DEATH PENALTY FOR CHILD

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 () 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 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 UOI Union of India U.P. 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. v. State of , 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. 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 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. The core issue centers on the nature of development of Criminal Law (Amendment) Act, 2018. Every rape case involves a number of complex issues. From the issue of consent, to medical examination and jurisprudence relied upon by courts, to the stereotypes formulated by the society and courts alike against the victim, to the trauma a victim undergoes throughout the trial and after the exhaustion of said trial. The Act addresses none of those issues, in fact by adding death penalty in this framework it is worsening certain issues. One of the major problem in rape cases, is that the crime is never reported at all by rape victims in fear of retaliation and humiliation. Furthermore, studies have broken the stereotype of stranger rape4, it is in fact found that in over 80% of rape cases, perpetrators are known to the victim.5 This number is even higher in cases of child rape, as the offenders are mostly family members.6 So, there is a likelihood that, even after learning their

1 See 2012 Delhi gang rape case, the incident took place when a 23-year-old female physiotherapy intern was beaten, gang raped, and tortured in a private bus in which she was travelling with her friend. In the aftermath of the incident, Government of India setup Justice Verma Committee to suggest changes in the criminal law. On the basis of report submitted by the committee, the 2013 Act was enacted. 2 See CRIME IN INDIA STATISTICS 2016, TABLE 3A.4 ON OFFENDER’S RELATION TO VICTIMS OF RAPE 147 (NCRB, 2016): Cases under “crime against women” category reported an increase of 2.9 per cent in 2016 over 2015 at 3,38,994 out of which 11.5% were cases of rape with total figure at 38,947. Madhya Pradesh was worst performer with 4,882 cases of rape closely followed by Uttar Pradesh at 4,816. 3 Id. Incidents of rape of children increased by over 82% compared to 2015 with 19,765 cases being registered under POCSO. 4 Michelle Obermann, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, BUF. L.REV. 703-784 (vol. 48, 2000). 5 Irina Anderson, What is a typical rape? Effects of victim and participant gender in female and male rape perception, BRI. J. SOC. PSYCH., (Jan. 10, 2011) https://doi.org/10.1348/014466606X101780 (Last visited on May 4, 2019). 6 STUDY ON CHILD ABUSE: INDIA 2007 (WCD, 2007). 1 child has been sexually abused by a family member, a parent may prefer to not report the crime at all, in fear of sending their relatives or a known person to gallows.

The Act again takes us back to the time pre-dating POCSO, the reasons behind enactment of POCSO was that existing framework was not found to be conducive to child victims. So there was a need, to create a child friendly system and a framework which would result in speedy disposition of the cases, to ensure a child does not have to re-live the experiences as they would in a lengthy trial process. With introduction of death penalty, this situation is reversed as there are number of mechanism and safeguards in place to ensure no innocent person is executed.7 Usually, when a person is convicted and awarded death penalty in trial court. It requires a mandatory confirmation in High Court, this is followed by an appeal in Supreme Court. Beyond that there is a mandatory open court review and an option to file a curative petition. Furthermore, a clemency petition could also be made before the President/Governor, if such clemency application is rejected then also you have a right to challenge it. Generally, death penalty cases run much longer than regular cases and therefore, child victims would be subjected to this long drawn out process and be made to suffer through their development years. Not only this undermines the framework of POCSO, the act avoids a conversation on more pressing issue such as lack of support and rehabilitative mechanisms for child victims.

Overall, there are number of issues related to Criminal Law (Amendment), Act 2018 which cannot be understood in isolation. While, the contours on which the Act has been developed can be much easily scrutinized other aspects require detailed examination. This study aims to verse the readers with issues plaguing child rape laws in India followed by the problem of arbitral administration of death penalty by courts. The Act merges these issues together, what would be the consequences and effect of such an amalgamation is to be discussed in latter chapters.

1.2 STATEMENT OF PROBLEM

The present study is centred on finding the problems which plague the child sexual abuse laws in India, The Criminal Law (Amendment) Act, 2018 introduced death penalty in this framework without paying heed to the possible consequences of doing so. The way Criminal law is being development in this country is rather troubling, they are void of detailed research. This Amendment serves as an example, as it was yet another attempt at a quick-fix solution to a problem which is much more complex and needs more deliberations, resources, research and effective preventive measures to be corrected. Since, that would take more time the government opted for an easy way out in the face of widespread public outrage and increased the quantum of punishment for all offences of rape and introduced death penalty for rape on a woman below the age of 12 years and for gang-rape of a woman below the age of 16 years. The debate regarding death penalty in India has been raging for a long time, there is still not a fair way to administer in India. These new offences through 2018 Amendment, which provide for death penalty only worsen the situation. It is too

7 Anup Surendranth, Death Penalty for Child Rape: Dangerous and Ineffective, INDIA-SEMINAR (Iss. 711 November, 2018) https://ww.india-seminar.com/2018/711/711_anup_surendranath.htm (Last visited on May 4, 2019). 2 focused from the lenses of perpetrators and as a result lost sight of the fact protection and rehabilitation of victims are of bigger importance. Another problem is there cannot be any criminal provision which provides death penalty as a sole punishment. So statute always provides judges with an option either to award a death sentence or life imprisonment depending upon merit of the case. Problem is, the doctrine of ‘rarest of rare’ in itself is unclear and it is difficult to find one common principle through cases where death sentence has been awarded. There are additional consequences of this Amendment which shall be identified as research progresses and discussed in detail in the current project.

1.3 OBJECTIVES OF THE STUDY

The objectives of the study are as follows:

 To analyse existing framework of child sexual abuse laws in the country to understand what makes it such a complex phenomenon  To evaluate the viability of death penalty in India and the issues underlying it  To analyse the Criminal Law (Amendment) Act, 2018 and study its effect on child rape cases

1.4 HYPOTHESIS

The Criminal Law (Amendment) Act, 2018 was a short-sighted approach by the government to the problem of child rape and diverts the attention from deeper issues which plague this complex problem. Introduction of death penalty in child rape was for their own political rewards and in doing so, they have added to the misery of child victims who are more vulnerable than ever before and made it more difficult for them to get justice.

1.5 RESEARCH QUESTIONS

 Whether the existing legislative framework is effective in protecting the rights of children?  Whether introduction of death penalty in this framework improves the protection of children?  Whether the existing sentencing principles in death penalty allow for consistent application?  Whether we should be making broad principles through Criminal law on basis of individual cases?

1.6 LITERATURE REVIEW

1.6.1 STUDIES AND REPORTS

 Implementation of The POCSO Act, 2012 by Special Courts: Challenges and Issues, Centre for Child and the Law, National Law School of India University, National Printing Press, Bengaluru, February, 2018.

The present study is an attempt to understand some of the common hurdles faced by the Special Courts established under the POCSO Act, 2012. It takes into account the empirical data from the five state studies

3 and makes recommendations which can serves as a foundation for the reforms. This is a critical study for this research as it brings to the fore vast array of problems and questions which have resulted in gaps in implementation of the Act

 Implementation of the POCSO Act: Goals, Gaps and Challenges: Study of Cases of Special Courts in Delhi & (2012-2015), HAQ: Center of Child Rights & Forum against Sexual Exploitation of Children, November, 2017.

The HAQ study looks at the implementation of POCSO Act, 2012 since it was passed to see whether the goals which were set out are being attained or not. It highlights some of the challenges in proper implementation of the Act by doing study of cases registered under this Act in how they are being administered by Special Courts. It also offers a brief history of development of Child Sexual Abuse laws in the country to give a better understanding to the reader of POCSO and related legislations.

 Frequently Asked Questions on The Protection of Children from Sexual Offences Act, 2012 and The Criminal Law (Amendment) Act, 2013, Center for Child and the Law, National Law School of India University, National Printing Press, Bengaluru, November, 2016.

This research intensive study answers the most basic of questions pertaining to POCSO such as why as it enacted, what are the offences covered under it, what are the special rules and procedures etc. are answered in great detail here. It is a hugely helpful source for the researcher to understand the scope of POCSO Act.

 Matters of Judgment: A Judges Opinion On The Death Penalty and the Criminal Justice System, Centre on the Death Penalty, National Law University, Delhi Press, November, 2017.

The present study is an attempt to understand judicial thought and adjudicatory processes that govern the administration of the death penalty within India’s criminal justice system. It offers a view into the mind of judges, to see what principles/reasons are critical to them when they are deciding cases involving death penalty.

 Death Penalty India Report, Center on the Death Penalty, National Law University, Delhi Press, May, 2016.

The report documents socio-economic profile of prisoners sentenced to death in India and provides an insight into their life and families while being on death row. It also makes an enquiry into the manner they are sentenced to death. It raises critical questions regarding the dynamics of the criminal justice system and the impact of the death penalty in India.

 Death Penalty in India: Annual Statistics Report, Project 39-A, National Law University, Delhi Press, 2018, 2017 & 2016.

4 The report gives an overview of the legal developments which took place in year 2018 and provides in depth statistics highlighting the effect of Criminal Law (Amendment) Act, 2018. In addition to 2018 report, 2017 & 2016 reports shall also be used to identify the cases which shall be part of case analysis.

 Amnesty International India, Lethal Lottery - The Death Penalty in India: A Study of Supreme Court Judgments in Death Penalty Cases 1950-2006, May 2008.

Bikramjeet Batra in present report examined over 700 decisions delivered by Supreme Court during this period and asserts that whether an accused got sentenced to death or not was an arbitrary decision depending upon a number of unpredictable variables.

1.6.2 BOOKS

 Roger Hood and Surya Deva (ed), Confronting Capital Punishment in Asia: Human Rights, Politics and Public Opinion, OUP, 2013.

This book contains an in-depth analysis in the scope of application of the death penalty in India and explain the extent to which it fails to accept capital punishment as a human rights issues and identify impediments to reforms. Two chapters discuss the principle of ‘Rarest of Rare’ Doctrine and how it has evolved in the last four decades. It touches upon the inconsistency of the application of this doctrine and how it has resulted in a judicial process which is arbitrary.

 Lill Schredin, Capital Punishment: A Hazard to a Sustainable Criminal Justice System? 1st Edition, Routledge, March, 2016.

This volume seeks to examine the death penalty’s relationship to state governance in the past and present. It tries to understand the trend of India’s lack of executions in the recent past (1995-2012) by examining legal and institutional framework in the Indian judicial and political system and the latest trend in the aftermath of of Ajmal Amir Kasab, Afzal Guru and Yakub Memon in space of 3 years. What changes resulted in India’s return to execution.

 Clare McGlyn and Vanessa E. Munro (ed), Rethinking Rape Law: ‘International and Comparative Perspectives’¸ 1st Edition, Routledge-Cavandish, March, 2011.

The book provides a comprehensive and critical analysis of contemporary rape laws issues. Such as issue of consent and coercion, along with principles of criminalization which are problematic in child rape cases.

 Andrew Ashworth, Sentencing and Criminal Justice (Law in Context), 5th Edition, CUP, 2010.

This book is uniquely theoretical as it elucidates the underlying principles and foundations of the criminal law as author examines the key issues in sentencing policy and practice including the mechanisms for producing sentencing guidelines. It offers a perspective on the relevant principles and problems of sentencing where they do not correlate with the seriousness of the offence. 5 1.6.3 ARTICLES

 Swagata Raha, ‘Implementation Woes’, Issue 711, India-Seminar, November 2018.

This article highlights implementation gaps based on stakeholder interviews and analysis of 2788 judgments of Special Courts in Andhra Pradesh, Assam, Delhi, Maharashtra and Karnataka by the Centre for Child and the Law at the National Law School of India University, Bangalore (CCL-NLSIU). The central argument is that efforts need to be intensified for strengthening the implementation of the POCSO Act and that enhancement of punishment will have a counterproductive effect on the reporting and trials of child sexual abuse.

 Jennifer Bays Beinart, ‘Beyond Trafficking and Sexual Exploitation: Protecting India’s Children from Inter and Intra-Familial Sexual Abuse’, 21 Ind. Int’l & Comp. L. Rev. 47 (2011).

The authors cites various data and studies to emphasize that 53% of children in India have been victims of child sexual abuse. She discusses how social and cultural mind-set is of such nature that child sexual abuse and that too by familial members is seen as a taboo subject. She also points out various gaps and problems at legislative, judicial and executive level which has contributed to this staggering statistic.

 Anup Surendranath, ‘Death penalty for child rape: dangerous and ineffective’, Issue 711, India-Seminar, November 2018.

The author questions if best recourse to tackling the issue of child rape and protecting our children is through death penalty. Article brings out various issues which arise out of this amendment, such as under-reporting of child rape which will worsen, and the impact, lengthy drawn out effect of death penalty cases shall have on emotional, physical and mental development of a child victim.

 Mrinal , ‘The Law and Practice of Rape Adjudication in India’, In Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India, CUP, 2016, p.34-60.

The article discusses that in attempt to adopt a gender-sensitive approach in rape adjudication Supreme Court ended up constructing a stereotypical rape victim. The authors argues that due to reforms in rape law, the site of stereotyping merely shifted from the more visible guilt adjudication phase of the trial to the less visible sentencing phase, resulting amongst other reasons, in widespread disparity in sentencing of rape offenders.

 Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ Vol. 116, Law Quarterly Review 225, 2000.

In this article, author is troubled by the growth of criminal law and how the need for safety and security in a society has resulted in an over-criminalization of crimes. He emphasizes the need for a structured and more principled development of criminal law without which it shall remain a lost cause.

6 1.7 CHAPTERIZATION

This study shall be broadly divided into 6 chapters

1. CHAPTER 1: The aim is to verse the readers with the three issues which this dissertation is dealing with (i) death penalty (ii) child rape and (iii) how the 2018 amendment fails to provide an effective solution for it. This would be akin to a brief overview of the topic.

