Issues And Challenges In POCSO Act: Execution Of Chemical Castration As Punishment In India
To deal with child sexual abuse cases, the Government has brought in a
special law, namely, The Protection of Children from Sexual Offences (POCSO)
Act, 2012. The Act has come into force with effect from 14th November 2012 along
with the Rules framed thereunder. The POCSO Act, 2012 is a comprehensive law to
provide for the protection of children from the offences of sexual assault,
sexual harassment and pornography while safeguarding the interests of the child
at every stage of the judicial process by incorporating child-friendly
mechanisms for reporting, recording of evidence, investigation and speedy trial
of offences through designated Special Courts.
The said Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be "aggravated" under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher, or doctor. People who traffick children for sexual purposes are also punishable under the provisions relating to abetment in the said Act.
The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and a fine. In keeping with the best international child protection standards, the said Act also provides for mandatory reporting of sexual offences. Despite all these safeguards and protective measures against sexual offences and sexual offenders, there are some issues, challenges and some lacunae in the legislation.
At present, the amendment act of POCSO Act, 2019 has also been implemented with stringent and extensive punishments to combat sexual offences against innocent children. In this article, I am going to throw light on the issues and challenges faced by society despite the implementation of the POCSO Act, 2012 and 2019. Also, I like to stress the importance of stringent punishment for habitual sexual offenders so that sexual offences will decrease rapidly in our society.
In this article, I am suggesting implementing the execution of the chemical castration to the habitual sexual offenders so that the offence should not be repeated and the sexually related crimes would be decreased rapidly in our country in a prospective manner.
Introduction:
The Protection of Children from Sexual Offences Act, 2012 (POCSO) is a legislation that was brought out as an answer to a dire call from a society that was reeling from an ever-increasing rate of heinous crimes against young children. The very future of the country was being choked in fear of such crimes, where a child, at a time when they should be learning and playing, are reduced to mere objects for satisfying the lust of perverted minds.
According to the Crime in India report published annually by the National Crime Records Bureau, Ministry of Home Affairs, Government of India, 5,368 cases of child rape were registered in 2009; 5,484 cases in 2010; and 7,112 in 2011, showing a consistent increase in the incidents of sexual crimes against children, exposing the need for distinctive legislation on sexual offences against children in India.
The Protection of Children from Sexual Offences (POCSO) Act enacted in 2012 stands out as comprehensive legislation against sexual crimes against children in India. It has increased the scope of reporting sexual crimes against children in India by expanding the definition of sexual crimes to include penetrative sexual assault, non-penetrative sexual assault, sexual harassment and pornography.
The act "deems a sexual assault to be "aggravated" under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher or doctor". Unlike the Indian Penal Code, a victim under the POCSO act can be any child irrespective of gender.
To prevent the further victimisation of the survivors through the gruelling justice-seeking process, the act also focuses on safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, investigations and speedy trial of offences through designated Special Courts. The punishment is prescribed as per the gravity of the offence with a maximum term of rigorous imprisonment for life, and a fine.
The task of overseeing the effective implementation of the POCSO Act has been assigned to the National Commission for the Protection of Child Rights established in 2007. The POCSO Act is an extremely important step towards controlling the menace of sexual crimes against children in the country. Despite the POCSO Act, 2012 and 2019 legislations, there are some issues and challenges in the POCSO Act.
Absence of exclusive 'Special' Courts and Special Public Prosecutors. Procedural Lapses: Children are often exposed to the accused, and aggressive questioning of survivors persists, resulting in survivors frequently turning hostile, more so in the absence of any witness protection systems. Lapses in the Investigation: Failure on the part of the police to collect relevant evidence, take statements of relevant witnesses, or collect forensic samples correctly are some of the major lapses that affect convictions.
Absence of Victim Protection and Support: A survey of 100 survivors of sexual assault by the Delhi Commission for Protection of Child Rights revealed that one in three children who faced sexual abuse dropped out of school. Further, only 15% of the survivors received compensation. The introduction of the death penalty for child sexual assault shifts attention away from the poor state of the implementation of the POCSO Act.
The convictions for child sexual assault have steadily declined in the last 10 years despite the enactment of the POCSO Act, which provides for child-friendly procedures. From a conviction rate of 32.6% in 2006 for child sexual assault, it is down to 28.2% in 2016 - while the pendency has climbed from 81.3% in 2006 to 89.6% in 2016. On July 12, 2019, the Supreme Court has taken suo-moto cognizance of the high pendency of POCSO cases, as data revealed that, "from January 1st to June 30th of this year, 24,212 FIRs had been filed across India.
Out of over 24,000 cases, 11,981 are still being investigated, while police have filed charge sheets in 12,231 cases. Trials commenced in 6,449 cases only, it said, adding that they are yet to commence in 4,871 cases. Till now, trial courts have decided only 911 cases, about 4 per cent of the total cases registered."
POCSO Act, 2012: Act Number: 32
Enactment Date: 2012-06-19
Act Year: 2012
Short Title: The Protection of Children from Sexual Offences Act, 2012
Long Title: An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for the trial of such offences and for matters connected therewith or incidental thereto.
Ministry: Ministry of Women and Child Development
Enforcement Date: 14-11-2012
Notification: 14th November 2012, vide notification No.S.O. 2705 (E), dated 9th November 2012, see Gazette of India Extraordinary, Part II, sec. 3(ii).
The Protection of Children from Sexual Offences Act has been promulgated by the Parliament of India in the year 2012. An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for the trial of such offences and for matters connected therewith or incidental thereto. This statute has 9 Chapters and 46 Sections.
The Chapter includes Sexual Offences Against Children, Using Child For Pornographic Purposes And Punishment Therefor, Procedure for Reporting of Cases, Procedure and Powers of Special Courts and Recording of Evidence, this act also contains miscellaneous provisions like Right of child to take the assistance of legal practitioner, Alternative punishment, Monitoring of implementation of Act, Power to make rules.
Salient features of the Act and its amendment:
The Act is gender-neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.
The Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be "aggravated" under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher, or doctor.
People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and a fine.
It defines "child pornography" as any visual depiction of sexually explicit conduct involving a child which includes a photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child.
Punishments for offences covered in the Act:
Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography - Fine of not less than Rs 5,000; in the event of second or a subsequent offence, fine not less than Rs 10,000.
Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description: Up to three years of imprisonment, or with fine, or both.
Any person, who stores or possesses pornographic material in any form involving a child for the commercial purpose shall be punished on the first conviction: Not less than three years of imprisonment which may extend to five years; or with fine or with both. Second or subsequent conviction: not less than five years and up to seven years and also fine.
Provisions related to conducting the trial of reported offences:
The Act provides for the establishment of Special Courts for the trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process.
The Act incorporates child-friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:
Key Amendments
Penetrative Sexual Assault:
The Bill increases the minimum punishment from seven years to ten years. It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine.
Aggravated Penetrative Sexual Assault:
The Act defines certain actions as "aggravated penetrative sexual assault". The Bill adds two more grounds to the definition of aggravated penetrative sexual assault.
These include:
Aggravated Sexual Assault:
"Aggravated sexual assault" includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child, among others. The Bill adds two more offences to the definition of aggravated sexual assault.
These include:
Pornographic Purposes:
Under the Act, a person is guilty of using a child for pornographic purposes if he uses a child in any form of media for the purpose of sexual gratification. The Act also penalises persons who use children for pornographic purposes resulting in sexual assault. The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photographs, video, digital or computer-generated images indistinguishable from an actual child.
