The grim truth of our human race is that ‘we’ are capable of being a ‘monster’. History is our evidence from Vlad The Impaler to Hitler to Osama Bin Laden, ‘we’ have seen quite the ‘monsters’. So, if ‘we’ do the same thing to these ‘monsters’, would it serve justice to the human race?
India follows the retributive theory of justice, which basically means providing rehabilitation and a fresh start to the offenders. But there has always been a question that has hindered the lawmakers around the world — what should be done to the offenders whose crimes are against humanity, should they be given a chance to a fresh start or not?
Crimes against children are considered to be one of the most heinous crimes of our society. As historian Romila Thapar remarks: Within the Indian subcontinent there have been infinite variations on the status of women diverging, according to cultural milieu, family structure, class, caste, property rights, and morals (Thappar, 1975). There had been various variations in the status of the women but they are always considered to be the weaker section of the society. In the 21st century, women and girls are still the most vulnerable part of society. Sexual offenses in India against women and girls occupy a significant place and out of all the crimes, the one which shocks and shakes the conscience of the country is rape. The statistics are grim and shocking. In 2016, Child Protective Services agencies substantiated, or found strong evidence that 57.329 children were victims of sexual abuse (United States Department of Health and Human Services, 2018). One in 9 girls and One in 53 boys under the age of 18 experience sexual abuse or assault at the hands of an adult (Finkelhor, 2014). There has been a huge outcry regarding the punishment that should be given to these ‘monsters’ that live amongst us. Every time there is a horrific and horrendous sexual crime against a minor, there is a clamor for prescribing the death penalty for such offenses. Recently, the Indian government passed an ordinance on April 21, 2018, allowing the death penalty for child rape under the age of 12.
How is the death penalty used in India and its other counterparts?
During the British Raj, India introduced death as a form of punishment under the Indian Penal Code, 1860 for capital crimes. According to the Dictionary, the capital offense is defined as a crime, such as murder or betrayal of one’s country that is treated so seriously that death may be considered an appropriate punishment (“Capital Offense”). Death Penalty, also known as capital punishment is a legal penalty in India.
First hanging in India happened on the 15th November 1949 when the father of the nation was shot dead by Nathuram Godse and Narayan Apte. In India, the death penalty has been carried out five times and a total of 26 executions has taken place since 1991. After the judgment was given in the Mithu v. State of Punjab, Section 303 was repealed which granted for the death penalty for convicts who were serving life in imprisonment. As there were no proper records during the time of Independence, official government statistics claim that there were only fifty-two executions since 1949. That being said, according to research done by the People’s Union for Civil Liberties show a totally different number of executions that have taken place since Independence.
The world is steadily moving away from capital punishment. According to BBC News, 170 states have abolished the death penalty or introducing some sort of memorandum and according to the Amnesty International in 2017, 142 countries have abolished the death penalty in law or practice. The UN Secretary General António Guterres stated that the World Day against the Death Penalty by praising the efforts of countries to end the practice (“Death penalty: How many countries still have it?” 2018). India is among the few countries with the United States of America who still legally have not fully abolished the death penalty.
What are the Current Governmental Mechanisms to Protect Children against Child Sexual Abuse?