2. CHAPTER 2: The second chapter casts a look a brief look at the history of development of child sexual abuse in India. The forces which resulted in enactment of POCSO and whether the provisions contained within it are in line with the object for which it was devised. It further discusses the practice of POCSO to highlight the gaps and challenges in implementation of POCSO.

3. CHAPTER 3: This chapter deals with Criminal Law (Amendment) Act, 2018 and individual cases which resulted in its enactment. It focuses on the problem underlying the Act and the difficulties it has brought in seeking justice for child victims.

4. CHAPTER 4: This chapter focuses on framework of death penalty in India. Discussion on death penalty is limited to the development, evolution of ‘rarest of rare’ doctrine and its inconsistent application. It focuses on sentencing principles followed by the judges while choosing between life imprisonment and death penalty which results in arbitral administration of death penalty.

5. CHAPTER 5: This chapter assesses the impact of Criminal Law (Amendment) Act, 2018. It focuses on statistics and comparisons are drawn out with previous years. It also highlights an emerging trend of introducing more severe penalties for offences and how it problematic from a fair trial perspective under POCSO.

6. CHAPTER 6: This chapter provides suggestions and possible reforms to cure the defects in framework of child rape and death penalty.

7. CHAPTER 7: The final chapter of the study offers concluding remarks on the problems highlighted under the study.

7 CHAPTER 2

CHILD RAPE FRAMEWORK IN INDIA

Law is not made in isolation, there are certain factors and history behind every law which results in its creation. POCSO was no different in this regard. In this chapter we’ll cast a look at (i) history of child sexual abuse law in India before enactment of POCSO (ii) Analysis of POCSO (iii) and Implementation issues in POCSO.

2.1 DEVELOPMENT OF LAW ON SEXUAL OFFENCES AGAINST CHILDREN

Cases of child abuse prior to enactment of POCSO in 2012, were dealt under provisions of IPC, IEA, Cr.PC and judicial precedents. Through extensive research studies conducted by individuals and NGOs, issues were brought to light that the current framework was insufficient in ensuring child justice. These developments led to a more nuanced understanding of the term child sexual abuse which paved the way for deliberations for a special law in POCSO.

First empirical study along these lines was published in 1998, known as RAHI study.8 The study involved 600 questionnaires which were filled by middle-class and upper-middle class English speaking women. The study revealed that almost 76% of the respondents were sexually abused prior to the age of 18. Out of which, 40% were abused by at least one family member, and 31% by a person who was known to the victim. The statistics revealed “that a very high number of respondents have experienced some form of sexual abuse as children or adolescents”. The study shattered the myth that children are safe within the confines of their home.

Freddy Peats case9, was the first case in India which highlighted that children were at risk of being sexually exploited. Peats was managing a Gurukul in Goa, whereby number of victims were boys. He was convicted under s.377 of IPC and sentenced for life by trial court. His appeal was dismissed by the Bombay High Court.

In the aftermath of this case, it was found that substantive law was not adequate to deal with child sexual abuse. In case of penetrative sexual abuse of a girl, s.375 and 376(2) of IPC were invoked, if no penetration had taken place then s.354 and s.509 were invoked. In case of penetrative sexual abuse of a boy s.377 was invoked, but if no penetration had taken place with a boy, there was no provision under IPC whereby such offence could be charged.

Inadequacy of IPC to deal with child sexual abuse was also highlighted by Supreme Court in Sakshi10, in the present case petitioner contended that definition of ‘rape’ under IPC need not be confined to only penile/vaginal penetration. Court held, that a definition “could not be altered by a process of judicial interpretation”. But recommended Law Commission to examine the submissions made by the petitioner and make changes to the IPC, this led to 172nd Law Commission Report known as ‘Review of Rape Law’. While

8 VOICES FROM THE SILENT ZONE 14 (RAHI Foundation, 1998). 9 State v. Shri Freddy Albert Peats & Anr. Cr.A. No. 44/2002 (14.10.2003- BOMHC) 10 Sakshi v. UOI (1999) 6 S.C.C 591. 8 the Supreme Court could not alter the definition, they came to the aid of child victim and laid down special procedures which had to be invoked such as, in-camera trial for victims of rape and child abuse, any question of cross-examination had to be first submitted to presiding officer of court to ensure it was not framed in a language which is embarrassing for the victim, victim of child abuse or rape while giving testimony in court be allowed sufficient breaks. This was a very progressive judgment and all the directions given by the court were later incorporated in POCSO Act in 2012.

In the aftermath of Sakshi judgment, Law Commission published its 172nd Report in consultation with AIDWA, NCW and IFSHA. It made recommendations that the term ‘rape’ be substituted with ‘assault’ and the offence be made gender neutral.11 The ambit of term ‘rape’ be widened to include penetration by any object or any other part of the body12 and the punishment be more severe if the perpetrator is known to the victim and enjoys a fiduciary relationship such as father, brother etc.13

Anchorage case14, is another instance which highlighted the need for support of child victims within the Criminal Justice System. It was found that a child is intimidated in approaching a police station, and police is reluctant to listen to such complaint and record an FIR. It also highlighted the approach of courts, victims’ testimony in a rape case is most important but in context of child rape, it is viewed with even more suspicion.15 Ultimately, Supreme Court ended up convicting the two accused British nationals for engaging in oral sex with boys in the shelters. Under POCSO, these issues have been addressed whereby there is a role of NGOs, and professionals to assist the child victims at pre-trial and trial stage.

The Goa’s Children Act was a response to rise of child sex abuse due to tourism. It is the only State legislation on these lines, Goa enacted this legislation “to protect, promote and preserve the best interests of children in Goa and to create a society that is child-friendly.”16 This legislation was a result of campaign started by child rights organizations in Goa, they conducted a number of studies and highlighted the growing number of pedophiles who saw Goa as a safe haven. The Goa Act is also said to be a precursor to POCSO, as it shares a number of similarities. The offence of ‘sexual assault’17 and ‘incest’18 under this act is similar with the offences contained in the POCSO. This Act also lays down a framework of special rules, procedures and courts which can also be found in POCSO. It provides that “cross-examining of child victims is avoided and the same, if necessary, is done through the judge,” “child’s testimony or statement should be recorded in the presence of a social worker/counsellor as early as possible after the abusive incident and adequate

11 Id. at para 3.1. 12 Id. 13 Id. 14 Childline India Foundation & Anr. v. Alan John Waters & Ors. Cr.A. No. 1208-1210/2008 (18.03.2011 - SC). 15 See Id. Bombay High Court overturned the conviction by trial court as it found the testimony of child victim to be ‘unreliable’ and ‘not credit-worthy’ 16 Goa Children’s Act, 2003 Preamble (India). 17 Id. at s.2(y)(i). 18 Id. at s.2(y)(ii). 9 translations/interpretations and translators/interpreters who are sensitive to the children’s needs should be provided wherever needed”.19

The POCSO Act was a culmination of several domestic and international events. UN appointed an independent expert to conduct a global study on violence against children, this study was submitted in 2006 and recommended that “a national strategy, policy or plan of action on violence against children, and that “national laws… should comply with international human rights”. While this process was underway, Ministry of Women and Child Development initiated an empirical study on child abuse in India in 2006. The report titled “Study on Child Abuse: India 2007” is perhaps one of the most critical studies conducted in the country. Several facts were revealed which exposed the magnitude of child sexual abuse in the country, it was found that20:

 53.22% children suffered from one or more forms of sexual abuse  20.9% of children suffered severe forms of sexual abuse  Children working at institutional centers, street reported highest number of sexual abuse incidents  In over 50% cases, abusers were a family member or a person known to the child victim

The study also magnified the problem of under-reporting in cases of child sexual abuse, children were reluctant to share their experiences and in many instances when they did muster the courage, they were told to forget the incidence.

The process started in 2009, with circulation of a draft named Offences against Children Bill amongst various child rights organizations such as Tulir and HAQ. These stakeholders criticized the bill on the ground that it was too wide and covered various kinds of offences against children such as trafficking, labour, economic exploitation etc. which were already covered under specific legislations. Few months later in 2010, Ministry of Law & Justice invited Tulir to prepare a draft of laws relating to child sexual offences. The recommendations were shared in June, 2010.21 While this was ongoing, Ruchika Girhotra case came and Ministry of Law & Affair was under pressure to bring reform to rape laws. Criminal Law (Amendment) Bill, 2010 contained provisions pertaining to child sexual abuse. In July 2010, Ministry of Law & Justice submitted Offences against Children Bill. A few days later, Ministry of Women and Child Development submitted another draft bill in form of Protection of Children from Sexual Offence Bill, 2010. So, at the same time there were three initiatives to frame law on sexual offences against children. Finally, Ministry of Women and Child Development introduced Protection of Children from Sexual Offence Bill, 2011 in Rajya Sabha. As the Bill went to the Parliamentary Standing Committee, number of deliberations were occurring throughout the country between child center groups. Many of the recommendations made by these groups were not incorporated in the Draft Bill and therefore, they again submitted their suggestions and objections. Some of the recommendations made by these child rights group were accepted by Standing Committee and finally the

19 Id. at s.27 & s.31. 20 Supra note 6, at 73-83. 21 IMPLEMENTATION OF POCSO ACT: GOALS, GAPS & CHALLENGES 19 (HAQ, Nov. 2017). 10 POCSO Act along with POCSO Rules came into force on November 14th, 2012 which is also marked as Children’s Day. Subsequent to its enactment, Ministry of Health and Family Welfare started an initiative to formulate the Model Guidelines for Medical Examination of a Child under POCSO Act, 2012. Ministry of Women and Child Development also started an initiative to frame the Model Guidelines under Section 39 of POCSO Act 2012.22

2.2 ANALYSIS OF POCSO AND POCSO RULES

POCSO defines ‘child’ as any person below the age of 18 years.23 One of the distinguishing features compared to IPC is that it is gender-neutral meaning victim can be a girl, boy or a transgender. The Act provides for five types of sexual offences against children:

1. Penetrative Sexual Assault24 and Aggravated Penetrative Sexual Assault25 - The Act broadens the definition of rape and is not only confined to penile-vaginal penetration and includes penetration by any part of the body or object into any part of the body of a child. It also includes an aggravated form of penetrative sexual assault if the offence is committed by a police officer, a member of armed force, a member enjoying a fiduciary relationship with child etc. 2. Sexual Assault26 and Aggravated Sexual Assault27 - As the term ‘penetrative’ denotes, the acts makes a distinction between sexual assault and a sexual assault involving penetration into any body part. Aggravated form of Sexual Assault is on the same lines as in aggravated penetrative sexual assault. 3. Sexual Harassment28 - It also punishes those acts which are done with sexual intent such as making a child exhibit his body or part of his body to another person etc.

The Act also provides that an abetment of an offence is also punishable,29 it describes the circumstances under which a person could be said to have abetted an offence.30 Apart from making distinctions between different types of sexual offences, act also punishes instances of omission. One of the unique features about POCSO is mandatory reporting31, it provides that if any person has apprehension or knowledge that any offence under this Act has been committed, then they are liable to report the same to local police or special juvenile police unit. Police is also under an obligation to record the same. Failure to report such information or failure on part of police to record is an offence32. The Act also places special obligation on part of media, hotel, hospital and studio to report such information to police.33 Failure to do the same is also punishable.34 The Act maintains

22 Id. at 21. 23 POCSO Act, 2012, s.2(1)(d) (India). 24 Id. at s.3. 25 Id. at s.5. 26 Id. at s.7. 27 Id. at s.9. 28 Id. at s.11. 29 Id. at s.17. 30 Id. at s.16. 31 Id. at s.19(1). 32 Id. at s.21(1). 33 Id. at s.20. 34 Id. at s.19(1). 11 that the identity of child should not be disclosed, disclosing such identity is also an offence.35 Even though Act provides for a range of offences which are punishable under it, it does not provide if such offences are cognizable and punishable. By taking recourse to Section 19 of POCSO Act, Rule 4 (2)(a) of POCSO Rules, it can be inferred that sexual offences are cognizable. To ascertain if such offences are bailable or not, Schedule I and II of Cr.PC is referred. Therefore, all sexual offences which are punishable under POSCO which carry imprisonment of 3 years or more are non-bailable.

Act is not only unique because of different types of offences that are punishable under it, but also due to its special rules and procedures. Some of them are discussed below.

