Retributive justice

Will the suggested penalty of chemical castration for child rapists bring down the incidents of child rapes in the country Well, some judges, politicians and civil society groups, reacting in a knee-jerk manner to the spiralling child sexual abuse cases in the country, seem to think so.

The demand for chemical castration is not entirely new. Periodically, politicians and judges make sensational statements, prescribing chemical castration as an effective remedy, betraying a shallow and superficial understanding of the problem at hand. During the National Democratic Alliance rule in the late Nineties, L.K. Advani, the then deputy Prime Minister, had raised this demand. Earlier, S.M. Agarwal, a sessions judge in Delhi, had made a similar comment. Justice V.D. Tulza-purkar, a Supreme Court judge during the early 1980s, responding to the anti-rape campaign, had suggested that rapists should be publicly flogged. People in influential positions have often subscribed to sensational solutions, resulting in manipulating public sentiments.

Most recently, in October 2015, Justice N. Kirubakaran of the Madras high court commented that child sexual abusers must be castrated. Reacting to the recent spate of child rapes in Delhi, the judge commented that traditional law is not stringent enough. Though castration may appear barbaric, the judge stated, it is the only way the menace can be curbed.

Following which the Supreme Court Women Lawyers Association approached the Supreme Court with a public interest litigation (PIL) seeking a direction to the Centre to consider imposing chemical castration on child sex abusers and child rapists.

During their arguments before the Supreme Court last week, they cited the judgment of the Madras high court in support of their demand. They also argued that many developed countries like South Korea, Russia, Poland and some states in the US had introduced this punishment as a remedy. But what the lawyers did not clearly put forward is that in most cases this punishment can be opted for by the accused in lieu of a prison sentence.

While the bench comprising Justices Dipak Misra and N.V. Ramana conceded that the law must be more stringent, it stopped short of endorsing the suggestion of castration. The bench was of the firm view that changing the law is a legislative prerogative and courts cannot intrude into the domain of the legislature or even issue directions regarding the same to Parliament.

It is heartening to note that the response from Maneka Gandhi, minister of women and child development, has been restrained. She outright rejected this suggestion and commented that such a barbaric measure will amount to sliding back to the medieval era or to Islamic jurisprudence which prescribes cutting off a hand as punishment for theft.

Well, it would indeed be going back to the archaic Babylonian law and the code of Hammurabi which was based on vengeful justice or the retributive theory of justice that liberal democracies rejected a long time ago. But it does appear that today we are lapsing from the reformative theory of justice, which jurists such as Justice Krishna Iyer prescribed, and are keen to ad-opt the retributive theory of justice as recently demonstrated by the changes brought about to the Juvenile Justice (Care and Protection of Children) Act, 2015, which now permits minors between the age of 16-18 to be tried as adults.

Ms Gandhi came out with another novel idea of tattooing child rapists, so that they carry the stigma on their body for the rest of their lives. This reminds one of the punishment prescribed for women guilty of having multiple sexual partners, of prominently displaying the scarlet letter “A” (for adulteress) on their clothing to mark them as “fallen women” in puritan Boston during the 17th century. Though in a milder form, “tattooing” subscribes to the same notion of retributive justice.

The Supreme Court bench stated that there was no specific provision for child rape in the Indian Penal Code without making a reference to the provisions of Protection of Children from Sexual Offence (POCSO) Act enacted three years ago, on November 14, 2012, and commented that rape of toddlers and young girls stood on a different footing than rape of minor girls and Parliament should consider making a provision to deal with these separately.

According to Justice Kirubakaran of the Madras high court, even the stringent provisions of the POCSO Act have failed to act as a deterrent. He commented that while the incidents of child rape have increased 400 per cent, the conviction rates are dismal, a mere 2.4 per cent.

So then how will castration help Was the judge suggesting that as soon as an accused is arrested, he be castrated at the police station itself, because by the time the trial and appeals end, the accused may go scot-free. Chemical castration involves the administration of anti-androgen drugs which reduce sex drive, compulsive sexual fantasies and capacity for sexual arousal. Under the POCSO Act, penetrative sexual assault includes various other acts such as insertion of fingers, bottles or other objects into any body orifice such as the vagina or the anus or even oral sex. So how will castration help reduce child abuse

In an illuminative article in Al Jazeera in 2014, Hamid Dabashi, a scholar of Iranian Studies at the Columbia University in New York, in response to reports about the bodies of two teenage girls who had been gang-raped and were found hanging from a mango tree in a village in Badaun, Uttar Pradesh, dubbed castration as a knee-jerk reaction and suggested that we need a resurgence of solidarity based on the protection of the most vulnerable.

Relying on some expert studies, he states that though testosterone levels and consequently men’s libidos can be lowered through surgically removing the accused person’s testicles or treating him with drugs, the level is not brought down to zero and the libido is still active and hence there is no guarantee that the offender shall not lapse into the same behaviour. This type of punishment is viewed as cruel by the American Civil Liberties Union (ACLU) and Amnesty International. “When the state becomes involved in legalised castration, the spectre of forced sterilisation under the Nazis is immediately invoked,” Dabashi warned.

As per the National Crime Record Bureau, 85-95 per cent rapes are by known persons. So how can the solution lie in the domain of over-medicalised, over-legalised and over-politicised punishment The solution must lie within the realm of providing protection to the most vulnerable children from the marginalised segments of our society through a multipronged support mechanism rooted in our reality.

The writer is a women’s rights lawyer