering and Healing from Incest Organization Rev. Review SC Supreme Court SCC Supreme Court Cases SCR Supreme Court Reporter SPP Special Public Prosecutor Tulir Centre for the Prevention and Healing Child Sexual Abuse, Tamil Nadu T.N. Tamil Nadu UN United Nations UOI Union of India U.P. Uttar Pradesh v. Versus WCD Ministry of Child and Women Development iv LIST OF CASES 1. State v. Shri Freddy Albert Peats & Anr. Cr.A. No. 44/2002. 2. Sakshi v. UOI (1999) 6 S.C.C 591. 3. Childline India Foundation & Anr. v. Alan John Waters & Ors. Cr.A. No. 1208-1210/2008. 4. State of Karnataka v. Bantara Sudhakar, (2008) 11 S.C.C. 38. 5. Mukarrab v. State of U.P. Cr. A. No. 1119-1120/2016. 6. Tukaram v. State of Maharashtra, (1979) 2 S.C.C. 143. 7. Sudesh Jhaku v. KCJ & Ors. (1998) Cri. L.J. 2428. 8. Rameshwar v. State of Rajasthan, A.I.R. 1952 S.C. 54. 9. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 S.C.C. 217. 10. Rafiq v State of UP, (1980) 4 S.C.C. 262. 11. Mithu v. State of Punjab, A.I.R. 1983 S.C. 473. 12. Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898. 13. Macchi Singh v. State of Punjab, 1983 A.I.R. 957. 14. Dhananjoy Chatterjee v. State of West Bengal, 1994 S.C.R. (1) 37. 15. State v Suresh (2000) 1 S.C.C. 471. 16. Veerendra v. State of Madhya Pradesh Cr.A No. 39/2015. 17. Naveen Gadke v. State of Madhya Pradesh Cr.A No. 3830/2018. 18. Santosh Kumar Satishbhusan Bariyar v. State of Maharahstra Cr.A No. 1478/2005. 19. State of Madhya Pradesh v. Jitendra Kushwaha Cr.A.No.5950/2018. 20. Vinay Sharma, Mukesh Sharma & Ors v. State (Govt. NCT) of Delhi Rev. Pet. 570/2017. 21. Jagmohan Singh v. State of U.P, (1973) 1 S.C.C. 20 22. Maneka Gandhi v. UOI, A.I.R. 1978 S.C. 597. 23. EP Royappa v. State of T.N., A.I.R. 2004 S.C. 394. v TABLE OF CONTENTS S.NO. TITLE PAGE NO. COVER PAGE DECLARATION BY THE CANDIDATE i CERTIFICATE OF SUPERVISOR ii ACKNOWLEDGEMENT iii LIST OF ACRONMYS AND ABBREVIATION iv LIST OF CASES v CHAPTER 1 INTRODUCTION 1-7 1.1 OVERVIEW OF THE TOPIC 1-2 1.2 STATEMENT OF PROBLEM 2-3 1.3 OBJECTIVES OF THE STUDY 3 1.4 HYPOTHESIS 3 1.5 RESEARCH QUESTIONS 3 1.6 LITERATURE REVIEW 3-6 1.7 CHAPTERIZATION 7 CHAPTER 2 CHILD RAPE FRAMEWORK IN INDIA 8-20 2.1 DEVELOPMENT OF LAW ON SEXUAL OFFENCES AGAINST 8-11 CHILDREN 2.2 ANALYSIS OF POCSO AND POCSO RULES 11-12 2.2.1 SPECIAL MECHANISM FOR CHILD VICTIMS 12-13 2.2.2 RIGHTS OF CHILD VICTIM 13-14 2.2.3 VICTIM PROTECTION MEASURE 14-15 2.2.3.1 PRE-TRIAL STAGE 14 2.2.3.2 TRIAL STAGE 15 2.3 GAPS AND CHALLENGES IN IMPLEMENTATION OF POCSO 15-20 2.3.1 IMPLENTATION ISSUES WITH STRUCTURAL AND 15-17 PROCEDURAL REQUIREMENTS UNDER POCSO 2.3.2 CHARGES AND SENTENCING PATTERN 17-18 2.3.3 CHALLENGE OF AGE-DETERMINATION OF VICTIMS 18 2.3.4 CASES INVOLVING A ‘ROMANTIC RELATIONSHIP’ 19 2.3.5 MAJORITY OF CASES RESULTING IN