2.2.1 SPECIAL MECHANISM FOR CHILD VICTIMS

 Recording of an FIR - The Act provides that any statement given by a child victim to the police must be in presence of childs’ parent or a guardian whom that child trusts.36 Additionally, it requires the police to record FIR in a language which is understandable to the child victim37 and places duty upon police to read the FIR to child victim. The Act also provides that if the child victim is suffering from disability, then police have to take assistance of special educator or interpretation to record such information in writing.38 Statement of a child is not be recorded at a police station, it should be recorded to childs’ residence or at a place he usually resides.39  Special Courts - The Act requires that a special court be constituted40 which is child friendly, it is vested with the powers to decide cases under the act. The purpose of this court is to do away with intimidation child victims’ face in ordinary courts and to ensure speedy disposition of the matter. Once an FIR has been lodged, police is required to inform the special courts about such registration within 24 hours.41 Once the court has taken cognizance, the evidence of the child should be recorded within 30 days42 any extension beyond that has to be given by special court in writing with reasons. Further, Special Court is required to complete the trial within a period of 1 year as far as possible from the date on which cognizance was taken.43 If the offence is committed by another child, then recourse to Juvenile legislation should be taken.44 It is also incumbent upon Juvenile Justice Board to provide child victim with same safeguards which have been provided under POCSO.  Special Prosecutor - For any case registered under POCSO, State Government is required to appoint a special public prosecutor who has minimum 7 years’ experience as an advocate. Child’s family or guardian can also hire a legal representative of their choice45, but if they can’t do so due to financial constraints the

35 Id. at s.23(2)(3) & (4). 36 Id. at s.26(1). 37 Id. at s.19(3). 38 Id. at s.26(3) and POCSO Rules, 2012., Rule 3 (India). 39 Id. note 37, at s.24(1). 40 Id. at s.28. 41 Id. at s.19(6). 42 Id. at s.35(1). 43 Id. at s.35(2). 44 Id. at s.34(1). 45 Id. at s.40. 12 same shall be provided by District Legal Services Authority.46 The lawyer shall act according to aid and guidance of special public prosecutor. With the permission of special court, lawyer can also submit written arguments at the conclusion of a trial.47

2.2.2 RIGHTS OF CHILD VICTIM

 Right of child to receive assistance at trial and pre-trial stage - A child victim has a right to receive assistance from experts at pre-trial and trial stage, free of cost. A translator and interpreter has to be provided if the child speaks a regional language or a local dialect which is not the language of that State, or Special Court.48 In case of children with disability, sign language interpreters have to be provided.49 In order to facilitate communication, a psychologist or a mental health expert has to be provided to a child victim.50 The child also has a right to legal representation of their choice.51  Right of child to access documents and other information pertaining to case - Police is required to furnish a copy of an FIR to child victim, if he is the informant.52 The Magistrate Court53 and Special Court54, are required to provide the child victim or his family the following documents once police has filed the charge-sheet. They include police report, statements recorded by police under s.161(1) of CrPC, statements recorded by Magistrate under s.164 of CrPC and any other relevant document forwarded by the police to the court.  Right of child to privacy - The identity of a child victim under POCSO has to be kept confidential. The Act places specific obligations on police55, special court56 and any media57 for this purpose. The identity can only be disclosed by the special court, if it is of the view that such disclosure is in the interest of child victim. The reasons for such disclosure should also be given in writing.58  Right to Rehabilitation - A child victim may be entitled to receive compensation for the purpose of rehabilitation, Special Court may direct such payment to a child victim for the mental and physical trauma caused to them.59 The discretion in regards to compensation and the amount rests with the special court but they are guided by various factors, they award compensation while taking into account interests and needs of a child victim.60 The Special Court may direct an interim compensation in order to meet the

46 See Legal Services Authorities Act, 1987, s.12(c) (India). A child is entitled to free and competent legal services. 47 Cr.PC, 1973, s.301(2) (India). 48 Id. note 44, at s.19(4) & s.38(1). 49 Id. note 38, at Rule 3(5). 50 Id. at Rule 2(c). 51 Id. note 44. 52 Id. note 49, at Rule 4(2)(a). 53 Id. note 45, at s.25(2). 54 Id. at s.35(1). 55 Id. at s.24(5). 56 Id. at s.33(7). 57 Id. at s.23(2). 58 Id. at proviso to s.33(7). 59 Id. at s.33(8). 60 See Id. note 38 at Rule 7(3)(i) to (xii) The factors to be considered by the Special Court for computing the amount of compensation are given under POCSO Rules. The list is not exhaustive and includes: type of abuse; gravity of the offence and the severity of the mental or physical harm or injury suffered by the child; the expenditure incurred or likely to be incurred on medical treatment for physical and/or mental health; loss of educational opportunity as a consequence of the offence, including absence from school due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason; the relationship 13 immediate needs of the child, this can be done at any stage61 after registration of FIR. It is also important to point out, that such compensation is not payable to the child victim by accused but rather by State Government. For this purpose, every State Government is required to prepare a Victim Compensation Scheme.62 An award of compensation by Special Court does not extinguish the right of child victim to seek compensation other any other scheme of State or Central Government.63 Therefore, under POCSO Rules, section 357A of Cr.PC Victim Compensation Scheme is also invoked.64

2.2.3 VICTIM PROTECTION MEASURES

2.2.3.1 PRE-TRIAL STAGE

Medical Examination and Treatment - Irrespective of the fact whether FIR has been registered or not, a child victim against whom offence has been committed must be subjected to a medical examination.65 Such examination should be done in accordance to s.164A of CrPC66 by a registered medical practitioner and with consent of victim or by person competent to give consent on behalf of victim.67 It is duty of police to make arrangements to get the victim to nearest hospital within 24 hours of registration of an FIR.68 A child victim should be escorted to a hospital by a female police officer. Further, such examination should not be conducted in presence of police.69 It is necessary for a psychiatrist to be made available to child victim at the hospital.70 In case of a girl child victim, medical examination has to be conducted by a female doctor.71 All medical examination of a child victim must be conducted in presence of victims’ parent or a person whom child trusts.72 In addition to providing treatment for the victim to injury, treatment for possible pregnancy and sexually transmitted diseases should also be administered.73

Other measures such as assistance by experts in registration of an FIR, and representation of lawyer at pre- trial stage have already been discussed earlier.

of the child to the offender, if any; financial condition of the child against whom the offence has been committed so as to determine his need for rehabilitation; etc. 61 See Id. at Rule 7(2); Irrespective of whether “the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, compensation may be awarded”. 62 Id. at Rule 7(4). 63 Id. at Rule 7(6). 64 Id. at Rule 7(3). 65 Id. note 59, at s.27(1). 66 Id. at s.27(1). 67 See Id. note 47, at s.164A(1); Medical examination of the victim of rape - Without any delay, medical examination should be conducted within 24 hours of the police receiving information about commission of such offence. 68 Id. note 66, at s.19(5). 69 Medical Examination and Reporting for Sexual Violence, the Guidelines & Protocols, 2014. 70 Psycho-Social Care for Survivors /Victims, the Guidelines & Protocols, 2014. 71 Id. note 66, at s.27(2). 72 Id. at s.27(3). 73 Id. note 64 at Rule 5(4). 14 2.2.3.2 TRIAL STAGE

In Sakhsi74 case, Supreme Court issued number of directions which have to be followed in case of child sexual abuse. These directions were incorporated under POCSO. In case of any sexual offence committed against children, in-camera trial is mandatory.75 In court, child is required to depose in presence of a parent or a guardian or a person whom child trusts.76 A child may also be examined at a different place other than special court, through a commission if it is in interest of a child.77 The examination-in-chief and cross-examination of the child victim must be taken up on the same day on which the child is present in the court78, this is to ensure that the child need not be called on a regular basis to testify. The court should allow frequent breaks to child when they are recording evidence79, they must also take measures such as use screens to ensure that child victim does not come in contact/faces the accused.80 Any question which is to be asked to a child victim has to be submitted to the presiding officer of the court81, this serves as a stage of screening to ensure defense counsel cannot badger the child victim through character assassination. If the trial is for offence of penetrative sexual assault, sexual assault, or aggravated form of the two, or in abetment of such offence. This triggers a presumption82 where it is presumed that accused committed the offence and burden of proof is reversed i.e. instead of prosecution, it lies on the accused. This presumption is also triggered with respect to offences which require ‘sexual intent’, it shall be assumed by the court that accused had culpable state of mind required for the commission of said offence, and burden of proof lies on the accused to disprove the same.83

2.3 GAPS AND CHALLENGES IN IMPLEMENTATION OF POCSO

While POCSO was devised to create a child-friendly adjudication system and provided special rules, courts and procedures for the same. It has not been without its issues, due to tremendous work done by child rights group such as HAQ, Tulir, Center of Child Law at NLS they have highlighted problems with respect to proper implementation of the rules and procedures of POCSO. Some of these are discussed below.

2.3.1 IMPLENTATION ISSUES WITH STRUCTURAL AND PROCEDURAL REQUIREMENTS UNDER POCSO

The structural requirements prescribed under the Act are quite limited, it requires establishment of Special Courts84, to ensure that interaction of child with the criminal justice system is child-friendly. Appointment of Special Public Prosecutor85, who are well versed in dealing with sexual offences against children. And use of

74 Supra note 10. 75 Id. note 72 at s.37. 76 Id. at s.33(4). 77 Id. at s.37. 78 Id. at s.33(5). 79 Id. at s.33(3). 80 Id. at s.36. 81 Id. at s.33(2). 82 Id. at s.29. 83 Id. at Explanation to s.30. 84 Id. at s.28(1). 85 Id. at s.40. 15 various tools and mechanism to ensure that victim does not come into contact with accused at the time of recording of evidence.86 However, these requirements have not been fully complied with.

If we read Proviso to Section 28(1) of POCSO Act, it provides that “if a Court of Session is notified as a children's court under the Commissions for Protection of Child Rights Act, 2005 or a Special Court designated for similar purposes under any other law for the time being in force, then, such court shall be deemed to be a Special Court under this section.” Therefore, POCSO Act in itself does not prescribe that special courts be designated to exclusively deal with sexual offences against child or offences under POCSO Act. This means that court is being overworked as it is dealing with other offences, this results in delay of hearing. So while a child is awaiting trial, he may be exposed to other persons including accused. The Act, also requires that design of court-room should be such as to create a child-friendly atmosphere. This means having separate entrance for accused and victim, separate waiting rooms, and halls being designed in manner to comply with the requirements. However, this is not the case as courts are not designed keeping in mind the interests of children because special courts are not exclusively dealing with these cases. Study conducted by CCL-NLSIU in Delhi, Karnataka, Assam, Andhra Pradesh and Maharashtra reveal that none of the special courts established in these regions are exclusively dealing with cases under POCSO, even though these courts were established as designated special court under this Act.87

The legislative intent behind having a Special Public Prosecutor was to ensure that they are trained with provisions of POCSO and know how to communicate and question the child. However, study has revealed that SPP’s are not exclusively dealing with POCSO Cases.88 In two districts, retired PP were appointed as SPP to try a POCSO case.89 PP and Additional PP in one region were also found to be designated as PP in other regions in Delhi, Assam and Maharashtra.90 Further, these PP due to heavy work-load of other cases are unable to foster a relationship of trust with the child as they only meet the child on the day the case is to be heard.

The Act also prescribes use of tools such as screening, video-conferencing etc. to prevent a child from coming into contact with accused during trial. CCL study has revealed that most courts do not have separate entrances and waiting room.91 Hence, a child has to enter the court room using the same entrance, and wait in the same room as accused. The Act also fails to address the situation, whereby a child could be exposed to accused before the trial or outside the courtroom.

When it comes to procedural compliance, special courts have been vested with the power to take cognizance of the offence without accused being committed for trial.92 However, this power has not been fully utilized. Committal rate has varied from State to State, in Assam 54.65% of cases were committed to Special Courts,

86 Id. at s.36. 87 Sonia Pereira & Swagata Raha, Structural Compliance of Special Courts under POCSO Act, 2012, IMPLEMENTATION OF THE POCSO ACT, 2012 BY SPECIAL COURTS: ISSUES AND CHALLENGES 5 (National Printing Press, Bengaluru, 2018). 88 Id. 89 Id. at 4. 90 Id. 91 Id. 92 Id. note 86, at s.33(1). 16 in Delhi 14.39% of cases were committed, in Assam this percentage was at 11.73 and in Maharashtra it dropped to 7.44%.93 The committal rate also reflects a trend, whereby it is declining in all States with every passing year.

Section 33(2), provides a screening mechanism whereby questions have to be first submitted before the judge and then put before child. With the exception of courtrooms in Kakardooma and Saket in Delhi, in other jurisdictions in Delhi, Assam, Karnataka, Maharashtra and Andhra Pradesh there is a practice of asking direct questions to the child by both the defence lawyers and prosecutors.94 The judges only intervene, if question is asked in a hostile manner or if a child is unable to understand the question. Needless to say it is in contravention with Section 33(2).

The Act also prescribes that identity of child victim must be kept confidential, yet the special courts are doing a very poor job of protecting it. In Andhra Pradesh, in 98.75% of cases studied, identity of victim was revealed in the judgment. In Maharashtra, the identity was compromised in 86.31% of the judgments studied.95 Analysis of judgments in State of Maharashtra, Assam and Delhi reveal that assistance of experts, special educators and interpreters are rarely taken by the special courts. The study also reveals that most special courts don’t even have a list of qualified experts available to them.96

These studies demonstrate that there is a need to strengthen structural and procedural compliance under POCSO. It is important that workload of special courts is reduced as they only take up matters under POCSO. Amendment should be brought to ensure procedures given under the act are complied with not only by special courts, but also by SPPs, Child Welfare Committees and Defence lawyers alike. This is important to fulfil the objective given under the Act i.e. “To safeguard the interest and well-being of the child at every stage of judicial process”.97

2.3.2 CHARGES AND SENTENCING PATTERN

The first judicial process in any criminal trial is framing of charge. Under POCSO, since the accused is produced directly before the Special Judge, the charges are framed by Special Judge if the prosecutor is able to establish a prima facie case against the accused. Yet, there is a lack of consistency amongst special courts when it comes to framing charges under POCSO. The studies have revealed even though prima facie it appears a charge is of an aggravated nature, it has been framed under non-aggravating provision. In many instances, a child under age of 12 year were raped by a relative and were charged under Section 8 instead of Section 10. Analysis of judgments in Maharashtra revealed that while aggravated charges were warranted in 603 cases, they were only framed in 294 cases. This reflects a 51.24% discrepancy, the number was 35% in cases studied

93 Supra note 87, at 20. 94 Id. at.21. 95 Id. at 23. 96 Id. at 25. 97 Id. note 23 at Statement of Objects and Reasons. 17 in Andhra Pradesh.98 The studies further revealed, that charges are commonly framed under Section 4, 6, 8, 10 and 12 of the Act. Charges for other offence, such as failure to report an offence, or using a child for pornography are rarely framed.99

When it comes to sentencing patterns, it was found that special courts rarely awarded maximum sentence and lean towards imposing mandatory minimum sentence. Minimum sentence was awarded in 75% of cases in Assam, 72.05% in Maharashtra, 54.94% in Delhi and 39.39% in Andhra Pradesh.100 This trend can be ascribed to scenario where judges are of the view that minimum mandatory punishment under POCSO is relatively high, and therefore, serves as an adequate punishment. So, if the object behind minimum mandatory and enhanced maximum punishment under POCSO was to deter the criminals, then then sentencing patterns suggest that it is not being met. Option is to both takeaway the discretion and remove mandatory minimum punishment, or to bring out comprehensive guidelines which provide mitigating and aggravating factors which are to be taken into consideration by judges while awarding sentence.

