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The Madhya Pradesh Assembly in December 2017 unanimously passed a bill which pertains to awarding death to those found guilty of the offense of rape against the girls aged twelve and below. With this, Madhya Pradesh becomes the solo state in the country where such rape offenses will face the gallows. The Bill was passed without any hitches since the opposition too was in harmony with the Chief Minster’s view that, “Jo log 12 saal ki masoom bachhi ka balatkaar karte hain wo manushya nahi pishach hain unhe jeene ka adhikaar nahi” {The individuals who commit rape on 12-year-old girls are not humans but devils. They don’t have the right to live any more}. Capital punishment will be awarded to convicts under section 376 (A), which relates to rape, and section 376 (D, A), pertaining to gang rape.

Jo log 12 saal ki masoom bachhi ka balatkaar karte hain wo manushya nahi pishach hain unhe jeene ka adhikaar nahi

The State of Madhya Pradesh has consistently been a worse performer in ensuring women’s safety. The National Crime Records Bureau (NCRB) data for 2015 indicates Madhya Pradesh as the reporter of the highest number of rape cases (4,391) in the country.  Similarly, as per NCRB 2014 data, Madhya Pradesh reported 5,076 cases, accounting for/comprising of 14 per cent of the total rape incidents in India.

However, this move of the Government is entrenched in its attempt to look tough on offenses against women in the light of recent events. In October 2017, the police stonewalled the filing of FIR of a 19-year old student who was allegedly raped near the railway station under broad day-light in Bhopal. The incident attracted the wrath of the entire nation placing/glorifying the inefficiency of police offices in lime-light and unnecessary delays by police in cognizable offenses.

The Legislation might help Government save its face; but, it fails to provide a solution to the issue at hand. The delay in filing FIR, the treatment meted out to rape victims in the police station and the paternalistic attitude of police officers, all are at the core of the problem here. These issues seem to preclude all. The entire discourse is directed towards the punishment deserved by the rapist and not towards having access to justice in the first place. Punishment can be awarded only after the case has been registered at the police station, then brought to trial and decided upon by the Judiciary. However, if the first condition of this chain i.e. the police officers fails to performs of their duties, then any change to the quantum of punishment will bring a very little change to the ground reality for women.

Scope of the Legislation: A Potentially Counter Productive Move

This Legislation will also apply to cases wherein the rape victim is below 12-years of age. Statistically, children between the age of 5-12 possess the highest risk of physical sexual abuse. Majority of these offenses are committed by family members who are in a position of trust or authority. Coming forward to report cases against their own family members in India where social structure is characterized by close-knit families, is difficult. The attempts are made to silence the voices owing to the taboo around rape and sexual abuse. This punishment will further preclude individuals to come forward with complaints as the/in case the offender is a close family kin. Also, the enhancement in the quantum of punishment is of no avail in getting rid of the taboo, which is all pervasive in Indian society.

Facets of Capital Punishment: Humanitarian Concerns

One of the main functions of modern-day punishment is reformation and deterrence. The former aims at changing the character of the convict and the latter works towards setting an example in the society and deterring any individual from committing the same crime. However, in case of a death penalty, there is no opportunity given to the convict to lead a changed/reformed life after completion of his/her punishment. The Law Commission report released in 2015 has busted the myth that Death penalty acts as a deterrent.

One understands law, justice and accordingly individual/societal responsibility dictates their view on capital punishment. The society at large cannot get any by labeling the rapists as either ‘evil’ or ‘pishach’ because as per a rational argument, they too are a part of society we all reside in. The process of socialization has an impact on the actions of the individual. This is not to say that there exists no individual responsibility for one’s own actions, but to make a point that criminal activities are as much as societal responsibility as individual responsibility. Even the Supreme Court acknowledged that being on death row in India amounts to “near torture” for the convict. The ends of reducing crimes cannot justify the means.

The Dissent

Human Rights lawyers, activists, and various NGOs have voiced their concern and discontentment towards the Bill. One Asmita Basu, programs director, Amnesty International India, in a statement said, “the government should, instead, focus on ensuring the certainty of justice rather than increasing the severity of punishment. The Justice Verma Committee and India’s Law Commission have both opposed the use of the death penalty for crimes involving sexual violence.” The death penalty is the ultimate violation of the right to life.”

The decision of Madhya Pradesh to regard Death Penalty as a viable and an apt solution in an era where the International Community is deliberating on doing away with this inhumane act altogether has surprised them.

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