ACQUITTAL 19-20 CHAPTER 3 THE CRIMINAL LAW (AMENDMENT) ACT, 2018 21-25 3.1 BACKGROUND OF THE AMENDMENT 21-22 3.2 ANALYSIS OF PROVISIONS OF ACT 22-23 3.2.1 ISSUE WITH PROVISIONS OF GANG-RAPE 23 vi 3.3 DILUTION OF POCSO 23-25 CHAPTER 4 DEATH PENALTY IN INDIA 26-31 4.1 TRANSFORMATION FROM ‘SPECIAL REASONS’ TO ‘RAREST 26-27 OF RARE’ 4.2 INCONSISTENT AND INCONSISTENT AND ABRITRAY 27-28 EXERCISE OF ‘RAREST OF RARE’ DOCTRINE 4.3 SENTENCING PRINCIPLES FOLLOW BY JUDGES WHILE 29-31 AWARDING DEATH PENALTY 4.3.1 UNDERSTANDING OF ‘RAREST OF RARE’ BY FORMER 29 JUDGES 4.3.2 JUDGES ON MITIGATING AND AGGRAVATING FACTORS 29-30 4.3.3 JUDGES ON JUDICIAL DISCRETION IN DEATH PENALTY 30-31 CASES CHAPTER 5 IMPACT OF CRIMINAL LAW (AMENDMENT) ACT, 2018 32-35 5.1 EMERGENCE OF DANGEROUS TRENDS 33-34 5.1.1 PRESUMPTION UNDER POCSO 34-35 CHAPTER 6 SUGGESTIONS 36-40 6.1 ADOPTING A PRINCIPLE BASED APPROACH IN 36-37 DEVELOPMENT OF CRIMINAL LAW 6.2 RE-EXAMINING THE CONSTITUONALITY OF DEATH 38-40 PENALTY 6.2.1 ARBITRAL NATURE OF ‘RAREST OF RARE’ DOCTRINE 38 6.2.2 APPLICATION OF MODERN TESTS TO EXAMINE THE 38-40 CONSTITUNALITY OF DEATH PENALTY CHAPTER 7 CONCLUSION 41-43 BIBLIOGRAPHY 44-46 BOOKS REFERRED 44 STATUTES REFERRED 44 REPORTS REFERRED 44-45 ARTICLES REFERRED 45-46 WEBSITES REFERRED 46 vii CHAPTER 1 INTRODUCTION 1.1 OVERVIEW OF THE TOPIC The year, 2018 served as an important year for child sexual abuse reforms in India. Unnao and Kathua rape cases received significant attention in the country and lead to widespread protests with public seeking justice for both minor victims. The demand for more stringent anti-rape laws had been prevalent long before these cases came into light. The Nirbhaya rape case1 in Delhi on December 16, 2012 had same effect as it resulted in huge outcry in the country and led to calls for urgent change in the laws. The Criminal Law (Amendment) Act, 2013 expanded the definition of rape, added new categories of offences and increased the quantum of punishment. While the number of reported cases in the aftermath of 2013 Amendment revealed a sharp increase compared to previous years. The rape statistics overall continued to rise.2 With various child rape incidents also rising3, the Unnao and Kathua rape cases served as a trigger to this demand to reform child rape laws in the country. The Criminal Law (Amendment) Act, 2018 came as a response to these cases. The law made number of changes in IPC, Cr.PC, IEA and POCSO. The Act increased quantum of punishment for all rape offences, and added three new offences which are punishable with death penalty. It is important to underline that there were existing provisions under both POCSO and IPC to deal with these offence, yet new offences were created through this Act.
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