Storage of Pornographic Material:
The Act penalises storage of pornographic material for commercial purposes with a punishment of up to three years, a fine, or both. In addition, the Bill adds two other offences for the storage of pornographic material involving children. These include:
These laws prohibit the class but allowed a reasonable classification of people or things. The classic communications test set forth in the case of Anwar Ali Sarkar said;
In order to pass the test of classification allowed two conditions must be fulfilled:
That classification should be established in differentia understood that distinguish people who are grouped together from others left the group, and
Its differentia must have a rational relationship with the object sought to be achieved by the Act. The differentia is the basis of classification and the object of the Act is different what is required is that there should be a relationship between them.
This test set by the Hon'ble Supreme Court in the case of Anwar Ali Sarkar has affirmed and applied in subsequent cases dealing with the issue of infringement of Article 14 by the court. For example, in D. S. Nakara v. Union of India, the classification made between pensioners who retired before a certain date and those who retire after that date was held unreasonable by the Court and held arbitrarily. As such, it is a violation of Article 14 and as a result, Regulations 34 Central Service rules aside.
Before the law was passed in 2019, punishment for penetrative sexual assault as per POCSO Act 2012 was of seven years in prison to life and also fine. The Act of 2019 increased the minimum term of the sentence 'seven' to 'ten' years by amending Article 4(1). The Act also inserted two sub-clauses to Section 4: Section 4(2) and 4(3).
Now, a new sub-clause (2) inserted by Act penalties for offenders who commit penetrative sexual assault on a child under sixteen. It is important to note that the minimum prison term (twenty years) has also increased in this new article is inserted. By incorporating sub-paragraph (2), the legislature makes the classification of a child under sixteen years old and a boy who are above the age of sixteen but under eighteen years of age. However, the legislature has defined "child" as "any person under the age of eighteen years, for the purposes of this Act. Thus, the above classification should be a reasonable classification because it was done in the same group, namely, 'children'.
No differentia is understood in this classification. The differentia in this classification is not clear, because there is uncertainty in determining the age of maturity factor. For example, A child of seventeen years may have the same maturity as one of fifteen years and in some cases, it may be otherwise. At times, some may reach maturity at the age of nineteen only, while some may reach maturity at the age of seventeen itself. A child of fifteen years may appear like a nineteen. It should be noted that the differentia must have a rational relationship with the object sought to be achieved by the Act.
The purpose of this Act is to protect children from crimes of sexual violence, sexual harassment and pornography and provides for the establishment of the Special Court for the trial of the offence and for matters connected therewith or incidental extra. Therefore, the main purpose of laws that protect children, this differentia has absolutely no nexus to the object sought to be achieved by the Act.
This classification provides a way for the thought that raping a child under sixteen years of an offence graver, while on the other side of raping a child sixteen or seventeen years old, who may have the same maturity as several children belonging to another class is not considered a violation graver, This classification thus, is unreasonable and therefore violative of Article 14.
Even Section 354A of the Indian Penal Code, which describes sexual harassment does not use the term "sexual intent", because not a mandatory requirement for sexual harassment. Thus, the term sexual intention of creating a loophole in Section 11 of the Act, will support the offender.
This new insertion of words leads to the misconception that the latter section does not provide for life imprisonment for the rest of the people's natural life. It is not necessary to be mentioned in the provisions that life imprisonment means imprisonment for the rest of the natural life of the man, because he considered that the existing provisions did not mention the more so, does not mean the same.
Article 53 of the Indian Penal Code provides for prison life. Prison life imprisonment means walking for the remaining period of the convict's natural life unless alleviated or transmitted by the authorities. "Imprisonment life is not the same as 14 years or 20 years in prison. There is no provision either in the IPC or the Code of Criminal Procedure whereby life imprisonment could be treated as 14 or 20 years without remission by the appropriate government official. He can, however, be released if the appropriate government passed a separate order handed portion, not over punishment.
While the Court in India has insisted on the question that a prison term for life means imprisonment for the remainder of natural life, to include a provision such as Section 4 (2) 6 and 6 (1) bearing words like, very much tend to ignore life imprisonment. It also lost a deterrent since the perpetrators punished under Section 14 (2) and 14 (3) will use this as a loophole and escape from their original sentence of life in prison.
Also, one more important point to note in this regard is that, is it possible to calculate the term "One and a half of imprisonment for life"? 18 Section 10 of the Act provides for punishment for an attempt to commit a crime. It provides that the maximum penalty will be a term that may include one half of life imprisonment. Maybe 20 or 30 years or a term that is not fixed.
Not fixing the maximum term of punishment, he left for the judges to decide it. The term "one and a half of imprisonment for life 'is uncertain. This led to many interpretations possible to fix a maximum term of punishment and hence the provisions are clearly and therefore violative of Article 14 of the constitution.
Corresponding crime reports National Crime Records Bureau (NCRB) in India, in 2016, 94.6% of the cases registered under rape with penetrative sexual violence against children committed by people known to the victim. Viewed in a realistic perspective, there is a very remote possibility in cases where a child is sexually abused by family members or relatives, they will come forward and register a complaint, knowing that the complaint will cause the death of the person concerned.
Thus, there is a high possibility that a smaller number of cases are reported. The introduction of the death penalty may also increase the likelihood of rape and murder cases of a high since the disclosure of sexual acts with the survivors can lead to the death penalty. Furthermore, as stated in the 2015 report of the Law Commission on the death penalty, there is no empirical evidence that suggests that the death penalty has a deterrent effect over and above life imprisonment.
Accordingly, when a minor is accused of committing a sexual offence, the Court will look at questions as to whether he should be treated under the Juvenile Justice Act or POCSO Act. This is done on the basis of questioning the age of the accused, but the attacks do not ever consider. As a result, minors who commit heinous crimes are not punished for the severity of the offences they did.
In the famous case of Kathua Rape, in which an innocent 8-year-old girl was kidnapped and raped by eight accused, the six of them were found guilty and one was acquitted on the benefit of the doubt and the other defendants who are minors tried under the courts. It is pertinent to note that, the researchers state that on 10th Jan she was kidnapped by a teenager and later on the same day, he was taken to the temple and raped by him, and it was also found that the teen had been strangled and destroyed the face of the deceased with a stone that causes Dead.
The most important part is that the prime accused juvenile defendant who has not been found guilty of such a heinous crime, "half justice" only given to families of the deceased. But until now, the rest of the accused have not been hanged and the judicial process drags, with various petitions filed by the accused. Even in Nirbhaya Case, a teenager who was the main reason for the death of the deceased, as it has been hit with an iron rod, is treated as a juvenile and given a prison sentence of three years, now he works as a cook in several parts of the southern nation.
Although it is an indisputable fact that the teen action has also led to the rape and death of the deceased, they are protected by a shield that he was a teenager. This shield should be split and each defendant may be a minor who has committed any sexual offence, should be treated as an adult, for justice to prevail. section 34 of the Act, shall be such that when there is a minor who a defendant who has committed a heinous crime, he should be treated as an adult based on the actions and must be given extreme punishment.
Aspects treat the defendant as a minor under the Juvenile Justice Act, because of their age can not be accepted. This fallacy under Article 34 was amended such that it helps in achieving the object code and to ensure that justice is given to the right people.