2.3.3 CHALLENGE OF AGE-DETERMINATION OF VICTIMS

The primary challenge arises due to a poor maintenance record of birth certificates in India. In POCSO, age- determination is crucial if the case is one involving a romantic element where victim has refused a medical examination or if victim claims to be above 18 years of age. Courts have to rely on poor age documentation records, in many instances recourse is taken to school records. The issues emerged due to admission being granted upon oral statement given by the parents without any birth certificate, and in cases birth certificate was given, it was not original as the date of birth stated in there was incorrect.101

Courts have to rely on ossification test to determine the age of victim. When it comes to results of ossification test, courts have very seldom given the benefit of doubt in favour of victim. If the radiological examination reveals the age of child to be between 14-16 years, the courts have often added 2-3 years on the upper age limit to conclude that victim is not a child. This is in contravention to Supreme Court ruling102 whereby they said, if medical evidence points to a particular age group, the court cannot add 2-3 years on top of upper age limit. Doing so would be without any foundations. Therefore, Special Courts’ interpretation of ossification test has varied and no uniformity can be found between the cases, therefore, many victims have been denied benefits of this Act. It is also important to point out that Supreme Court has re-iterated that “Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other circumstances.”103

98 Shraddha Chaudhary, Charges and Sentencing Patterns under POCSO Act, 2012, IMPLEMENTATION OF THE POCSO ACT, 2012 BY SPECIAL COURTS: ISSUES AND CHALLENGES 55 (National Printing Press, Bengaluru, 2018). 99 Id. at.56. 100 Id. at 59. 101 Swagata Raha, Challenges related to Age-Determination of Victims under POCSO Act, 2012, IMPLEMENTATION OF THE POCSO ACT, 2012 BY SPECIAL COURTS: ISSUES AND CHALLENGES 89 (National Printing Press, Bengaluru, 2018) 102 State of Karnataka v. Bantara Sudhakar, (2008) 11 S.C.C. 38. 103 Mukarrab v. State of U.P. Cr. A. No. 1119-1120/2016 (30.11.2016 - SC). 18 2.3.4 CASES INVOLVING A ‘ROMANTIC RELATIONSHIP’

The Special Courts have demonstrate laxity in cases involving romantic element. Romantic relationship in here denotes whereby the child victim allege they are in a relationship with the accused, or married to him/her. In majority of these cases, special courts have deemed victim to be a major and not even ordered age- determination tests.104 POCSO criminalizes all under-age activities with a minor, so mandate of law prescribes punishment. But, on the other hand, there is a social reality of minors being curious to explore their own sexualities once adolescent years hit. In trying to balance the disconnect between mandate of law and social reality, courts have been lenient in cases involving romantic relationship between the victim and the accused. But this leniency has not stemmed from consideration of well-being of the victim, but it is rather based on patriarchal notions of consent.105 Special courts have shirked from scrutinizing the circumstances under which this consent was given and in doing so ignored the deeper issues underlying these romantic cases.

2.3.5 MAJORITY OF CASES RESULTING IN ACQUITTAL

Conviction rates in POCSO cases in 2014 were at 16.33%, 19.65% in 2015, and 18.49% in 2016.106 The reasons stated in the judgments behind the acquittal in majority of the cases was that prosecution had failed to prove their case. In a study conducted by CCL-NLSIU, whereby 667 judgments were analysed, the common thread which emerged in the cases resulting in acquittal, was victim turning hostile. It was found that victim only testified against the accused in 26.7% of studied cases, and turned hostile in 67.5% of cases.107 The rationale behind such a high percentage of victim turning hostile can be adduced to long-drawn out proceedings under POCSO, since the Act doesn’t provide measures against exposure of victim to accused outside of court. This is used by the accused to pressurize victim and their families to backtrack their complaint. The situation is further complicated if accused is a family member or known to the victim, as they are in majority of cases. Furthermore, there is a culture of shame and silence after sexual abuse. In many instances, victim is coerced by family members to let the incidence go especially when the perpetrator is another family member or a relative or a powerful party.

Overall, POCSO is a legislation which is victim oriented compared to other criminal laws which are accused centric. Precedence is given to rights and interests of the victim at every stage from pre-trial stage to, trial stage to, post-trial stage. This is evident by the different types of mechanisms which have been envisaged within POCSO and other rules and guidelines. There are certain issues such as presumption under Section 29 and Section 30 of POCSO which assume the requirement of mens rea and goes against the very core principle of criminal law i.e. innocent until proven guilty. The benchmark to disprove the same is also too high. The

104 Supra note 101 at 91. 105 Shraddha Chaudhary, “Love”, Consent and POCSO, IMPLEMENTATION OF THE POCSO ACT, 2012 BY SPECIAL COURTS: ISSUES AND CHALLENGES 142 (National Printing Press, Bengaluru, 2018). 106 Abhishek Angad, Why most POCSO Cases result in acquittal?, (June 25, 2018) https://indianexpress.com/article/cities/delhi/pocso-a-case-study-delhi-high-court-child-sexual-abuse-cases-4912888/ (Last visited on May 7, 2019. 107 Urmila Pulat, Child Sexual Abuse and the Culture of Shame and Silence, IMPLEMENTATION OF THE POCSO ACT, 2012 BY SPECIAL COURTS: ISSUES AND CHALLENGES 167-168 (National Printing Press, Bengaluru, 2018). 19 issues pertaining to implementation have also been highlighted in great detail, the practice of POCSO deviates in many instances from the intent for which it was enacted but it can be remedied through Amendment which calls for stricter compliance and provides guidelines for the same. In the grand scheme of things as the overall law cannot be said to be bad, in fact it is a good legislation for child victims, as the same line of thought can be traced throughout the legislation i.e. it is concerned with their protection and rehabilitation.

20 CHAPTER 3

THE CRIMINAL LAW (AMENDMENT) ACT, 2018

There are number of factors which lead to enactment of Criminal law, ideally there should be a principled based development of criminal law founded on principles which inform and justify the need to criminalize human behaviour. But in many instances, it is guided by external factors such as pressure of various rights group, campaign in the mass media, public protest and so forth. After the Supreme Court decision in 1983108, led to reform in rape laws. Development stagnated in the next three decades, but the discussion regarding reforms in rape law had been ongoing during this time period. Cases of Jhaku109 and Sakshi110 brought to light the issues plaguing rape law, one of the being narrow definition of rape under existing law at the time. Law Commission in 2000111 also called for changes to be brought in rape law, two Criminal law (Amendment) Bill related to it lapsed in 2008 and 2010. Another Bill was pending in Parliament in 2012, before a brutal gang rape incident occurred in Delhi on December 16, 2012. It is only in aftermath of this incident and resultant outrage in country which demanded imminent changes to be made in rape laws, did State shift its focus. Justice Verma Committee was setup, and on basis of report submitted by it, the Criminal Law (Amendment) Act, 2013 was enacted. The development of Criminal Law (Amendment) Act, 2018 is also rooted in similar circumstances as it was brought by the Government to subtle the public outrage in aftermath of two child rape cases in 2017 and 2018.

3.1 BACKGROUND OF THE AMENDMENT

On June 4, 2017 an accusation was made by a teenage girl that Bhartiya Janta Party MLA Kuldeep Singh had raped her in his house. The victim tried to commit suicide by setting herself on fire in front of the residence of Yogi Adityanath, the Chief Minister of Uttar Pradesh.112 In January, 2018 a similar incidence was reported in Kathua, a district of and Kashmir where an 8 year old girl was kept in a shrine and continuously raped for several days before being murdered.113

Both these cases received significant coverage in all corners of the country, and sparked widespread outrage with joint protests being organised to seek justice for both the victims, including opposition party.114 In the

108 Tukaram v. State of Maharashtra, (1979) 2 S.C.C. 143. 109 Sudesh Jhaku v. KCJ & Ors. (1998) Cri. L.J. 2428. (DELHC). 110 Id. note 10. 111 Review of Rape Law, Law Commission 172nd Report. 112 See on Unnao Rape Case; HT Correspondent, Timeline of Unnao Rape Case, HINDUSTAN TIMEs (Apr. 10, 2018) https://www.hindustantimes.com/india-news/all-that-has-happened-in-unnao-rape-case-a-timeline/story- mawXOV70RXnt74VNdiJ02I.html (Last visited on May 8, 2019). 113 See on ; Shrishti Magan, A Timeline of Kathua’s Horrific Gang-Rape & Of An 8-Year-Old That’s Burning The Nation Today, https://www.scoopwhoop.com/kathua-gang-rape-murder-shocking-details/#.ibthsthyp (Last visited on May 8, 2019). 114 Congress march highlights: Party holds nationwide protest, seeks justice in Kathua, Unnao rape cases, FIRSTPOST (Apr 13, 2018) https://www.firstpost.com/india/congress-march-live-updates-party-holds-nationwide-protest-seeks-justice-in-kathua- unnao-rape-cases-4430627.html (Last visited on May 8, 2019); ‘Massive Protests in Delhi, Against Kathua & Unnao ’, THE QUINT https://www.thequint.com/news/india/mumbai-protests-against-kathua-unnao-rapes (Last visited on May 8, 2019). 21 aftermath of this incident, many State assemblies including Rajasthan, Madhya Pradesh, and etc. passed anti-rape bills which provided for death penalty for rape of a minor.115 Following this, an Ordinance was promulgated by President for Criminal Law Amendment on April 21, 2018. Subsequently, this Ordinance was replaced by The Criminal Law (Amendment) Bill which was placed before the Parliament for consideration. The Bill was passed by the Parliament on August 6, 2018 and after being given assent by President, the Act came into force.116

3.2 ANALYSIS OF PROVISIONS OF ACT

The Act brought numbers of substantive changes to IPC, with focus on increasing the quantum of punishment for offences of rape. Section 376 was amended, whereby minimum punishment for offences falling within purview of Section 375 stands at 10 years of imprisonment. No amendment was made to punishment prescribed for aggravated rape under Section 376(2). This seems illogical because punishment should be proportionate to the seriousness of wrong-doing yet despite aggravated rape being a more serious form of rape, minimum punishment for it is 10 years, and stands on same footing as in case of rape.

The Act also repealed Section 376 2(i) and replaced it with a new Section 376(3) which provides that if an aggravated rape is committed on a woman below the age of 16 years, then minimum punishment is 20 years of imprisonment and maximum is imprisonment for life. Issue with this section is that it lacks the requirement of mens rea, therefore both cases of consensual and non-consensual sex are covered under it. Hence, if an 18 year and 1 month old boy has consensual sex with a girl aged 15 years and 11 month, then also Section 376(3) would be attracted. Another issue is that, under IPC age of aggravated rape in relation to underage sexual activity is 16 years. This was raised from 12 to 16 years by The Criminal Law (Amendment) Act, 2013. Under s. 5(m) and 9(m) of POCSO Act, 2012 age of aggravated rape continues to be 12 years. Therefore, there exists a conflict between IPC and POCSO.

Perhaps, the most important changes this Amendment brought was through insertion of three new offences, two of which provide for death penalty as a punishment. This is addition to two existing provisions under IPC which provide death penalty as a punishment, rape that results in death of victim or leaves here in a permanent vegetative state117 and repeated offence of rape.118 It is important to note, what is contained in these new provisions was already covered under IPC and a special legislation in POCSO.

1. Section 376AB provides punishment for rape on woman below the age of 12 years, minimum is imprisonment for 20 years, maximum is imprisonment for life, or with death.

115 Haryana Assembly okays death penalty for child rape, (Mar. 16, 2018) https://www.thehindu.com/news/national/other-states/haryana-assembly-okays-death-penalty-for-child-rape/article23268202.ece, (Last visited on May 8, 2019). 116 President gives assent to the Criminal Law (Amendment) Act, ECONOMIC TIMES (Aug. 12, 2018) https://economictimes.indiatimes.com/news/politics-and-nation/president-gives-assent-to-the-criminal-law-amendment- act/articleshow/65374343.cms?from=mdr (Last visited on May 8, 2019). 117 Indian Penal Code, 1860, s.376A. 118 Id. at s.376E. 22 2. Section 376DA provides punishment for gang rape on woman below the age of 16 years, there is only one punishment prescribed here i.e. life imprisonment. 3. Section 376DB provides punishment for gang rape on woman below the age of 12 years, minimum is life imprisonment, while maximum is death penalty.

3.2.1 ISSUES WITH PROVISIONS OF GANG RAPE

The Criminal Law (Amendment) Act, 2013 made changes to the definition of gang rape under Section 376D, it reads as ‘Where a woman is raped by one or more persons constituting a group or acting in furtherance of common intention each of those persons shall be deemed to have committed the offence of rape’. The emphasis has to be placed on ‘or’, Section 34 of IPC provides the principle of group liability whereby common intention is the key factor. However, this new definition created a distinction between constituting a group or acting in furtherance of a common intention.

The same definition has been used under Section 376DA and 376DB. Therefore, there could be a scenario where a person is part of a group, and the victim is below 16 or 12 years of age, this section would be attracted. When punishment is that of death penalty, can we really afford room for interpretative error? This Act had an opportunity to clear the confusion which has been prevalent in gang rape cases with regards to principle of group liability since 2013, not only did it not take that opportunity. It further worsened the situation by introducing death penalty as a punishment.

