Death for rapists of minors: a knee-jerk reaction without thought 

Rapists must be condemned and punished severely. There is no doubt about that. The public outrage over the disgusting and inhuman crimes committed in Unnao and Kathua justifies the strongest possible response.

But nobody should ignore the harsh truth that in both cases there was direct involvement of BJP leaders, whether in committing the crime itself or in protecting the perpetrators. It is also undeniable that the Prime Minister kept silent for many days on the matter.

Kill the rapists is a rousing slogan. Prescribing the death sentence for rape of innocent children may look like firm action by a government that really cares. But the Ordinance passed by the Narendra Modi Cabinet fails the test of morality on several counts.

This reflects a certain mindset. It cannot be camouflaged by a show of empathy, sympathy and concern in the form of a populist new legal provision for capital punishment for rape of minors. Even that is riddled with disturbing questions. A rape is a rape. What is the basis for differential penalty based on the age of the victim?

Quite clearly, the only objective of passing a dramatic ordinance within hours of the Prime Minister’s return to the country after an overseas trip was to give an impression of swift and decisive action.

But making such fundamental changes in the law of the land without proper thinking of all the ramifications and consequences can be more damaging than not taking any action at all. Moreover, the scope for malicious misuse of the harsh new provisions raises even more frightening questions. Has this very important aspect been analysed in depth and adequate safeguards incorporated? No, the aim was to be seen to be acting.

The government should make sure that gender equality under the Constitution shall not be hurt. Children and adult girls and boys, men and women all get raped. All categories of male and women indulge in rape. No age or gender difference should be there while enacting the law. Law makers and courts need to emphasise that.

Moreover, accusations of rape can be false as well, between boyfriends and girlfriends, between employers and employees, friends and friends, relatives and relatives. The hate and fear in our society has weakened our moral fibre.

It also smacks of shedding belated crocodile tears in order to cover up the initial failure to say and do anything. Many days went by before any action was taken against the accused rapist in Unnao, a BJP legislator. And action was taken only after a hue and cry was raised by the public and the media.

In the Kathua incident, the sequence of events was even more bizarre and again many days went by before the BJP ministers who had supported the rapists were asked to resign. Public memory is not so short that all such details will vanish from everyone’s memory.

As regards the award of capital punishment, there are many eminent jurists who have examined its pros and cons in great detail. Although pragmatic arguments for and against the death penalty have been positioned at length, it still remains a longstanding and heated controversy. It cannot be resolved in a few minutes of discussion at a hastily convened Cabinet meeting to reflect the opportunistic thinking of a particular government at a particular time.

Ultimately, the issue has to be decided on legal, constitutional and moral grounds. The debate is whether a society, in which the dignity of the individual is supreme, can, without a fundamental contradiction, accept the practice of deliberately putting some of its members to death.

Throughout history, many courts have dealt with many cases involving the death penalty, but the constitutionality of the death penalty per se has never been adequately resolved. In India, death sentence is already applicable to “rarest of rare” cases. The Kathua gangrape, torture and murder of an eight-year-old child surely appears to fall in the category of rarest of rare.

Apart from these aspects, the question also is relevant about the political motives of the group of persons taking such a decision to inflict death on rapists of minors. Equally pertinent is whether the moral integrity of the elected government is above reproach. Will those who shielded and lionised the rapists go scot-free? Sending rapists of minor children to the gallows is all very well, but will the ‘rakshaks’ remain unpunished?