Germany is infamous for legalising castration as a punishment for rape throughout the country, and a few states in the United States (like California and Florida) have legalised the same. But all governments continue to use the punishment sparingly. Freud based his entire theory of socialisation on the sexual urges felt by humans.
Although the theory has been criticized on many grounds, it proves one important point. The mere fact that without deeper research, a large majority believed in this shows how much importance a layman gives to sex. But another thing that is highly frowned upon by society is rape. Rape is a crime that violates a woman's body, causes immense psychological trauma, shows contempt for the entire womanhood and is simply inhuman. No matter how disgusting forcibly castrating an individual may sound to a layman, rape definitely is worse.
That's where LHRH agonists come in. They work by stimulating the production of luteinizing hormone (LH). That's why when you first take them, LHRH agonists cause testosterone levels to rise. This effect only lasts a few weeks, though. And taking anti-androgens such as bicalutamide for a few weeks can relieve this concern.
Unfortunately, this method of punishment had been clearly disapproved by the lawmakers to have made this as a penal provision as an alternative for the penal laws existing. Chemical castration is an alternative punishment for the rapists and would undoubtedly if implemented would mark a reduction in the rising rates of rapes in the country. This suggestive measure would definitely do justice to the victims who have been brutally raped.
The incorporation of chemical castration as an alternative punishment was proposed by the Justice Verma Committee after the 2012 Delhi Gang rape. Woefully, the wrongdoers' rights were given more priority than that of the sufferers and survivors leading to the rejection of the proposal. In comparison with other nations, chemical castration is one of the effective measures taken to punish the wrongdoers.
This raises a question, as to why India should not adopt the same. There were supporting opinions from the National Commission for women. They opined that the sexual offenders may be chemically castrated where "they can stay alive with a vital part of their body dead". Castration is being looked into as a retributive kind of punishment by the lawmakers of the country. Chemical castration is a process wherein it reduces the sex drive or sexual urge of people when it is administered medically. The process of chemical castration "reduces the production and effects of testosterone thus diminishing the compulsive sexual fantasy.
Formerly insistent and commanding urges can be voluntarily controlled. "Castrate the rapists." Since the horrific Delhi gang rape of December 16, 2012, this call for retributive justice has been heard repeatedly at protest marches and political rallies, an expression of public outrage in response to increasing reports of sexual violence across India. Lawyers, activists and lawmakers have, so far, brushed the idea aside.
In 2013, while making recommendations for more stringent rape laws, the Justice Verma committee deemed the notion of castration as punishment to be a violation of human rights and an ineffective solution to the "social foundations of rape". But on October 16, the Madras High Court became the first constitutional body to formally recommend castration as a means of punishing people who rape children.
While hearing the case of British national-facing paedophilia charges in Tamil Nadu, Justice N Kirubakaran passed an order directing the central government to consider castration as an "additional punishment" for child rapists "in view of abnormal increase in child abuse cases". The Madras High Court order acknowledges that its recommendation of castration is likely to be seen as "barbaric", "retrograde" and "inhuman" by "people who claim to be human rights activists", but asks activists to focus more on the suffering of abuse victims than the rights of sexual offenders.
The SCWLA was of the opinion that provision of an additional punishment of Chemical Castration for the Rapists of the children aged below 12 years of age will be a deterrent factor. The provision for implementing Chemical Castration as an additional/alternative punishment became the topic of debate when Additional Sessions Judge of Delhi District Court Dr Kamini Lau propounded in the judgement of State v. Dinesh Yadav the need for Chemical Castration as a form of punishment for the deterrence of such horrific offences. The accused was convicted for raping his minor step-daughter aged 15 years over the period of 4 years.
The Judge went on to state that the strictest of existing punishments in the law has failed to provide a deterrent effect on rapes and with the existing set of punishments the administration is struggling to tackle this menace. She suggested an alternative form of punishment in the for-Child Rapists in the form of Chemical Castration. "Chemical Castration does not actually castrate the person, nor is it a form of sterilization and for this reason, the term "Chemical Castration" has been called a misnomer.
Castration has, from time to time, been used as an instrument of public and/or judicial policy despite concerns over human rights and possible side effects."Following that in 2015, Justice N. Kirubkaran in the Madras High Court in a judgement also called for the introduction of Chemical Castration as the form of punishment for Rape of minors and it will fetch the magical results in dipping down of the Rapes and sexual violence against minors.
These instances have already formed a strong basis for the introduction of Chemical Castration as a punishment for the Rapists. The Judiciary at different levels in their judgements has recommended the lawmakers and the stakeholders to ponder upon the same.
Following such enactment, 9 other states in the United States passed similar laws, Louisiana allowed the Courts to sentence the convicts of Rape to Chemical Castration, while in Iowa, California and Florida, the same can be done for serious sex offences. Along with the US, a wide number of European Union nations such as Poland, Germany, Estonia, Sweden, Finland, Denmark, Norway, Lithuania, Hungary also allowed Chemical Castration in their laws in distinct ways.
While, other countries such as Argentina, Indonesia, Australia, Israel and New Zealand also exhibit Chemical Castration in their laws. The Czech Republic has been criticised by the Human Right Organizations for administering Surgical Castration along with Chemical Castration in their laws and practice but it is still continued. Poland has made Chemical Castration compulsory for Sex offenders in 2010. Indonesia mandated the compulsory Chemical Castration for convicts of Child Sexual Violence in 2016. It suggests that wide jurisdictions in the world have adopted Chemical Castration as a punishment for Rape and Sexual violence cutting across the diversities in terms of region, advancement, demographics etc.
Proponents For Chemical Castration:
The proponents of human castration as a legal punishment for heinous rapes interpret Article 21 in a different way from what Indian jurists are doing right now. They claim that the "procedure established by law" can include castration. The act of raping and violating the physical space of a woman (children, in many cases) is considered so inhuman an act that human rights are not considered by society.
Castration, both physical and chemical, is a process that would decrease the testosterone content, and hence, the sexual urges felt by the rapists. Studies in the United States have shown that in some states where chemical castration is legalised, castrated offenders show extremely low rates of showing sexually perverse tendencies.
Larry Don McQuay, a convicted sex offender, in Washington Monthly (1994) said "What is barbaric is what I have done to so many children; refusing to castrate me is barbaric to the children I will molest. [Chemical castration] is considered 'cruel and unusual punishment.' But no punishment is crueller or more unusual than the pain I have caused my victims. Voluntary castration is not unconstitutional, but no state allows it". The argument of Larry Don McQuay is echoed by a few sex offenders who volunteer for castration instead of imprisonment.
Opponents For Chemical Castration:
The opponents of castration as a legal punishment interpret involuntary castration as a violation of Article 21. Castration deprives the man, not just of control over his sex life, but also from his dignity and respect. Involuntary castration is a violation of the right to privacy to the physical space of the patient, our Constitution, human rights and so on. Indian Constitution, common law principles and almost every known law state that the punishment should be proportional to the crime or wrong committed.
Does the debate arise whether castration is proportional to the crime? Opponents argue that it is not, and it is not even addressing the root cause of rape. Most rapes do not happen due to lust or sexual desires. Rape is also an expression of power and domination. Rape shows male chauvinism in its extreme sense. It is used as a tool for humiliating the victim. Does castration affect the misogyny deeply rooted in the mind of the rapist?
No, it does not. Further, it is possible for a castrated man to regain the use of their sexual organ through intake of testosterone as steroids. The effect of castration varies from individual to individual. A lot of individuals are known to undertake regular sexual activities after the operation, even without stimulants. This defeats the purpose of castration in the first place. Ohio, California, Illinois and Arkansas have legalised voluntary castration. But why would a culprit want to opt for the procedure?