According to the United Nations Convention on the Rights of the Child defines a child as “a human being below the age of 18 years unless, under the law applicable to the child, the majority is attained earlier” (“№27531. Convention on the rights of the Child. Adopted by the General Assembly of the United Nations on 20 November 1989”, 1999). In India, there has been a constant debate going on defining what age a person is or ceases to be a child. According to the Census of India, children are considered to be persons below the age of 14 and according to the Indian Penal Code, a girl must be of at least sixteen years in order to give sexual consent, unless she is married, in which case the prescribed age is no less than fifteen. With regard to protection against kidnapping, abduction and related offenses the given age is sixteen for boys and eighteen for girls. India is the second most populous country in the world with 1.21 billion people out of which an astounding 39% are children and they are targetted to a ton of criminal offenses including child sexual abuse. In 1999, WHO Consultation on Child Abuse Prevention adopted the definition of child sexual abuse which stated that “Child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society. Child sexual abuse is evidenced by this activity between a child and an adult or another child who by age or development is in a relationship of responsibility, trust or power, the activity is intended to gratify or satisfy the needs of the other person” (Child Sexual Abuse). That being said, the authorities are trying to find different ways to curb the offenses and protect the children. In 2012, the Parliament of India passed the ‘Protection of Children Against Sexual Offences Bill, 2011”. One of the most well-known acts in the child protection sector in India is The Protection of Children from Sexual Offences (POCSO) Act, 2012. It was enacted to provide a robust legal framework for the protection of children from offenses of sexual assault, sexual harassment, and pornography while safeguarding the interest of the child at every stage of the judicial process. The framing of the act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offenses through designated Special Courts (“Child sexual abuse laws in India”, 2019). We also have the National Commission for Protection of Child Rights (NCPCR) which was set up in March 2007 under the Commissions for Protection of Child Rights (CPCR) Act, 2005, an Act of Parliament (December 2005). National Commission for Protection of Child Rights (NCPCR) is a statutory body under the Commissions for Protection of Child Rights (CPCR) Act, 2005 under the administrative control of the Ministry of Women & Child Development, Government of India. Also in 2013, UNICEF launched its #ENDviolence. The initiative builds on a growing public consensus that violence against children can no longer be tolerated and that it can only be stopped by the collective efforts of ordinary citizens, policymakers, governments and international stakeholders (Bissell, 2014).
Will the Death Penalty for Rape of Children help Reduce Crime?
The weekend of April 2018, was filled with joy, or sorrow, depending on who you talk to. In India’s ongoing project to fight child sexual assaults, the death penalty was approved as a punishment for rapists of girls below 12 years of age, following an order amending this existing criminal law. Many in the nation cheered while many others questioned how the death penalty would function as a deterrent. But has severe punishment dissuaded men and boys from violating women? That seems improbable. The reality is far from the expectations. In 2016, reported rape cases climbed 60 percent to about 40,000 across the country, of which 19,765 were child rape cases. The rate of conviction is about 25 percent stagnant. And given the persistent tabulation surrounding sex and sexual assault, the actual incidence of rape is likely to be even higher. Then there is the backlog of rape cases pending trial, which by the end of 2016 stands at over 133,000, up from about 100,000 in 2012, according to data from the National Crime Records Bureau (NCRB) of the country. Moreover, in India, the effectiveness of deterrence in reducing crime is highly doubtful, given that, for a variety of reasons, the certainty of punishment itself is very low. First, there is under-reporting of incidents of rape and sexual assault due to social stigma, deep-seated patriarchy and a long — drawn and often humiliating investigation and trial process. The impact of the death penalty ultimately will turn out to be ineffective in preventing the rape of children. But it confirms one fact: India’s sons will continue to misbehave (Borpujari, 2018).
So, the question remains — Is the Death Penalty for rapists of Children, Justified?
The problems associated with capital punishment are among the more serious ones in our system of justice (Powell, 1989). As you have read by now that crime against children has not decreased and the problem still exists. What this nation requires is Education for all and everywhere, this problem would cease to exist if people understand how the law works & what could be the consequences of one’s unlawful action. More than half of the nation is not educated, just literate. With education, the mind gets developed and helps in making better life choices. Thus, I can concur that rather than providing a deterrent like the death penalty which just ceases the life of a living being, we should try to find the root of the problem and solve it.
“Books serve to show a man that those original thoughts of his aren’t very new after all.”
― Abraham Lincoln
Material that was used in the making of this Article-
Borpujari, P. (2018, April 24). Will the Death Penalty Protect India’s Daughters From Rape?
Bissell, S. (2014). END violence against children — Action to prevent and respond to violence
against children. PsycEXTRA Dataset. doi:10.1037/e500792015–103
Capital offense. (n.d.). Retrieved from https://www.dictionary.com/browse/capital-offense
Child sexual abuse laws in India. (2019, March 23). Retrieved from
Child Sexual Abuse. World Health Organization. (n.d.). https://www.who.int/violence_injury_prevention/resources/publications/en/guidelines_chap7.pdf
№27531. Convention on the rights of the Child. Adopted by the General Assembly of the
United Nations on 20 November 1989. (1999). doi:10.18356/d5525c4d-en-fr
Powell, L. F. (1989). Capital Punishment. Harvard Law Review,102(5), 1035.
Team, R. C. (2018, October 14). Death penalty: How many countries still have it? Retrieved from https://www.bbc.com/news/world-45835584