With regards to CrPC and IEA, the Act only brought cosmetic changes in form on nomenclature, whereby these two legislations were amended to incorporate new sections created under IPC.

3.3 DILUTION OF POCSO

With most of our criminal law and procedures being accused centric, POCSO was a unique legislation as it was created while keeping interests and rights of child victim at the forefront. Every time an amendment is made to any Criminal Law which overlaps with POCSO whereby quantum of punishment is increased, POCSO is diluted. This is due to Section 42 of POCSO, which provides that in case of a conflict, whereby an act or omission constituting an offence is covered under POCSO as well as any other law in force, offender shall be sentenced under that law which prescribes a higher punishment. Problem is, that in order to invoke Section 42, the prosecution has to charge the offender under both POCSO as well as the other law. This defeats the purpose of having a special legislation, with special courts and procedures.119

If the Criminal Law (Amendment) Act, 2018 had also amended the provisions under POCSO which overlap with IPC and matched the quantum of punishment for offences, then victim could still take benefits under POCSO. But this is not the case, as IPC and CrPC would be invoked in these offences and the entire criminal

119 Mrinal Satish, Laws Relating to Sexual Violence in India: Constitutional and Human Rights Dimension, NHRC L.J. 245 (vol.15, 2016). 23 trial process would be governed by it. While, the Supreme Court has evolved the jurisprudence of rights available to child victim and come to their aid as in case of Sakshi by issuing directions. Overall, they still do not match up to the standard of protection which is available to a child under POCSO and its Rules. An example could be taken under Section 146 of Cr.PC, whereby prosecution could ask the victim certain questions in order to test their veracity etc. during cross-examination. The Criminal Law (Amendment) Act, 2013 added a proviso to this section, that questions relating to ‘general immoral character’ or past sexual experiences of victim to impeach their credibility cannot be asked. But defence, still try to insinuate immoral character of the victim by using the evidence collected during medical examination and displaying them in open court, such as undergarments of the victim. POCSO specifically provides for screening of cross- examination of questions as they are to be submitted before the judge in order to ensure these problems do not occur.120 In any rape trial, victims’ testimony is the most crucial evidence on which the prosecution case rests. In Rameshwar121, Supreme Court had held that sole testimony of the victim is sufficient to convict an accused. Therefore, throughout the trial defence tries to discredit the testimony of witness and adopt different types of mechanism to do so, as discussed above. With this Amendment, a child victim would be exposed to all kinds of tricks which are generally used by defence lawyers in rape cases.

POCSO was designed in a manner to adopt a more sensitive approach to child victims, from special judges to special public prosecutors they are all trained to pay special care and attention to child at every stage of judicial process. In a regular criminal trial of rape, this is not the case as Supreme Court has construed various types of stereotypes related to rape victim122, such as they would generally belong from a rural area and have a conservative family background, they would exhibit signs of emotional trauma, suffering and agony on account of rape.123 Section 280 of CrPC also comes into play, as presiding judge is required to make a note in transcript on how the witness is behaving, what is their demeanour during examination. If the victims conform to the stereotypes as constructed by the Court, then their testimony could be believed and acted upon without any corroboration.124 This is problematic because rape victims may not react in a common pattern, reaction of one rape victim may be completely different to another. This is applicable more so than ever in cases of child rape, a child they may be at different stages of emotional, physical and mental development depending upon their age. Their behavioural pattern may not conform to the profile of a stereotypical rape victims which have been construed by the courts. Therefore, if a judge finds that behaviour of a child does not align with myths and cultural stereotypes of rape, then his/her testimony may not be believed. And as mentioned before, victims’ testimony is of utmost importance in a rape trial.

Another object behind enactment of POCSO was to create a system of speedy-trial where justice could be administered to child victims in a swift manner, so as they are not made to suffer for long periods as they

120 Id. note 80. 121 Rameshwar v. State of Rajasthan, A.I.R. 1952 S.C. 54. 122 Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 S.C.C. 217. 123 See Rafiq v State of UP, (1980) 4 S.C.C. 262; The Court coined a stereotype that a rape victim feels a deep sense of deathless shame. 124 MRINAL SATISH, DISCRETION, DISCRIMINATION AND THE RULE OF LAW: REFORMING RAPE SENTENCES IN INDIA 42 (CUP Nov. 2016). 24 would under an ordinary criminal trial.125 With introduction of death penalty in this framework, this problem is worsened. There are multiple layers and safeguards which State has to go through before death penalty sentence is confirmed until finality. Compared to an ordinary criminal trial, death penalty cases run for even longer time. Child victims would be subjected to this extremely long and arduous process in their development years. The Act does not account for adverse impact this would have on a child and turns a blind eye to shortcomings in implementation of POCSO which have been highlighted through various research. In pushing forward on retributive lines of perpetrator being served with harshest punishment possible, Government has ignored to answer the question, if this is really ‘justice’ for child victims.126

125 Id. note 120, at s.35(2); It requires, that as far as possible, trial should be completed within a period of 1 year from date on which cognizance is taken. 126 Supra note 7. 25 CHAPTER 4

DEATH PENALTY IN INDIA

If we cast a look at world legal systems and their history, we shall discover that capital punishment was entrenched in them as it was looked as a penal weapon of social control.127 It took sustained abolitionist movement over decades to finally bring reform and do away with capital punishment in many of these societies. Over 105 Countries have abolished Death Penalty, with Burkina Faso being latest to do so in 2018.128 Yet, India remains one of 53 countries who stand firm on capital punishment. While the broad issue around death penalty centres on human rights ideals and liberal utilitarian approach. In India, issues run deeper than that. There are issues surrounding various aspects of death penalty such as low rate of execution129, long- drawn and delayed procedure which has adverse impact not only on victim but also on perpetrator and their families while on death row, the underlying principles which have been used by courts to justify capital punishment are also open to scrutiny. While the Supreme Court in Mithu Singh130 emphasized, that a provision cannot provide sole punishment in form of death penalty for a particular offence, the same would be unconstitutional. It awards discretion to judges to choose between two sentences. This is where the biggest issue pertaining to death penalty has emerged, in cases where judges have opted for death penalty, there has been an inconsistent and arbitrary application of ‘rarest of rare’ doctrine in doing so, which is the focus of this chapter.

4.1 TRANSFORMATION FROM ‘SPECIAL REASONS’ TO ‘RAREST OF RARE’

CrPC divides a trial into two separate stages, one for conviction, and another for sentencing. Section 354(3) of CrPC provides “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.” This ‘special reason’ requirement for death was interpreted by the Supreme Court in Bachan Singh in 1980.131 It said, that death penalty should only be awarded ‘in rarest of rare cases when the alternative is unquestionably foreclosed’.132 The Supreme Court issued guidelines on how to administer death penalty in a particular case by taking into account aggravating and mitigating circumstances related to both the ‘crime and criminal’.133 The Supreme Court laid down certain category of cases, whereby a court may exercise its discretion to award death

127 ROGER HOOD AND CAROLYNE HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 10 (5th ed. OUP 2015). 128 Burkina Faso: Abolition of death penalty a hard-won victory, AMNESTY INTERNATIONAL (June 1, 2018) https://www.amnesty.org/en/latest/news/2018/06/burkina-faso-abolition-of-death-penalty-a-hardwon-victory/ (Last visited on May 9, 2019). 129 See CENTRE ON THE DEATH PENALTY, NATIONAL LAW UNIVERSITY DEATH PENALTY INDIA REPORT (May 2016); According to this report, post-Independence 1414 prisoners have been executed; since 1991, only 26 executions have taken place with most recent in 2015 with hanging of Mohd. Amir Ajmal Kasab. 130 Mithu v. State of Punjab, A.I.R. 1983 S.C. 473. 131 Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898. 132 Id. at para 207. 133 Id. at para 199. 26 penalty134, and laid down certain circumstances which have to be taken into account while exercising such discretion.135 It is important to point out that in Bachan Singh, the court rejected strict categorization of offences whereby death penalty could be awarded. But in subsequent cases, it came up with category of cases which could fall within the purview of ‘rarest of rare’. Macchi Singh136, is a prime example of it. In here, the Supreme Court interpreted ‘rarest of rare’ as those cases where “Community in its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.” The court then went to cite certain examples whereby community would share this sentiment and came up with new factors such as manner of commission of murder, motive of murder, magnitude of the crime, personality of victim and anti- social or socially abhorrent nature of the crime.137

The issues pertaining to ‘rarest of rare’ doctrine are Firstly, while in formulation of it, court came up with certain guidelines on sentencing policy, which encroaches upon the domain of other two branches of government. Secondly, since there is no strict categorization on what constitutes as ‘rarest of rare’ case, this doctrine empowers the judges to exercise their discretion in trying to determine if the case falls within the category of ‘rarest of rare’, and therefore, new situations could be added under it. Lastly, the biggest issue is regarding the inconsistent application of the guidelines and directions which have been issued by the Supreme Court.

4.2 INCONSISTENT AND ARBITRARY EXERCISE OF ‘RAREST OF RARE’ DOCTRINE

A lot of research work has been done in analysis of death penalty cases, and it has emerged that these cases are governed more by personal philosophy of the judges rather than guidelines or policy issued by Supreme Court which govern judicial discretion in this area.138 Prior to Criminal Law (Amendment) Act, 2018, death penalty in rape cases was only awarded if case was coupled with murder. But even here, it is difficult to map out consistency in application of guidelines as prescribed in Bachan Singh.

If we look at case of State v Suresh139 the accused was convicted by trial court for rape and murder of a 4 year old child and sentenced to death penalty, while Supreme Court recognized that the case would fall in ‘rarest of rare’ category, it did not award death penalty because High Court had altered the death penalty given by

134 See Id. at para 200; Aggravating circumstances could be if (a) murder is committed with exceptional depravity (b) if murder has been committed after previous planning and involves extreme brutality (c) if the murder is committed by the member of armed force, or a member of any police force or public servant on duty. Read para 200 for more. 135 See Id. at para 204; Mitigating circumstances could be if (a) offence was committed under influence of extreme and emotional disturbance (b) age of accused, if accused is young or old, then cannot be sentenced to death (c) Probability of accused to be reformed and rehabilitated (d) That in facts and circumstances of the case accused believed he was morally justified in committing the offence (e) That the accused acted under the duress or domination of another person. Read para 204 for more. 136 Macchi Singh v. State of Punjab, 1983 A.I.R. 957. 137 Id. at para 431. 138 Amit Bindal and C Raj Kumar, Abolition of Death Penalty in India: Legal, Constitutional, and Human Rights Dimension, CONFRONTING CAPITAL PUNISHMENT IN ASIA: HUMAN RIGHTS, POLITICS AND PUBLIC OPINION 129 (1st ed. OUP 2013). 139 (2000) 1 S.C.C. 471. 27 trial court. It is difficult to confine a logic to it, it is whim and fancies of judges which regulate the discretion in this area. A stark contrast to this case would be that of Dhananjoy Chatterjee140 whereby a security guard was sentenced to death penalty for rape and murder of an 18 year old girl. Despite lack of a direct witness for rape and murder, he was convicted solely on the basis of circumstantial evidence. His conviction and death sentence was upheld by both the High Court and Supreme Court. But reasons, given by Supreme Court do not align with similar cases, court gave emphasis on accused act of absconding and this played a key role in persuasion of his guilt. The court said “The faith of the society by such a barbaric act of the guard, gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of the society. The crime has shocked our judicial conscience. There are no extenuating or mitigating circumstances whatsoever in the case.” “This case is a "rarest of the rare" case which calls for no punishment other than the capital punishment”141 In a 2018 case142, accused was awarded death sentence by trial court for rape and murder of an 8 year old child. High Court confirmed the death penalty due to ‘gravity of crime’ and in order to ‘send a message to the society’ to deter potential offenders. Another similar case143 came up in Indore last year, whereby accused Naveen Gadke was awarded death penalty for rape and murder of a 3 month old child. Madhya Pradesh High Court, upheld the conviction and death sentence. But, in both these cases Supreme Court has put a stay on execution of death sentence.144 It is highly unlikely that either of the cases will result in judicial execution, since the turn of 21st Century, Dhananjoy Chatterjee is the only person to be judicially executed for an offence not related to terrorism.

The confusion surrounding ‘rarest of rare’ doctrine has been prevalent for four decades, mainly because the test in itself has been misunderstood. The task of a judge is not to ascertain the ‘rarity of crime’ and use it as a qualifying criteria to award death penalty. The sentencing framework is much different, as first requirement is for judge to balance the mitigating factors with aggravation factors. Mitigating factors are related to the circumstances of the accused, while aggravating factors is related to the crime. The principles provided in Bachan Singh clearly prescribe that there is not one factor which can trump another as a judge is required to give a “liberal and expansive construction to mitigating factors”145, it does not talk about aggravating factors. The doctrine clearly places an obligation upon the State to prove that accused cannot be reformed or rehabilitated. Once the judge has been satisfied by all the requirements, then he shall only award death penalty as a last resort i.e. “alternative of life imprisonment is unquestionably foreclosed.”146 But these principles have not been put into application by judges.