One answer is to wash away their guilt. Larry Don McQuay is one of those. Another reason is that castration is an easy way out of rigorous imprisonment. These states give castration as an option against rigorous incarceration. In such cases, the purpose of justice is defeated.
Conclusion And Suggestions:
After analyzing the Indian Criminal law, judicial decisions and the laws of the other countries, it could be concluded that the present law has many issues and challenges in combating sexual offences like molestation, pornography and rape. The guidelines laid down are not strictly implemented by the police, doctors and the courts which seriously hamper justice for the sexual abuse victims, especially innocent children.
It should be the prime duty of the researcher to put efforts in law reforms initiatives and their strict implementation for the best interest and the welfare of the sexual abuse child victims. The Government should also incorporate and introduce some of the principles from the laws of the other countries which are more child friendly and march towards the advancement of the criminal justice administration of our country. "A crime should always be treated as a crime and not as a mistake".
Despite the stringent punishments as amended in the POCSO Act, 2019, the crime rate is on an increasing scale which clearly shows that the poor implementation of the legislation has been done. The need of the hour is to eradicate the sexual crimes in our country which in turn has forced the legislators and the researchers to focus on the recidivism of the sexual offences and the suggestion of the alternative stringent punishment for curbing the sexual offences in our country.
It is of high recommendation that India should also adopt effective measures like other developed countries in implementing stricter laws and stringent punishments to prevent sexual crimes. Many sociologists and social workers have opposed the execution of chemical castration stating that it violates human rights and Article 21 of the Indian Constitution, 1950. To my knowledge and point of view, I would suggest chemical castration for habitual sexual offenders as the stringent and preventive punishment for combating sexual crimes in India. When we consider Article 21 of the Indian Constitution, "No person shall be deprived of his life or personal liberty except according to a procedure established by law".
In Article 21, the exception of procedure established by law clearly explains that every person is bound to the law and punishable by law if anybody commits an offence or act prohibited by law. To my concern, the pain of the sexual abuse victims is greater than the pain of the sexual offenders. Even though many sociologists and human rights commissions are opposing the execution of capital punishment or the death penalty in India, still now the death penalty is rendered to convicted persons in India.
Keeping in mind all the above considerations, I would suggest the execution of chemical castration as an alternative and stringent punishment for habitual sexual offenders in India. In addition, setting up of welfare centres will stress the importance of the responsibility of overseeing that complete justice is done to the child and the child is not further victimized by the judicial process. The Government should lay down some rules and measures to protect the interest of the vulnerable witnesses and should ensure the effective working of the child welfare institutions to protect the best interest of the sexual abuse child victims.
References:
The said Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be "aggravated" under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher, or doctor. People who traffick children for sexual purposes are also punishable under the provisions relating to abetment in the said Act.
The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and a fine. In keeping with the best international child protection standards, the said Act also provides for mandatory reporting of sexual offences. Despite all these safeguards and protective measures against sexual offences and sexual offenders, there are some issues, challenges and some lacunae in the legislation.
At present, the amendment act of POCSO Act, 2019 has also been implemented with stringent and extensive punishments to combat sexual offences against innocent children. In this article, I am going to throw light on the issues and challenges faced by society despite the implementation of the POCSO Act, 2012 and 2019. Also, I like to stress the importance of stringent punishment for habitual sexual offenders so that sexual offences will decrease rapidly in our society.
In this article, I am suggesting implementing the execution of the chemical castration to the habitual sexual offenders so that the offence should not be repeated and the sexually related crimes would be decreased rapidly in our country in a prospective manner.
Introduction:
The Protection of Children from Sexual Offences Act, 2012 (POCSO) is a legislation that was brought out as an answer to a dire call from a society that was reeling from an ever-increasing rate of heinous crimes against young children. The very future of the country was being choked in fear of such crimes, where a child, at a time when they should be learning and playing, are reduced to mere objects for satisfying the lust of perverted minds.
According to the Crime in India report published annually by the National Crime Records Bureau, Ministry of Home Affairs, Government of India, 5,368 cases of child rape were registered in 2009; 5,484 cases in 2010; and 7,112 in 2011, showing a consistent increase in the incidents of sexual crimes against children, exposing the need for distinctive legislation on sexual offences against children in India.
The Protection of Children from Sexual Offences (POCSO) Act enacted in 2012 stands out as comprehensive legislation against sexual crimes against children in India. It has increased the scope of reporting sexual crimes against children in India by expanding the definition of sexual crimes to include penetrative sexual assault, non-penetrative sexual assault, sexual harassment and pornography.
The act "deems a sexual assault to be "aggravated" under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher or doctor". Unlike the Indian Penal Code, a victim under the POCSO act can be any child irrespective of gender.
To prevent the further victimisation of the survivors through the gruelling justice-seeking process, the act also focuses on safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, investigations and speedy trial of offences through designated Special Courts. The punishment is prescribed as per the gravity of the offence with a maximum term of rigorous imprisonment for life, and a fine.
The task of overseeing the effective implementation of the POCSO Act has been assigned to the National Commission for the Protection of Child Rights established in 2007. The POCSO Act is an extremely important step towards controlling the menace of sexual crimes against children in the country. Despite the POCSO Act, 2012 and 2019 legislations, there are some issues and challenges in the POCSO Act.
Absence of exclusive 'Special' Courts and Special Public Prosecutors. Procedural Lapses: Children are often exposed to the accused, and aggressive questioning of survivors persists, resulting in survivors frequently turning hostile, more so in the absence of any witness protection systems. Lapses in the Investigation: Failure on the part of the police to collect relevant evidence, take statements of relevant witnesses, or collect forensic samples correctly are some of the major lapses that affect convictions.
Absence of Victim Protection and Support: A survey of 100 survivors of sexual assault by the Delhi Commission for Protection of Child Rights revealed that one in three children who faced sexual abuse dropped out of school. Further, only 15% of the survivors received compensation. The introduction of the death penalty for child sexual assault shifts attention away from the poor state of the implementation of the POCSO Act.
The convictions for child sexual assault have steadily declined in the last 10 years despite the enactment of the POCSO Act, which provides for child-friendly procedures. From a conviction rate of 32.6% in 2006 for child sexual assault, it is down to 28.2% in 2016 - while the pendency has climbed from 81.3% in 2006 to 89.6% in 2016. On July 12, 2019, the Supreme Court has taken suo-moto cognizance of the high pendency of POCSO cases, as data revealed that, "from January 1st to June 30th of this year, 24,212 FIRs had been filed across India.
Out of over 24,000 cases, 11,981 are still being investigated, while police have filed charge sheets in 12,231 cases. Trials commenced in 6,449 cases only, it said, adding that they are yet to commence in 4,871 cases. Till now, trial courts have decided only 911 cases, about 4 per cent of the total cases registered."
POCSO Act, 2012: Act Number: 32
Enactment Date: 2012-06-19
Act Year: 2012
Short Title: The Protection of Children from Sexual Offences Act, 2012
Long Title: An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for the trial of such offences and for matters connected therewith or incidental thereto.
Ministry: Ministry of Women and Child Development
Enforcement Date: 14-11-2012
Notification: 14th November 2012, vide notification No.S.O. 2705 (E), dated 9th November 2012, see Gazette of India Extraordinary, Part II, sec. 3(ii).
The Protection of Children from Sexual Offences Act has been promulgated by the Parliament of India in the year 2012. An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for the trial of such offences and for matters connected therewith or incidental thereto. This statute has 9 Chapters and 46 Sections.
The Chapter includes Sexual Offences Against Children, Using Child For Pornographic Purposes And Punishment Therefor, Procedure for Reporting of Cases, Procedure and Powers of Special Courts and Recording of Evidence, this act also contains miscellaneous provisions like Right of child to take the assistance of legal practitioner, Alternative punishment, Monitoring of implementation of Act, Power to make rules.
Salient features of the Act and its amendment:
The Act is gender-neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.
The Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be "aggravated" under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher, or doctor.
People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and a fine.
It defines "child pornography" as any visual depiction of sexually explicit conduct involving a child which includes a photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child.
Punishments for offences covered in the Act:
- Penetrative Sexual Assault (Section 3) on a child - Not less than ten years
which may extend to imprisonment for life, and fine (Section 4). Whoever commits
penetrative sexual assault on a child below sixteen years of age shall be
punished with imprisonment for a term which shall not be less than twenty years,
but which may extend to imprisonment for life, which shall mean imprisonment for
the remainder of the natural life of that person, and shall also be liable to
fine.
- Aggravated Penetrative Sexual Assault (Section 5) - Not less than twenty years which may extend to imprisonment for life, and fine (Section 6
- Sexual Assault (Section 7) i.e. sexual contact without penetration - Not less than three years which may extend to five years, and fine (Section 8)
- Aggravated Sexual Assault (Section 9) by a person in authority - Not less than five years which may extend to seven years, and fine (Section 10)
- Sexual Harassment of the Child (Section 11) - Three years and fine (Section 12
- Use of Child for Pornographic Purposes (Section 14) - Not less than five years and fine and in the event of subsequent conviction, seven years and fine Section 14 (1)
- Use of child for pornographic purposes resulting in penetrative sexual assault: Not less than 10 years (in case of a child below 16 years, not less than 20 years)
- Use of child for pornographic purposes resulting in aggravated penetrative sexual assault: Not less than 20 years and fine
- Use of child for pornographic purposes resulting in sexual assault: Not less than three years which may extend up to five years
- Use of child for pornographic purposes resulting in aggravated sexual assault: Not less than five years which may extend to seven years
Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography - Fine of not less than Rs 5,000; in the event of second or a subsequent offence, fine not less than Rs 10,000.
Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description: Up to three years of imprisonment, or with fine, or both.
Any person, who stores or possesses pornographic material in any form involving a child for the commercial purpose shall be punished on the first conviction: Not less than three years of imprisonment which may extend to five years; or with fine or with both. Second or subsequent conviction: not less than five years and up to seven years and also fine.
Provisions related to conducting the trial of reported offences:
The Act provides for the establishment of Special Courts for the trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process.
The Act incorporates child-friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:
- Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector
- No child is to be detained in the police station at night for any reason.
- Police officers to not be in uniform while recording the statement of the child.
- The statement of the child is to be recorded as spoken by the child.
- The assistance of an interpreter or translator or an expert as per the need of the child.
- The assistance of a special educator or any person familiar with the manner of communication of the child in case the child is disabled
- Medical examination of the child is to be conducted in the presence of the
parent of the child or any other person in whom the child has trust or
confidence.
In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. 13. Frequent breaks for the child during the trial. Child not to be called repeatedly to testify.
- No aggressive questioning or character assassination of the child in-camera trial of cases.
- The Act recognizes that the Intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized.
- The attempt to commit an offence under the Act has been made liable for punishment for up to half the punishment prescribed for the commission of the offence.
- The Act also provides for punishment for abetment of the offence, which is the
same as for the commission of the offence.
- The Act makes it mandatory to report the commission of an offence and also the
recording of complaint and failure to do so would make a person liable for
punishment of imprisonment for six months or/and with a fine. 18.1t is a
Punishable action if Police / Special Juvenile Police Unit fails to report a
commission of the offence under this act [Section- 2141)]
- For the more heinous offences of Penetrative Sexual Assault, Aggravated
Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the
burden of proof is shifted to the accused. This provision has been made keeping
in view the greater vulnerability and innocence of children.
- To prevent misuse of the law, punishment has been provided for making false complaints or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If a false complaint is made against a child, punishment is higher (one year) (Section 22).
- The media has been barred from disclosing the identity of the child without the
permission of the Special Court. The punishment for breaching this provision by
media may be from six months to one year (Section 23).
- For speedy trial, the Act provides for the evidence of the child to be recorded
within a period of 30 days. Also, the Special Court is to complete the trial
within a period of one year, as far as possible (Section 35).
- To provide for relief and rehabilitation of the child, as soon as the complaint
is made to the Special Juvenile Police Unit (SJPU) or local police, these will
make immediate arrangements to give the child, care and protection such as
admitting the child into a shelter home or to the nearest hospital within
twenty-four hours of the report. The SJPU or the local police are also required
to report the matter to the Child Welfare Committee within 24 hours of recording
the complaint, for long term rehabilitation of the child.
- The Act casts a duty on the Central and State Governments to spread awareness
through media including the television, radio and print media at regular
intervals to make the general public, children as well as their parents and
guardians aware of the provisions of this Act.
- Where an act or omission constitutes an offence punishable under this Act and
also under sections 166A, 354A, 354B, 354C, 354D, 370,370A, 375, 376, 376A,
376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860), then,
notwithstanding anything contained in any law for the time being in force, the
offender found guilty of such offence shall be liable to punishment under this
Act or under the Indian Penal Code as provides for punishment which is greater
in degree."
- The Provisions of this Act is in addition to and not in derogation of any other
provisions of any other Law. In case of any consistency, the provisions of this
act will have an overriding effect on any other provisions.
- The POCSO Act is only applicable to child survivors and adult offenders. In case
two children have sexual relations with each other, or in case a child
perpetrates a sexual offence on an adult, the Juvenile Justice (Care and
Protection of Children) Act, 2000, will apply.
The Pocso (Amendment ) Bill, 2019:
The Bill will amend the Protection of Children from Sexual Offences Act, 2012.Key Amendments
Penetrative Sexual Assault:
The Bill increases the minimum punishment from seven years to ten years. It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine.
Aggravated Penetrative Sexual Assault:
The Act defines certain actions as "aggravated penetrative sexual assault". The Bill adds two more grounds to the definition of aggravated penetrative sexual assault.
These include:
- assault resulting in the death of a child, and
- assault committed during a natural calamity, or in any similar situations of violence.
Aggravated Sexual Assault:
"Aggravated sexual assault" includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child, among others. The Bill adds two more offences to the definition of aggravated sexual assault.
These include:
- assault committed during a natural calamity, and
- administrating or helping in administering any hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity.
Pornographic Purposes:
Under the Act, a person is guilty of using a child for pornographic purposes if he uses a child in any form of media for the purpose of sexual gratification. The Act also penalises persons who use children for pornographic purposes resulting in sexual assault. The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photographs, video, digital or computer-generated images indistinguishable from an actual child.
Storage of Pornographic Material:
The Act penalises storage of pornographic material for commercial purposes with a punishment of up to three years, a fine, or both. In addition, the Bill adds two other offences for the storage of pornographic material involving children. These include:
- failing to destroy, or delete, or report pornographic material involving a child, and
- transmitting, displaying, distributing such material except for the purpose of reporting it.