140 Dhananjoy Chatterjee v. State of West Bengal, 1994 S.C.R. (1) 37. 141 Id. at para 16. 142 Veerendra v. State of Madhya Pradesh Cr.A No. 39/2015 (27.12.2014 - MPHC). 143 Naveen Gadke v. State of Madhya Pradesh Cr.A No. 3830/2018 (24.12.2016 - MPHC). 144 SC Stays Execution Of Death Sentence In Rape-Cum-Murder Case, LIVELAW (Jan. 5, 2018) https://www.livelaw.in/sc-stays- execution-death-sentence-rape-cum-murder-case-read-order/ (Last visited on May 10, 2019); SC stays death penalty of man in child rape and murder case, BUSINESS INSIDER (Mar. 18, 2019) https://www.business-standard.com/article/news-ani/sc-stays-death- penalty-of-man-in-child-rape-and-murder-case-119031800347_1.html (Last visited on May 10, 2019). 145 Id. note 131, at para 207. 146 Id. 28 4.3 SENTENCING PRINCIPLES FOLLOW BY JUDGES WHILE AWARDING DEATH PENALTY

With lack of consistency in application of ‘rarest of rare’ doctrine, a study was conducted by Centre of Death Penalty at National Law University Delhi to understand judicial thought and adjudicatory processes that governs the administration of the death penalty within India’s criminal justice system.147 Through in-depth interviews, and questionnaire, 60 former Supreme Court judges were asked to decide hypothetical cases by determining guilt, and sentencing the accused. This study offers a view into the mind of judges, to see what principles/reasons are critical to them to determine if a case falls into ‘rarest of rare’ category or not. It also offers an insight into the manner in which the judicial discretion is exercised by judges in cases involving death penalty. Findings which emerged out of this study are fascinating and some of them are discussed below

4.3.1 UNDERSTANDING OF ‘RAREST OF RARE’ BY FORMER JUDGES

Only 13 judges out of 60 explicitly stated their understanding of this doctrine. The meaning of the doctrine which emerged was varied and quite different from what was envisaged in the framework of Bachan Singh. One of the judges deemed it to be those ‘crimes which affect human values’, other said ‘when the crime is doing with any reason or motive’, while another adduced that ‘rarest of rare is to be determined by five categories provided in Macchi Singh’148. Some of the judges said that are certain ‘categories of crime’ which qualify as ‘rarest of rare’ such as ‘brutal multiple where victims are women and children’, ‘rape and murder of minor’, ‘terrorism’, ‘killing family for property’.149 As discussed above, Bachan Singh never endorsed strict categorization of offences and yet understanding of former judges is in complete parlance to the judgment. These 13 judges confirmed 41 death sentences in 80 death penalty cases between them. One of the judges who decided over 100 death murder cases summed up the problem, “But at the end of the day, every judge will have his own concept of what is rarest of rare”150. Therefore, it should not come as a surprise, when courts at all levels have struggled to apply ‘rarest of rare’ doctrine in a consistent and uniform manner.

4.3.2 JUDGES ON MITIGATING AND AGGRAVATING FACTORS

Bachan Singh provided a list of mitigating and aggravating factors, but study reveals there is a departure from those and judges have a tendency to exclude certain factors in mitigating list, while placing an emphasis on aggravating factors by over-including certain factors on aggravation side. When it came to aggravation factors, ‘brutality of the crime’ emerged as most dominant, as one judge said “The heinous nature of crime certainly colours our judgment”151 The framework provided in Bachan Singh is much more comprehensive and requires judges to go far beyond than just examining the brutality of crime. There were disagreement between the

147 CENTRE ON THE DEATH PENALTY, NATIONAL LAW UNIVERSITY, MATTERS OF JUDGMENT: A JUDGES OPINION ON THE DEATH PENALTY AND THE CRIMINAL JUSTICE SYSTEM, (Delhi Press Nov. 2018). 148 Id. at 57 Chapter 2, Sentencing in Death Penalty Cases. 149 Id. at 56 150 Id. at 55. 151 Id. at 65. 29 judges when it came to ‘collective conscience of the society being shocked by the crime’ as one of the aggravating factors. 15 judges failed to see any legitimacy in seeing ‘collective conscience’ as a factor while determining sentence in death penalty cases, while 11 of the participating judges deemed it to be an aggravating factor and the same can be found in the 41 cases where these judges confirmed death sentence.152 This is in contradiction to what was provided in Bachan Singh as it explicitly prohibited judges to not be swayed by public opinion.153 Other aggravating factors which emerged were regarding nature of victim whether minor or a woman, pre-mediating killing was also deemed as one factor.154

When it came to mitigating factors, 33 former judges provided a list on what they deem to be mitigating factors, some of the were poor socio-economic background, first time offender, old age, dependency of family etc.155 ‘Reformation of offender’ is one of the mitigating factors as provided in Bachan Singh itself, however views of judges differed in this regard. 6 of them deemed reformation to be an irrelevant concept while 14 former judges were of the view, that it has no role to play in death penalty cases. What is more curious, that 10 of the former judges opined that ‘probability of reformation has to be deduced from the brutality and heinousness of the crime’156 This is in contrast to what was propounded in Bachan Singh, probability of reformation has to be considered and it is responsibility of the State to establish that offender is beyond reformation while they are seeking death penalty. This probability need not be examined by judges from the lenses of brutality of the crime, it defeats the purpose.

Possibility of reform is perhaps the most critical mitigating factor, but the courts need sufficient information in order to make that decision which are not provided to them. Supreme Court in Santosh Kumar157 recognized this as they observed that the courts generally “do not have information related to characteristic and socio- economic background of the offender”158 In absence of such relevant information as well as lack of mechanisms through which such information could be procured, courts at all level should be reluctant to award death penalty.

4.3.3. JUDGES ON JUDICIAL DISCRETION IN DEATH PENALTY CASES

The opinion differed on the extent of judicial discretion which judges are armed with while deciding death penalty cases. But from study, it emerged that judicial discretion is guided by various factors, the most dominant factor being ‘background of the judge’.159 31 judges were of the opinion that, socio-economic background, religious beliefs, and class to which a particular judge belongs influence the outcome in a death penalty case. While eight judges were of the view that unguided and unfettered discretion which is awarded to judges under ‘rarest of rare’ doctrine is most significant factor which influences the way in which discretion

152 Id. at 67. 153 Id. note 131, at para 125. 154 Supra note 148, at 66. 155 Id. at 68. 156 Id. at 72. 157 Santosh Kumar Satishbhusan Bariyar v. State of Maharahstra Cr.A No. 1478/2005 (13.05.2009 - SC). 158 Id. at para 60. 159 Supra note 148, at74. 30 is exercised. Another troubling revelation which emerged from the study was that, judges are swayed by public opinion and media pressure in these cases. 17 of the judges answered in affirmative, while 17 rejected the contention by arguing that only those judges with ‘weaker minds’ succumb to pressure from public and media.160

The majority of issues which emerged from this study can be attributed to lack of sound sentencing policy in death penalty cases. The discretion afforded to judge is unstructured plus vague, and therefore it is very wide. This is the reason as to why we see such disparity in death penalty cases. It would be prudent to say laws on sentencing in conjunction with sentencing practices are in urgent need of reform.

160 Id. at 77. 31 CHAPTER 5

IMPACT OF CRIMINAL LAW (AMENDMENT) ACT, 2018

The impact of Criminal Law (Amendment) Act, 2018 can be understood by casting a look at raw data of cases on death penalty. The year, 2018 marked a significant rise in imposition of death penalty by the trial courts. The number of death sentences imposed by trial courts last year were 162, bringing the total number of prisoners who are on death row in India at 426.161 This can be largely attributed to revival of death penalty phenomenon in the country which has only gained traction since passing of this Amendment Act. The only 2 states, where death sentences were imposed under IPC Amendments 2018 were Rajasthan and Madhya Pradesh. Out of 13 cases where death penalty was imposed by the Sessions Court in these two States, 7 were solely for offence of rape of minor girl below the age of 12 under Section 376AB.162 while there was only one case163 where death penalty was awarded under Section 376DB for Gang-rape on a woman below the age of 12 years. These instances mark a change in trend, generally courts at all level including trial level award death penalty in cases of rape if it is in addition to offence of murder.

When it came to High Court, they confirmed death penalty of 23 convicts in 18 of the cases they heard in 2018.164 In 36 cases, death sentence was commuted to life imprisonment, 12 cases resulted in acquittal while 6 were remitted.165 It would be important to note that out of 8 cases mentioned above which were booked solely under offences created by 2018 Act, in 5 of them the High Court has already commuted the death sentence into life imprisonment.166 Only in one case did the High Court confirm death penalty, it would be prudent to analyse the case to find out their reasoning.

State of Madhya Pradesh v. Jitendra Kushwaha167

In the present case, two accused were charged under Section 376AB and Section 302 of IPC and sentenced to death penalty by the Sessions Court. The matter went for confirmation to Madhya Pradesh High Court and they upheld the conviction and the sentence. The judgment is filled with tropes and stereotypes followed by the Courts as discussed in the last chapter.

The courts’ approach towards one of the most critical mitigating factor i.e. ‘probability of reformation’ is shocking, In para 70, court said “Their lack of resources, skills may have a psychopathic personality and they may have been victim of violence in childhood, and therefore, such persons with personality disorder find helpless women and children, powerless persons, as their source of fulfilling, unfulfilled desires and to show

161 PROJECT 39-A, NATIONAL LAW UNIVERSITY, DEATH PENALTY IN INDIA: ANNUAL STATISTICS REPORT 2018 1 (Delhi Press Jan. 2019). 162 Id. at 14. 163 Id. 164 Id. at 15. 165 Id. at 18-22. 166 Id. 161. 167 Cr.A.No.5950/2018 (25.10.2018 - MPHC). 32 to the society that they are the symbols of manhood. In fact cool demeanour of the accused while coming back showing no signs of remorse or introspection leaves to us no manner of doubt that perversity may be beyond reformation.” Not only does it misapply the test of Bachan Singh, where it has been clearly specified that it is for State to establish that victim is beyond any scope of reformation. To make matters worse, courts actually recognizes the possibility of offender being a victim of violence in their childhood (which is one of the mitigating factors in itself) but they swept it aside and again judged the mitigating factors through prism of nature of crime.168 While Bachan Singh also clearly provided, that it is not for judges to form their decisions in accordance to public opinion, the High Court in present case clearly did not pay any attention to it. It is evident by court stating that “Such gruesome cold blooded act of the accused cannot be overlooked at the cost of shaking the conscience of the society merely in the name and hope of some transformation on a future date in the accused/appellant.”169

In trying to ascertain whether the case falls under ‘rarest of rare’, court relied on several judgments and concluded in Para 76, that “It is evident that Courts are required to balance aggravating and mitigating factors, but the fact is that the greatest weight is to be awarded to the brutality of the crime.” This reflects misinterpretation of test laid down in Bachan Singh, the job of a judge is to go more in-depth to balance the mitigating and aggravating factors, it is not restricted to just examining the case through prism of brutality of crime and quantify it as the most dominant factor to justify death penalty.

The approach of Supreme Court in 2018 was in stark contrast to lower courts, it commuted death sentence to life imprisonment in 11 of the death penalty cases which it heard170, only in 1 case did the Apex Court confirm the death sentence to 3 of the convicts in a review petition171, it would not be a surprise to learn the sole case in which Supreme Court confirmed the death sentence was December 16, 2012 Delhi Gang-rape case.172 If the Court upholds this decision in curative petition and clemency petition is also rejected by the President, this case would be only second instance in this century where convicts are punished with death peanalty for an offence other than terrorism. An argument could be made, that reasoning behind this is guided by political and social factors. The Delhi Gang-rape case received significant attention in the country and led to reform of rape laws in 2013. The preceding three executions have this factor common in them, they too received continuous coverage in media and had national and emotional sentiment attached to it.

5.1 EMERGENCE OF DANGEROUS TRENDS

While the impact of 2018 Amendment can be observed through data, it has also resulted in emergence of some rather troubling trends. After this Act came into force, Madhya Pradesh Government came up with a policy

168 See Id. at para 76: “We do not find any mitigating circumstances in favour of the appellant who has not only brutalized the body of a girl child of six years but also her trust and chastity.” 169 Id. at para 74. 170 Supra note 161, at.23. 171 Id. at.25 172 Vinay Sharma, Mukesh Sharma & Ors v. State (Govt. NCT) of Delhi Rev. Pet. 570/2017 (09.07.2018 - SC). 33 whereby it would reward its prosecutors for securing death sentence.173 Such incentive casts serious doubts over the ability of a prosecutor to conduct the trial in a fair manner.

The Act has also accelerated demand for more stringent punishments in criminal law, changes are being sought in several existing legislations to increase the quantum of punishment for sexual offences and introduction of death penalty. The Anti-Maritime Piracy Bill was approved by Union Cabinet in 2018, it contains a provision for offences related to piracy at sea and maritime piracy which are punishable with life imprisonment or death penalty.174 The object behind introduction of this bill was to create a framework for law on piracy and to allow for more stringent punishment for piracy related crimes as existing punishment is not harsh enough.175 The POCSO (Amendment) Bill, 2019 was also introduced in Lok Sabha in January, 2019. The Bill seeks to amend the existing punishment for aggravated penetrative sexual assault. Under Section 6 of POCSO, mandatory punishment is prescribed at 10 years with maximum being life imprisonment. The Bill calls for minimum mandatory punishment being raised to 20 years, while maximum being life imprisonment or death penalty.176 This development is troubling, because while POCSO deliberations were taking place, death penalty was never in consideration as a punishment.177 This was done keeping in mind the long drawn-out nature of these cases, whereas POCSO was designed to create a child-friendly system whereby cases would be disposed quickly.

5.1.1 PRESUMPTION UNDER POCSO

Perhaps the most troubling scenario of the Bill is that, it seeks no changes in regards to presumption which exists under POCSO. Under Section 29, there is a presumption that if the accused has done any act under Section 3, 5 (Aggravated Penetrative Sexual Assault), 7 or 9 of POCSO, then the special court shall presume that such person has committed such offence, unless the contrary is established. Section 30 (1) further provides the presumption for offences which have a requirement of ‘sexual intent’, it shall be presumed by the special court that offender had existing ‘culpable mental state’ i.e. mens rea required to commit such offence and it is upon defence to disprove the fact that accused had no such mental state. Section 30 (2) provides the benchmark for such presumption, it has to be proved ‘beyond any reasonable doubt’ as mere preponderance of probability will not suffice.