Challenges In The Pocso Amendment Act, 2019:
The Reasonable Classification
Section 4 (2) of the POCSO Act, which was inserted by the POCSO Amendment Act of 2019 provides for classification which is unreasonable and violates Article 14 of the Constitution. Article 14 provides for "equal protection of the law".These laws prohibit the class but allowed a reasonable classification of people or things. The classic communications test set forth in the case of Anwar Ali Sarkar said;
In order to pass the test of classification allowed two conditions must be fulfilled:
That classification should be established in differentia understood that distinguish people who are grouped together from others left the group, and
Its differentia must have a rational relationship with the object sought to be achieved by the Act. The differentia is the basis of classification and the object of the Act is different what is required is that there should be a relationship between them.
This test set by the Hon'ble Supreme Court in the case of Anwar Ali Sarkar has affirmed and applied in subsequent cases dealing with the issue of infringement of Article 14 by the court. For example, in D. S. Nakara v. Union of India, the classification made between pensioners who retired before a certain date and those who retire after that date was held unreasonable by the Court and held arbitrarily. As such, it is a violation of Article 14 and as a result, Regulations 34 Central Service rules aside.
Before the law was passed in 2019, punishment for penetrative sexual assault as per POCSO Act 2012 was of seven years in prison to life and also fine. The Act of 2019 increased the minimum term of the sentence 'seven' to 'ten' years by amending Article 4(1). The Act also inserted two sub-clauses to Section 4: Section 4(2) and 4(3).
Now, a new sub-clause (2) inserted by Act penalties for offenders who commit penetrative sexual assault on a child under sixteen. It is important to note that the minimum prison term (twenty years) has also increased in this new article is inserted. By incorporating sub-paragraph (2), the legislature makes the classification of a child under sixteen years old and a boy who are above the age of sixteen but under eighteen years of age. However, the legislature has defined "child" as "any person under the age of eighteen years, for the purposes of this Act. Thus, the above classification should be a reasonable classification because it was done in the same group, namely, 'children'.
No differentia is understood in this classification. The differentia in this classification is not clear, because there is uncertainty in determining the age of maturity factor. For example, A child of seventeen years may have the same maturity as one of fifteen years and in some cases, it may be otherwise. At times, some may reach maturity at the age of nineteen only, while some may reach maturity at the age of seventeen itself. A child of fifteen years may appear like a nineteen. It should be noted that the differentia must have a rational relationship with the object sought to be achieved by the Act.
The purpose of this Act is to protect children from crimes of sexual violence, sexual harassment and pornography and provides for the establishment of the Special Court for the trial of the offence and for matters connected therewith or incidental extra. Therefore, the main purpose of laws that protect children, this differentia has absolutely no nexus to the object sought to be achieved by the Act.
This classification provides a way for the thought that raping a child under sixteen years of an offence graver, while on the other side of raping a child sixteen or seventeen years old, who may have the same maturity as several children belonging to another class is not considered a violation graver, This classification thus, is unreasonable and therefore violative of Article 14.
Sexual Harassment
Articles 11 and 12 of the POSCO act provide for provisions on sexual harassment and punishment for it. Section 11 states "Someone said to sexually abusing a child when the person with the intention of sexual �" In addition, it has been provided that any question involving "sexual intent" will be a question of fact. It is a fact ascertained that y is known that questions involving the intent are very difficult to prove before the court of law. Also, there arises the question of whether the perpetrator acted Conduct set forth in Article 11 without sexual intent, will not amount to sexual harassment?Even Section 354A of the Indian Penal Code, which describes sexual harassment does not use the term "sexual intent", because not a mandatory requirement for sexual harassment. Thus, the term sexual intention of creating a loophole in Section 11 of the Act, will support the offender.
Chaos Regarding The Understanding Of The Life Imprisonment:
The POCSO Act leaves some controversy and confusion regarding the understanding of the concept of life in prison. Section 4 (2) and 6 (1) is inserted by POCSO Act 2019 the use of the words "life imprisonment, which means prison for the rest of the natural life of man", not only use the term "life imprisonment" as in Section 4, 6, 14 (2), 14 (3) of the principal.This new insertion of words leads to the misconception that the latter section does not provide for life imprisonment for the rest of the people's natural life. It is not necessary to be mentioned in the provisions that life imprisonment means imprisonment for the rest of the natural life of the man, because he considered that the existing provisions did not mention the more so, does not mean the same.
Article 53 of the Indian Penal Code provides for prison life. Prison life imprisonment means walking for the remaining period of the convict's natural life unless alleviated or transmitted by the authorities. "Imprisonment life is not the same as 14 years or 20 years in prison. There is no provision either in the IPC or the Code of Criminal Procedure whereby life imprisonment could be treated as 14 or 20 years without remission by the appropriate government official. He can, however, be released if the appropriate government passed a separate order handed portion, not over punishment.
While the Court in India has insisted on the question that a prison term for life means imprisonment for the remainder of natural life, to include a provision such as Section 4 (2) 6 and 6 (1) bearing words like, very much tend to ignore life imprisonment. It also lost a deterrent since the perpetrators punished under Section 14 (2) and 14 (3) will use this as a loophole and escape from their original sentence of life in prison.
Also, one more important point to note in this regard is that, is it possible to calculate the term "One and a half of imprisonment for life"? 18 Section 10 of the Act provides for punishment for an attempt to commit a crime. It provides that the maximum penalty will be a term that may include one half of life imprisonment. Maybe 20 or 30 years or a term that is not fixed.
Not fixing the maximum term of punishment, he left for the judges to decide it. The term "one and a half of imprisonment for life 'is uncertain. This led to many interpretations possible to fix a maximum term of punishment and hence the provisions are clearly and therefore violative of Article 14 of the constitution.
Including Death Penalty As A Punishment:
The new changes are made in the Act POCSO Act of 2019 actually reduced the deterrent effect by including the death penalty as punishment. Section 6 (1), included replacing section 6 of the principal Act the death penalty as a maximum sentence for aggravated penetrative sexual assault. The introduction of the death penalty may be even more problematic in cases such as where the perpetrator is a family member of a victim or victim.Corresponding crime reports National Crime Records Bureau (NCRB) in India, in 2016, 94.6% of the cases registered under rape with penetrative sexual violence against children committed by people known to the victim. Viewed in a realistic perspective, there is a very remote possibility in cases where a child is sexually abused by family members or relatives, they will come forward and register a complaint, knowing that the complaint will cause the death of the person concerned.
Thus, there is a high possibility that a smaller number of cases are reported. The introduction of the death penalty may also increase the likelihood of rape and murder cases of a high since the disclosure of sexual acts with the survivors can lead to the death penalty. Furthermore, as stated in the 2015 report of the Law Commission on the death penalty, there is no empirical evidence that suggests that the death penalty has a deterrent effect over and above life imprisonment.
Treating A Minor Accused As A Juvenile
section 34 of the Amended act states that when an offence is committed by a child as specified in the terms, they should be treated under the Juvenile Justice Act, 2015, and corresponding questions with regard to the person's age is in dispute, shall be determined by the Special Court. (11) In carefully from the top, states that if there is a child less than 18 years of doing any offence specified under the Act should be addressed under the Act Juvenile and aspects of age if he is underage or not is a legal question to be answered by Special court.Accordingly, when a minor is accused of committing a sexual offence, the Court will look at questions as to whether he should be treated under the Juvenile Justice Act or POCSO Act. This is done on the basis of questioning the age of the accused, but the attacks do not ever consider. As a result, minors who commit heinous crimes are not punished for the severity of the offences they did.
In the famous case of Kathua Rape, in which an innocent 8-year-old girl was kidnapped and raped by eight accused, the six of them were found guilty and one was acquitted on the benefit of the doubt and the other defendants who are minors tried under the courts. It is pertinent to note that, the researchers state that on 10th Jan she was kidnapped by a teenager and later on the same day, he was taken to the temple and raped by him, and it was also found that the teen had been strangled and destroyed the face of the deceased with a stone that causes Dead.
The most important part is that the prime accused juvenile defendant who has not been found guilty of such a heinous crime, "half justice" only given to families of the deceased. But until now, the rest of the accused have not been hanged and the judicial process drags, with various petitions filed by the accused. Even in Nirbhaya Case, a teenager who was the main reason for the death of the deceased, as it has been hit with an iron rod, is treated as a juvenile and given a prison sentence of three years, now he works as a cook in several parts of the southern nation.
Although it is an indisputable fact that the teen action has also led to the rape and death of the deceased, they are protected by a shield that he was a teenager. This shield should be split and each defendant may be a minor who has committed any sexual offence, should be treated as an adult, for justice to prevail. section 34 of the Act, shall be such that when there is a minor who a defendant who has committed a heinous crime, he should be treated as an adult based on the actions and must be given extreme punishment.
Aspects treat the defendant as a minor under the Juvenile Justice Act, because of their age can not be accepted. This fallacy under Article 34 was amended such that it helps in achieving the object code and to ensure that justice is given to the right people.
Castration:
Castration is a medical process to decrease or finish the sex drive of an individual, irrespective of their gender. Castration was an extremely painful process before the advent of modern science and medicine. But now scientific advancement can dull the emotional and psychological pain that is felt by the process is done as a punishment. Castration is usually looked at in a very negative light in modern society.Germany is infamous for legalising castration as a punishment for rape throughout the country, and a few states in the United States (like California and Florida) have legalised the same. But all governments continue to use the punishment sparingly. Freud based his entire theory of socialisation on the sexual urges felt by humans.
Although the theory has been criticized on many grounds, it proves one important point. The mere fact that without deeper research, a large majority believed in this shows how much importance a layman gives to sex. But another thing that is highly frowned upon by society is rape. Rape is a crime that violates a woman's body, causes immense psychological trauma, shows contempt for the entire womanhood and is simply inhuman. No matter how disgusting forcibly castrating an individual may sound to a layman, rape definitely is worse.
Chemical Castration:
The purpose of chemical castration is to lower the levels of male hormones, or androgens. The main androgens are testosterone and dihydrotestosterone (DHT). According to a 2012 research review, about 90 to 95 per cent of androgens are made in your testicles. The rest come from your adrenal glands. Luteinizing hormone-releasing hormone (LHRH) comes from your pituitary gland. This hormone tells your testicles to make testosterone.That's where LHRH agonists come in. They work by stimulating the production of luteinizing hormone (LH). That's why when you first take them, LHRH agonists cause testosterone levels to rise. This effect only lasts a few weeks, though. And taking anti-androgens such as bicalutamide for a few weeks can relieve this concern.
Chemical Castration As Punishment For Sexual Offences: A Strong Deterrent Effect:
The hysterical Delhi gang rape of 2012 and subsequent death of the victim resulting in widespread outrage throughout India had led to calls for chemical castration as a punishment for rapists. This was primarily agreed by various political and civil society groups and reportedly the central Government too prepensed the same which they thought would curb the rising rates of rape throughout the nation.Unfortunately, this method of punishment had been clearly disapproved by the lawmakers to have made this as a penal provision as an alternative for the penal laws existing. Chemical castration is an alternative punishment for the rapists and would undoubtedly if implemented would mark a reduction in the rising rates of rapes in the country. This suggestive measure would definitely do justice to the victims who have been brutally raped.
The incorporation of chemical castration as an alternative punishment was proposed by the Justice Verma Committee after the 2012 Delhi Gang rape. Woefully, the wrongdoers' rights were given more priority than that of the sufferers and survivors leading to the rejection of the proposal. In comparison with other nations, chemical castration is one of the effective measures taken to punish the wrongdoers.
This raises a question, as to why India should not adopt the same. There were supporting opinions from the National Commission for women. They opined that the sexual offenders may be chemically castrated where "they can stay alive with a vital part of their body dead". Castration is being looked into as a retributive kind of punishment by the lawmakers of the country. Chemical castration is a process wherein it reduces the sex drive or sexual urge of people when it is administered medically. The process of chemical castration "reduces the production and effects of testosterone thus diminishing the compulsive sexual fantasy.
Formerly insistent and commanding urges can be voluntarily controlled. "Castrate the rapists." Since the horrific Delhi gang rape of December 16, 2012, this call for retributive justice has been heard repeatedly at protest marches and political rallies, an expression of public outrage in response to increasing reports of sexual violence across India. Lawyers, activists and lawmakers have, so far, brushed the idea aside.
In 2013, while making recommendations for more stringent rape laws, the Justice Verma committee deemed the notion of castration as punishment to be a violation of human rights and an ineffective solution to the "social foundations of rape". But on October 16, the Madras High Court became the first constitutional body to formally recommend castration as a means of punishing people who rape children.
While hearing the case of British national-facing paedophilia charges in Tamil Nadu, Justice N Kirubakaran passed an order directing the central government to consider castration as an "additional punishment" for child rapists "in view of abnormal increase in child abuse cases". The Madras High Court order acknowledges that its recommendation of castration is likely to be seen as "barbaric", "retrograde" and "inhuman" by "people who claim to be human rights activists", but asks activists to focus more on the suffering of abuse victims than the rights of sexual offenders.
The Extent Of Indian Jurisprudence In Execution Of Chemical Castration:
The Indian laws do not entail any Castration as punishment for any offence over any statute. As stated earlier, the JS Verma Committee constituted after the ignominious Nirbhaya Gang Rape Case also rejected the idea of Castration as a punishment for Rape. In 2018, the Supreme Court Women Lawyers Association (SCWLA) made a representation in the Prime Minister's Office (PMO) to induct Chemical Castration as an additional punishment for sexual violence of children.The SCWLA was of the opinion that provision of an additional punishment of Chemical Castration for the Rapists of the children aged below 12 years of age will be a deterrent factor. The provision for implementing Chemical Castration as an additional/alternative punishment became the topic of debate when Additional Sessions Judge of Delhi District Court Dr Kamini Lau propounded in the judgement of State v. Dinesh Yadav the need for Chemical Castration as a form of punishment for the deterrence of such horrific offences. The accused was convicted for raping his minor step-daughter aged 15 years over the period of 4 years.
The Judge went on to state that the strictest of existing punishments in the law has failed to provide a deterrent effect on rapes and with the existing set of punishments the administration is struggling to tackle this menace. She suggested an alternative form of punishment in the for-Child Rapists in the form of Chemical Castration. "Chemical Castration does not actually castrate the person, nor is it a form of sterilization and for this reason, the term "Chemical Castration" has been called a misnomer.
Castration has, from time to time, been used as an instrument of public and/or judicial policy despite concerns over human rights and possible side effects."Following that in 2015, Justice N. Kirubkaran in the Madras High Court in a judgement also called for the introduction of Chemical Castration as the form of punishment for Rape of minors and it will fetch the magical results in dipping down of the Rapes and sexual violence against minors.