Thus, the burden of proof is reversed and onus shifts to defence. These reverse onus clause are exception to the rule of common law that accused shall be presumed to be innocent and it is upon prosecution to prove his guilt beyond any reasonable doubt. With reversal of burden, the defence have to adduce evidence to establish accused innocence. Whenever, any provision presumes requirement of mens rea it goes against one of the

173 Madhya Pradesh govt offers 1,000 points for death sentence, 500 for lifer, INDIAN EXPRESS (Aug. 19, 2018) https://indianexpress.com/article/india/madhya-pradesh-government-eprosecution-mp-app-points-for-death-sentence-lifer- 5313787/ (Last visited on May 12, 2019). 174 The Anti-Maritime Piracy Bill, 2018. (India). 175 Union Cabinet approves stringent anti-piracy law, ECONOMIC TIMES (Aug. 1, 2018, https://economictimes.indiatimes.com/news/defence/union-cabinet-approves-stringent-anti-piracy- law/articleshow/65233755.cms?from=mdr (Last visited on May 12, 2019). 176 The Protection of Children from Sexual Offences (Amendment) 2 (Bill No. 1/2019). 177 Supra note 7. 34 cornerstones of criminal law whereby guilty mind is a pre-requisite to criminal liability. Furthermore, another core principle of criminal law is that prosecution bears the burden of proving guilt. Exception to this, where burden is shifted to defence has been a matter of great debate and attracted scrutiny of many criminal law thinkers.178

Needless to say, the threshold for disproving the presumption under POCSO is too high. Generally, defence has to only break chain of events in prosecution timeline to discredit their case, but in here, the situation is reversed and they themselves has to breakdown and discredit every single link in the chain. Presumption under Section 304B which deals with dowry death has been subject to much scrutiny179 but the punishment under this section does not provide for death penalty. When the said offence is punishable with death penalty, such presumption becomes illogical and excessive. Therefore, reverse onus clause for an offence punishable with death penalty is beyond any scope of rationalization.

178 ANDREW ASHWORTH & JEREMY HOLDER, PRINCIPLES OF CRIMINAL LAW (7th ed. OUP 2013). 179 See Sher Singh Pratap v. State of Haryana, Cr.A 1592/2011; Supreme Court clarified that “prosecution has to prove the ingredients only by standard of preponderance of probabilities but accused has to discharge his burden by proving his defence beyond reasonable doubt”. 35 CHAPTER 6

SUGGESTIONS

The previous chapters have highlighted array of issues which exist in current framework of death penalty and the way Criminal law is being developed in the country. While these issues may be several in number, they are not outside the scope of correction. There are certain reforms which would go a long way in curing the defects which ail our criminal law.

6.1 ADOPTING A PRINCIPLE BASED APPROACH IN DEVELOPMENT OF CRIMINAL LAW

Criminalization is a very important subject-matter because it precedes law making. The reading on decision to criminalize talks about normative aspects of criminalization of conduct i.e. the core principles which inform and justify the need to criminalize human behaviour.180 This part of discussion remains very thinly located in the Indian context. Even if criminalization is done, no discussion occurs on the principle behind the criminalization. The Criminal Law (Amendment) Act, 2018 is a prime example of it. Even though, we had existing special legislation to deal with sexual offences against child, new offences were created. The rationale was to inflict harsher penalties on the offenders as current punishment were seen as inadequate. The time period for development of this law was also short, without any detailed deliberations on existing issues which exist in child sexual abuse framework and what would be the impact of introducing death penalty in this framework.

When it comes to penal philosophy in India, it also reflects a flux of confusion. We have concept of open prisons, yet we persist with death penalties. We have special legislation in form of POCSO, but we don’t have special judges who are trained in the subject matter and understand the nuances of dealing such cases. Therefore, we have judges who are primarily trained in deterrent or a retributive penal ideology.

There are various principles of criminalization which has been developed by criminal law thinkers on the contours of limit of criminal sanction. Two of them are taken for discussion for their universal application.

First is Douglas Husak, who propounded ‘last resort principle’. He is of the view when State has no other alternative to deal with a particular situation, only then they should take recourse to criminal law.181 Criminal law should not be used as a vehicle for State to deal with social concerns. In Indian context, both 2013 and 2018 Criminal Law (Amendment) Act were result of two cases which sparked widespread outrage across the country, they were brought in to deal with a social concern given rise by specific cases. Development of Criminal law on case to case basis is a dangerous trend. Not only would it lead to over-criminalization but due

180 Zachary Hoskins, Criminalization and the Collateral Consequences of Conviction, Cr. Law & Phil. J. (vol. 12, iss. 4, Dec. 2018). 181 Douglas Husak, The Criminal Law as Last Resort, Oxf. J.L.S (vol. 24, iss. 2, July 1, 2004) https://doi.org/10.1093/ojls/24.2.207 (Last visited on May 12, 2019). 36 to public and media pressure, the law would be developed in a shorter time period without devoting required time and resources to deal with complexities underlying these issues.

Second is Andrew Ashworth, who gave core principles without which he believes criminal law will remain a lost cause.

 “The principle that the criminal law should be used, and only used, to censure persons for substantial wrongdoing”182 - The principle emphasizes that since such misconduct could not be prevented, that is the reason for its criminalization. Such wrongdoings need to be identified as they are a matter of social importance but also recognizes the importance of crime preventions strategies to reduce the risk of these wrongs being committed.  “The principle that criminal laws should be enforced with respect for equal treatment and proportionality” 183 This principle provides that law should be gender neutral, and the punishment must be in proportion to the wrong which has been committed. In IPC, minimum punishment for both rape and aggravated rape is 10 years. This is illogical because aggravated rape is a more serious form of rape.  “The principle that maximum sentence and effective sentence levels should be proportionate to the seriousness of the wrongdoing”184 This principles advocates the need for assessment of sentence levels between the offences which are similar in nature. Analysis of provisions of POCSO and IPC for sexual offences against child reveals huge divergence between maximum sentences.

The trend in India shows that the object of criminal law is changing from rehabilitation to incapacitation, it has gone from incapacitation as punishment to incapacitation for punishment and this needs to be corrected. In India there are over 15 lac provisions which provide for criminal sanction and therefore for many offences laws overlap with each other. The reason for this is un-principle criminalization, the underpinnings of criminalization is based on the requirement of necessity to punish a conduct since no alternate recourse is available. So, if an existing legislation is already covering an offence, new law need not be devised. Any lacunae in that legislation can be cured by way of Amendment. It is important for the State to change its current method of making criminal law, the criminal law needs to be developed by first adopting a theory of criminalization185 which fits with the facts, beliefs and principles to guide its choice to punish a particular form of behaviour through criminal justice system. Then it should take into account certain principles and values which guide its decisions about what to criminalize and how to define these offences.

182 Andrew Ashworth, Is the Criminal Law a Lost Cause? Law Quart. Rev. 168 (vol. 116, 2000). 183 Id. at 169. 184 Id. at.170. 185 See theories like normative or legal theory, moral theory, sociological theory etc. 37 6.2 RE-EXAMINING THE CONSTITUONALITY OF DEATH PENALTY

The question regarding the constitutional validity of death penalty has been put before Supreme Court on several occasions, but the courts have stood firm on it. From Jagmohan Singh186 to Maneka Gandhi187, to Bachan Singh the Supreme Court has upheld the constitutionality of death penalty but new arguments have emerged on the basis of which constitutionality of death penalty can be challenged again.

6.2.1 ARBITRAL NATURE OF ‘RAREST OF RARE’ DOCTRINE

In EP Royappa188 the Supreme Court came up with a new concept of equality under Art. 14 of Indian Constitution by propounding non-arbitrariness doctrine. In the aftermath of this decision the courts struck down number of laws, rules, regulations, administrative and executive decisions on the account of arbitrariness and that it was violative of fundamental right to equality guaranteed under the Indian Constitution. Along these lines an argument could be made that doctrine of ‘rarest of rare’ in itself is violative of Art 14. Since the framework provides judge with a discretion whether a particular case will fall within the ambit of the doctrine, the decisions given by a judge to impose death penalty or not is a subjective one. The studies have also revealed that external factors and judges own notions of philosophy and morals play a role in determination of sentence and they are not solely based on facts and circumstances of the case. Even though these factors can be made applicable to all the cases, but in context of death penalty the question revolves around life and death of accused. Therefore, when these factors come into the equation, then the constitutionality validity of the decision making process itself can be challenged.189

6.2.2 APPLICATION OF MODERN TESTS TO EXAMINE THE CONSTITUNALITY OF DEATH PENALTY

Art 21 of the Indian Constitution provides the right to life, and adds that this right may be deprived only in accordance with the procedure established by law. In Maneka Gandhi, the court gave interpretation of this procedure. It held that penalty is constitutionally valid as long as the procedure through which death penalty is inflicted is just, fair and reasonable.

Issue with this concept of just, fair and reasonable is that it is extremely weak and limited. Reasonable classification test under Art. 14 is flawed because it provides that there should be an intelligible differentia and this differentia must have a rational nexus with the object, this places limit upon the courts as they cannot test the objective, they cannot even the test the extent of nexus and question if it is the best way to limit right. With EP Royappa and Maneka Gandhi, the courts interpreted restrictions to be reasonable as long as they were not excessive or arbitrary. Thus, the overall burden of justification of States’ action was too low.

186 Jagmohan Singh v. State of U.P, (1973) 1 S.C.C. 20 187 Maneka Gandhi v. UOI, A.I.R. 1978 S.C. 597. 188 EP Royappa v. State of T.N., A.I.R. 2004 S.C. 394. 189 Supra note 138, at 131. 38 In Bachan Singh, the petitioner had to show that there was no rationality in what the state did and it was upon the petitioner to prove that death penalty had no deterrent effect. The state didn’t have to give any reason. If there was any doubt in the petitioners’ logic it would go in favour of the state and this is exactly what happened. But if were to apply modern tests such as proportionality test then the results would be different, proportionality says that the moment the infringement is made out, the burden is on the state to prove that this was the best decision it could have taken given the interests/values at stake and the various alternatives available to them. The idea of this test is to put the state to a higher burden of justification.

Proportionality Test

Proportionality gives you a standard by which the reasons can be adjudicated. When it comes to human rights adjudication, this test has become a gold standard across the globe. The same has been imported to India and if we were to entertain a hypothetical scenario where a fifteen judge bench of Supreme Court is examining the constitutionality of death penalty by applying proportionality test, what would be the result?

When it comes to proportionality test, different standards have been devised. In here we are assuming the application of German standards. It involves four stages in the following sequence:

(i) Legitimate Goal - The first stage provides that a measure through which a right is being restricted must be designated for a proper purpose. In context of death penalty, the State would have to first justify that they have legitimate means of restricting this right, this can be done by reliance on Art. 21 then they have to establish the purpose which would be to create a deterrent effect. (ii) Suitability/Rational Connection - In the second stage, the State has to establish that this is a suitable means of furthering this goal of creating a deterrent effect. That there is a rational nexus between the means of restriction and the object which it wants to achieve. Even at this stage, it would be really difficult for State to establish that death penalty deters potential offenders because if we look at Crime statistics in the last few years, even though new offences have been introduced which provide for death penalty, the crime rate is not coming down.190 (iii) Necessity - In the third stage, the State has to establish that there are no other less restrictive and equally effective alternatives available to it which can achieve the same purpose. Deterrent effect can be created without resorting to death penalty, judiciary has an option to provide for stringent punishment in form of life imprisonment without remission. State would find it difficult to justify curtailment of right to life. (iv) Balancing - In the fourth Stage, the State has to establish that the importance of achieving the purpose of deterrence will outweigh the social importance of preventing limitation on this fundamental right. In German standard, this is most critical stage as issues are decided at this level, the court will look at the extrusion this measure of death penalty will bring upon the right holder and balance it with the

190 See Supra note 161, at 32. In 2016, total number of death sentences were awarded in 136 cases, in 2017 this number went up to 149, in 2018 this number went up to 162. 39 benefits which will arise out of it. It is important that this measure must not bring disproportionate impact on the right-holder which it clearly does in death penalty cases.

The proportionality test brings a culture of justification and State has to prove their case in each of the four stages. At the legitimate stage, it is likely that States’ claim will succeed as generally any legitimate goal is accepted, and deterrence is one of them. At the suitability stage, even a marginal contribution to the goal is accepted. As the statistics are not really in their favor, State would struggle to build their case. At the necessity stage, State would again have difficulty in providing a justification because death penalty is not the only way to create a deterrence effect, the option for stringent punishment already exists as courts can award multiple life imprisonment without any possibility of remission. At the balancing stage, it is extremely likely that States’ case will fall apart, when it comes to death penalty the statistics are not in their favor because the deterrence effect that they desire to achieve through death penalty is actually not taking place. The overall crime rate is not dropping while there is a consistent pattern when it comes to offences which are punishable with death penalty. On the contrary, prisoners who are on death row develop serious mental issues due to long drawn out nature of these cases before it is decided until finality. The execution rate is also miniscule compared to death sentence which is awarded. Furthermore, the manner in which death penalty is administered is arbitrary. At the balancing stage of this test, when courts will assess the rights which are being abridged (right to life) and balance it with deterrent effect which is ineffective, in all likelihood it would result in death penalty being declared constitutionally invalid.

40 CHAPTER 7

CONCLUSION

Through this dissertation, the different issues plaguing the child sexual abuse and death penalty framework in India have been highlighted in isolation. The Criminal Law (Amendment) Act, 2018 failed to cure any of the lacunas in these framework, and by merging these two frameworks together it created complex, multi-layered issues. In the previous chapter, few reforms have been suggested. But our approach towards bring these reforms has to be methodical and systematic, it should be on a step by step basis.