These instances have already formed a strong basis for the introduction of Chemical Castration as a punishment for the Rapists. The Judiciary at different levels in their judgements has recommended the lawmakers and the stakeholders to ponder upon the same.
International Position In Execution Of Chemical Castration:
Nine states in the US have adopted chemical castration as the punishment for Rape and sexual violence against minors. In 1996, California was the first state to enable the provision for Chemical Castration as a punishment for Child Molester with an amendment in Section 645 of the Californian Penal Code. It involved injection with a drug that reduced sexual tendencies to a large extent, the law stated that it was voluntary on the first instance of offence and was to be given while on parole, and it was mandatory on the second occurrence of the sexual violence against the children.Following such enactment, 9 other states in the United States passed similar laws, Louisiana allowed the Courts to sentence the convicts of Rape to Chemical Castration, while in Iowa, California and Florida, the same can be done for serious sex offences. Along with the US, a wide number of European Union nations such as Poland, Germany, Estonia, Sweden, Finland, Denmark, Norway, Lithuania, Hungary also allowed Chemical Castration in their laws in distinct ways.
While, other countries such as Argentina, Indonesia, Australia, Israel and New Zealand also exhibit Chemical Castration in their laws. The Czech Republic has been criticised by the Human Right Organizations for administering Surgical Castration along with Chemical Castration in their laws and practice but it is still continued. Poland has made Chemical Castration compulsory for Sex offenders in 2010. Indonesia mandated the compulsory Chemical Castration for convicts of Child Sexual Violence in 2016. It suggests that wide jurisdictions in the world have adopted Chemical Castration as a punishment for Rape and Sexual violence cutting across the diversities in terms of region, advancement, demographics etc.
Proponents For Chemical Castration:
The proponents of human castration as a legal punishment for heinous rapes interpret Article 21 in a different way from what Indian jurists are doing right now. They claim that the "procedure established by law" can include castration. The act of raping and violating the physical space of a woman (children, in many cases) is considered so inhuman an act that human rights are not considered by society.
Castration, both physical and chemical, is a process that would decrease the testosterone content, and hence, the sexual urges felt by the rapists. Studies in the United States have shown that in some states where chemical castration is legalised, castrated offenders show extremely low rates of showing sexually perverse tendencies.
Larry Don McQuay, a convicted sex offender, in Washington Monthly (1994) said "What is barbaric is what I have done to so many children; refusing to castrate me is barbaric to the children I will molest. [Chemical castration] is considered 'cruel and unusual punishment.' But no punishment is crueller or more unusual than the pain I have caused my victims. Voluntary castration is not unconstitutional, but no state allows it". The argument of Larry Don McQuay is echoed by a few sex offenders who volunteer for castration instead of imprisonment.
Opponents For Chemical Castration:
The opponents of castration as a legal punishment interpret involuntary castration as a violation of Article 21. Castration deprives the man, not just of control over his sex life, but also from his dignity and respect. Involuntary castration is a violation of the right to privacy to the physical space of the patient, our Constitution, human rights and so on. Indian Constitution, common law principles and almost every known law state that the punishment should be proportional to the crime or wrong committed.
Does the debate arise whether castration is proportional to the crime? Opponents argue that it is not, and it is not even addressing the root cause of rape. Most rapes do not happen due to lust or sexual desires. Rape is also an expression of power and domination. Rape shows male chauvinism in its extreme sense. It is used as a tool for humiliating the victim. Does castration affect the misogyny deeply rooted in the mind of the rapist?
No, it does not. Further, it is possible for a castrated man to regain the use of their sexual organ through intake of testosterone as steroids. The effect of castration varies from individual to individual. A lot of individuals are known to undertake regular sexual activities after the operation, even without stimulants. This defeats the purpose of castration in the first place. Ohio, California, Illinois and Arkansas have legalised voluntary castration. But why would a culprit want to opt for the procedure?
One answer is to wash away their guilt. Larry Don McQuay is one of those. Another reason is that castration is an easy way out of rigorous imprisonment. These states give castration as an option against rigorous incarceration. In such cases, the purpose of justice is defeated.
Conclusion And Suggestions:
After analyzing the Indian Criminal law, judicial decisions and the laws of the other countries, it could be concluded that the present law has many issues and challenges in combating sexual offences like molestation, pornography and rape. The guidelines laid down are not strictly implemented by the police, doctors and the courts which seriously hamper justice for the sexual abuse victims, especially innocent children.
It should be the prime duty of the researcher to put efforts in law reforms initiatives and their strict implementation for the best interest and the welfare of the sexual abuse child victims. The Government should also incorporate and introduce some of the principles from the laws of the other countries which are more child friendly and march towards the advancement of the criminal justice administration of our country. "A crime should always be treated as a crime and not as a mistake".
Despite the stringent punishments as amended in the POCSO Act, 2019, the crime rate is on an increasing scale which clearly shows that the poor implementation of the legislation has been done. The need of the hour is to eradicate the sexual crimes in our country which in turn has forced the legislators and the researchers to focus on the recidivism of the sexual offences and the suggestion of the alternative stringent punishment for curbing the sexual offences in our country.
It is of high recommendation that India should also adopt effective measures like other developed countries in implementing stricter laws and stringent punishments to prevent sexual crimes. Many sociologists and social workers have opposed the execution of chemical castration stating that it violates human rights and Article 21 of the Indian Constitution, 1950. To my knowledge and point of view, I would suggest chemical castration for habitual sexual offenders as the stringent and preventive punishment for combating sexual crimes in India. When we consider Article 21 of the Indian Constitution, "No person shall be deprived of his life or personal liberty except according to a procedure established by law".
In Article 21, the exception of procedure established by law clearly explains that every person is bound to the law and punishable by law if anybody commits an offence or act prohibited by law. To my concern, the pain of the sexual abuse victims is greater than the pain of the sexual offenders. Even though many sociologists and human rights commissions are opposing the execution of capital punishment or the death penalty in India, still now the death penalty is rendered to convicted persons in India.
Keeping in mind all the above considerations, I would suggest the execution of chemical castration as an alternative and stringent punishment for habitual sexual offenders in India. In addition, setting up of welfare centres will stress the importance of the responsibility of overseeing that complete justice is done to the child and the child is not further victimized by the judicial process. The Government should lay down some rules and measures to protect the interest of the vulnerable witnesses and should ensure the effective working of the child welfare institutions to protect the best interest of the sexual abuse child victims.
References:
- POCSO Amendment: Loopholes and Breakthroughs by Milana Prakash on August 13, 2019
- Misuse of the Protection of Children from Sexual Offences (POCSO) Act, 2012 by Lexlife, India on May 6, 2021.
- Critical analysis of India's Protection of Children from Sexual Offences Act, 2012 by Mayank Tiwari on May 8, 2020
- Chemical castration: Justice for Victims or Justice for the Rapist by Shibina Muhammed and Amritha Baskar, JSS Law College, Mysore on August 2018.
- Analyzing the legal dimension of Castration as Punishment for rape in India by Kritika Mishra
- SC Women Lawyers Association seeks Chemical Castration for child rapists on July 22, 2018
- Chemical Castration as Punishment: A Strong Deterrent by Author Harshit
Jain on July 23, 2020
Award Winning Article Is Written By: Ms.Sarala Jayakumar
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