The immediate step would be to assess the child sexual abuse framework. It is important for us to given precedence to POCSO. It is a very unique legislation which was enacted with the primary aim of safeguarding the rights and interests of the child victim, the same cannot be said for majority of criminal laws which are accused centric and rights of victims are not given importance. The issues underlying POCSO can be corrected through Amendments, the primary issue is lack of resources for its proper implementation. It is imperative that Special Courts enacted under POCSO be made to exclusively deal with cases which are covered under POCSO. The Special Judges and SPP workload must be reduced and they must be given proper training in order to understand the sensitive nature of the subject-matter they are dealing with. For non-compliance with the existing rules and procedures, new directions can be issued describing the manner in which these rules and procedures have to be applied. Sanctions can also be imposed if there is a deviation. The most important change which needs to be brought is under Section 42, preference must not be given to other law which provides for higher punishment. This defeats the purpose of having a special legislation. POCSO can be amended to match the punishment for offences which overlap with other laws. When the punishment is of death penalty, the same cannot be incorporated under POCSO due to presumption under Section 29 and 30.

Second step would be in regards to prevalent death penalty framework in India. There are number of arguments can be made for abolishment of death penalty. The proponents of death penalty generally put forward ‘jus deserts’ argument that the accused deserve to die for the acts they have committed. Even if we were to accept their argument, death penalty should still be abolished because the core issue in death penalty framework is that we do not have a fair way of administering death penalty. The ‘rarest of rare’ doctrine propounded in Bachan Singh established a framework of death sentencing whereby the discretion afforded to judges is too wide and vague. As has been discussed above, there are many external factors which come into play when judges have to choose between life imprisonment and death penalty. Analysis of cases post Bachan Singh, clearly highlight this inconsistency. The solution is not to provide more detailed guidelines for enforcement of direction given in Bachan Singh, the numbers suggest that death penalty is ineffective in achieving its desired deterrent effect.191 Furthermore, when it comes execution rate, they stand at miniscule percentage with

191 Supra note 2, a 91 & 138. s.302 provides punishment of death penalty for Murder. In 2014, 33981 cases were registered, in 2015 this number was 32127, in 2014 it was 30450. For Gang-rape under s.376D - In 2016, 2072 cases were reported, in 2015 this number was 2082. The numbers are pretty consistent across the years. 41 only four executions taking place since 1991.192 Analysis of cases where execution has taken place reveal them to be an exception, these cases became a matter of national importance due to public response and widespread coverage from media for a sustained period of time. In majority of death penalty cases there is a trend, whereby the death sentence is generally commuted to life imprisonment. So what is the ultimate rationale behind keeping prisoners on death row? Studies show that on average it takes 10 years and 5 months before all options are foreclosed and mercy petition is rejected.193 In that time period, the prisoner has to routinely live with a possibility of dying in the future. The prisoners’ family also undergoes through the same experience. The emotional trauma one undergoes through living on death row has also been documented in the studies.194 So why still persist with it? Unless the idea of deterrent effect is rooted in showcasing the suffering of prisoner and his family? Issues around rights adjudication have also been documented in last chapter, the dominant test of just, fair and reasonable is archaic and not effective anymore. In the past two to three years, Indian Supreme Court has been articulating the principle of proportionality for the purpose of testing whether State action is a justified limitation upon rights or not. If this test is applied to examine the constitutionality of death penalty in India, it is likely it would result in its abolishment.

Overall, the biggest problem ailing our criminal justice system is that criminal law is being developed in an ad-hoc manner. There is no structure or principle in place for development of criminal law, which is the reason as to why there has been an over-criminalization in the country. If the foundations on which a law is being made in itself is flawed, then it is inevitable that law will be flawed, and so shall be the results deriving out of it. The State is also using criminal law as a source of power to deal with societal issues. While problems related to offences against children and woman have been prevalent for a long time, it generally takes a trigger point for State to come into action as we saw with 2013 and 2018 Amendment. The State is using these trigger points for political benefits, as it easy for them to collect vote bank by bringing changes to the law in accordance to demand of public. It would be wrong to assume that State is not aware, that the issues on which they are framing laws are quite complex and require great deliberation and research. They simply do not want to engage in dealing with those issues because not only it would require a lot of time and resources, there is a possibility it will not be of much aid for their political aspirations as by the time fruit of labour of those research arrive, they may not be in power anymore.

There needs to be a change in ideology at leadership level when it comes to approaching criminal law, the past decade is revealing a rather troubling trend of thirst for retributive justice. In our quest for it, we are developing criminal laws such as Criminal Law (Amendment) Act, 2018 which are not really beneficial to the victim and any justice received by them is rather hollow and not justice in its true sense. It is imperative that certain guidelines are framed for development of criminal law so as they are not devoid of principles and values. Whenever a law is being framed on a particular matter, it is important to create a temporary committee which

192 Dhananjoy Chatterjee in 2004, Ajmal Kasab in 2012, Afzal Guru in 2013 and Yakub Memon in 2015. Only Dhananjoy Chatterjee was executed for committing an offence not related to terrorism. 193 CENTRE ON THE DEATH PENALTY, NATIONAL LAW UNIVERSITY, DEATH PENALTY INDIA REPORT: SUMMARY 12 (Delhi Press, May 2016). 194 Id. at 36-38. 42 comprises of law-makers, members of public and stakeholders like rights groups and organizations who are experienced and well versed with the underlying issues in that particular matter. Detailed and in-depth research is crucial before any law is drafted, and in order to do so sufficient time and resources must be devoted. Only then can we map out even minutest of inconsistencies and deal with it accordingly. While these changes will take time, a sustained effort has to be maintained by researchers, lawyers, rights group and organizations to study and research these issues to best of our abilities, every academic writing and research work brings out more issues and provides an alternative in how to possibly remedy that situation. This present work is a very small contribution along those lines so as to point out the dangers on following the path we are on, if we do not diverge from it, then our criminal law will continue to flounder and so will the stakeholders along with it.

43 BIBLIOGRAPHY

BOOKS REFERRED

1. Roger Hood and Surya Deva (ed), Confronting Capital Punishment in Asia: Human Rights, Politics and Public Opinion, OUP, 2013. 2. Lill Schredin, Capital Punishment: A Hazard to a Sustainable Criminal Justice System? 1st Edition, Routledge, March, 2016. 3. Roger Hood and Surya Deva (ed), The Death Penalty: A Worldwide Perspective, 5th Edition, OUP, 2014. 4. Robert N. Band and Stuart E. Rosenbaum (ed), Punishment & The Death Penalty: The Current Debate, Promusthus Books, 1995. 5. Jon Yorke (ed), Against the Death Penalty: International Initiatives & Implications, 1st Edition, Routledge, 2008. 6. Stephen Smallbone, William L. Marshall and Richard Wortley, Preventing Child Sexual Abuse: Evidence, policy and practice, Willian Publishing, 2008. 7. Clare McGlyn and Vanessa E. Munro (ed), Rethinking Rape Law: ‘International and Comparative Perspectives’¸ 1st Edition, Routledge-Cavandish, March, 2011. 8. Andrew Ashworth, Sentencing and Criminal Justice (Law in Context), 5th Edition, CUP, 2010.

STATUTES REFERRED

1. The Constitution of India, 1950. 2. The Indian Penal Code, 1860. 3. The Indian Evidence Act, 1872. 4. The Code of Criminal Procedure, 1973. 5. Protection of Children from Sexual Offences, 2012. 6. Goa’s Children Act, 2003. 7. Legal Services Authorities Act, 1987.

REPORTS REFERRED

1. Implementation of The POCSO Act, 2012 by Special Courts: Challenges and Issues, Centre for Child and the Law, National Law School of India University, National Printing Press, Bengaluru, February, 2018. 2. Implementation of the POCSO Act: Goals, Gaps and Challenges: Study of Cases of Special Courts in Delhi & Mumbai (2012-2015), HAQ: Center of Child Rights & Forum against Sexual Exploitation of Children, November, 2017. 3. Frequently Asked Questions on The Protection of Children from Sexual Offences Act, 2012 and The Criminal Law (Amendment) Act, 2013, Center for Child and the Law, National Law School of India University, National Printing Press, Bengaluru, November, 2016. 44 4. Crime in India Statistics 2016, National Crime Records Bureau, Ministry of Home Affairs, New Delhi, October, 2017. 5. Matters of Judgment: A Judges Opinion On The Death Penalty and the Criminal Justice System, Centre on the Death Penalty, National Law University, Delhi Press, November, 2017. 6. Death Penalty India Report, Center on the Death Penalty, National Law University, Delhi Press, May, 2016. 7. Death Penalty in India: Annual Statistics Report 2018, 2017 & 2016, Project 39-A, National Law University, Delhi Press, 2018, 2017 & 2016. 8. Amnesty International India, Lethal Lottery - The Death Penalty in India: A Study of Supreme Court Judgments in Death Penalty Cases 1950-2006, May 2008.

ARTICLES REFERRED

1. Sonia Pereira & Swagata Raha, Structural Compliance of Special Courts under POCSO Act, 2012, Implementation of the POCSO Act, 2012 by Special Courts: Issues and Challenges, National Printing Press, Bengaluru, 2018. 2. Swagata Raha, Challenges related to Age-Determination of Victims under POCSO Act, 2012, Implementation of the POCSO Act, 2012 by Special Courts: Issues and Challenges 89 (National Printing Press, Bengaluru, 2018 3. Swagata Raha, ‘Implementation Woes’, Issue 711, India-Seminar, November 2018. 4. Shraddha Chaudhary, Charges and Sentencing Patterns under POCSO Act, 2012, Implementation of the POCSO Act, 2012 by Special Courts: Issues and Challenges, National Printing Press, Bengaluru, 2018. 5. Shraddha Chaudhary, “Love”, Consent and POCSO, Implementation of the POCSO Act, 2012 by Special Courts: Issues and Challenges, National Printing Press, Bengaluru, 2018. 6. Michelle Obermann, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, Buffalo Law Review, vol. 48, 2000. 7. Irina Anderson, What is a typical rape? Effects of victim and participant gender in female and male rape perception, British Journal of Social Psychology, January 10, 2011. 8. Urmila Pulat, Child Sexual Abuse and the Culture of Shame and Silence, Implementation of the POCSO Act, 2012 by Special Courts: Issues and Challenges, National Printing Press, Bengaluru, 2018. 9. Jennifer Bays Beinart, ‘Beyond Trafficking and Sexual Exploitation: Protecting India’s Children from Inter and Intra-Familial Sexual Abuse’, 21 Ind. Int’l & Comp. L. Rev. 47 (2011). 10. Anup Surendranath, ‘Death penalty for child rape: dangerous and ineffective’, Issue 711, India-Seminar, November 2018. 11. Amit Bindal and C Raj Kumar, Abolition of Death Penalty in India: Legal, Constitutional, and Human Rights Dimension, Confronting Capital Punishment in Asia: Human Rights, Politics and Public Opinion 129, 1st edition, OUP 2013.

45 12. Mrinal Satish, ‘The Law and Practice of Rape Adjudication in India’, In Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India, CUP, 2016. 13. Zachary Hoskins, Criminalization and the Collateral Consequences of Conviction, Criminal Law and Philosophy Journal, vol. 12, issue 4, December, 2018. 14. Douglas Husak, The Criminal Law as Last Resort, Oxford Journal of Legal Studies, vol. 24, issue 2, July 1, 2004. 15. Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ Vol. 116, Law Quarterly Review 225, 2000.

WEBSITES REFERRED

1. Abhishek Angad, Why most POCSO Cases result in acquittal?, The Indian Express (June 25, 2018) https://indianexpress.com/article/cities/delhi/pocso-a-case-study-delhi-high-court-child-sexual-abuse- cases-4912888/ 2. Timeline of Unnao Rape Case, Hindustan Times (Apr. 10, 2018) https://www.hindustantimes.com/india- news/all-that-has-happened-in-unnao-rape-case-a-timeline/story-mawXOV70RXnt74VNdiJ02I.html 3. Congress march highlights: Party holds nationwide protest, seeks justice in Kathua, Unnao rape cases, Firstpost (Apr 13, 2018) https://www.firstpost.com/india/congress-march-live-updates-party-holds- nationwide-protest-seeks-justice-in-kathua-unnao-rape-cases-4430627.html3 4. Massive Protests in Delhi, Chandigarh Against Kathua & Unnao Rapes’, The Quint https://www.thequint.com/news/india/mumbai-protests-against-kathua-unnao-rapes 5. Haryana Assembly okays death penalty for child rape, The Hindu (Mar. 16, 2018) https://www.thehindu.com/news/national/other-states/haryana-assembly-okays-death-penalty-for-child- rape/article23268202.ece 6. President gives assent to the Criminal Law (Amendment) Act, Economic Times (Aug. 12, 2018) https://economictimes.indiatimes.com/news/politics-and-nation/president-gives-assent-to-the-criminal- law-amendment-act/articleshow/65374343.cms?from=mdr 7. Burkina Faso: Abolition of death penalty a hard-won victory, Amnesty International (June 1, 2018) https://www.amnesty.org/en/latest/news/2018/06/burkina-faso-abolition-of-death-penalty-a-hardwon- victory/ 8. SC Stays Execution Of Death Sentence In Rape-Cum-Murder Case, LiveLaw (Jan. 5, 2018) https://www.livelaw.in/sc-stays-execution-death-sentence-rape-cum-murder-case-read-order/ 9. SC stays death penalty of man in child rape and murder case, Business Insider (Mar. 18, 2019) https://www.business-standard.com/article/news-ani/sc-stays-death-penalty-of-man-in-child-rape-and- murder-case-119031800347_1.html 10. Union Cabinet approves stringent anti-piracy law, Economic Times (Aug. 1, 2018, https://economictimes.indiatimes.com/news/defence/union-cabinet-approves-stringent-anti-piracy- law/articleshow/65233755.cms?from=mdr

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