The burning issue these days is should the Juvenile Rapists be hanged?
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Let us understand a bit of law for a better grasp of the issue as per Section 83 of the Indian Penal Code (IPC) any act committed by a child above 7 years of age and below 12, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion is not to be considered as an offence. Therefore, rape if committed by a person over 12 years of age is automatically a crime and a punishable offence. Therefore the reasoning given by proponents of hang the juvenile rapists that such acts are not considered as crime is incorrect. Such acts are considered as crimes.
About The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act)
The Act is the legal framework under which juveniles (individuals below 18 years of age), who commit a crime are tried and rehabilitated. The primary motive of the Act is to ‘Treat and Rehabilitate’ juveniles. The Act was brought in compliance of Child Rights Convention 1989 of the United Nations. The objectives of the Act are:
- To consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established
- To Adhere to the constitutional provisions which are:
- Article 15(3): Special Provisions for women and children
- Article 39 (e): That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength
- Article 39 (f): That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment
Therefore the Act was primarily for rehabilitation of juveniles who have strayed towards crime so that they can become contributing members to the society.
Understanding Punishment:
Before we jump on #HangTheRapist bandwagon, it is critical to understand the concept and theories of punishment. Punishment typically serve 5 purposes:
- Deterrent Theory of Punishment: Punishment’s primary purpose is to show the futility of crime, thereby teaching a lesson to others. The ideology behind this type of punishment is that crime is committed to further the interest of the criminal, against the well being of the society. The deterrent theory tries to make crime an expensive affair making it a bad bargain for the criminals. The drawback of this theory is that crime is often committed in the heat of the moment and the criminal does not have the wherewithal at that moment to weigh his/her acts, hence the desired effects are generally not seen under this theory.
In an interesting judgement of Phul Singh vs State Of Haryana, the young accused had raped a 24 year old neighbour. The hon’able Supreme Court had held, the appellant is a youth barely 22 with no criminal antecedents save this offence. A man like the appellant has a reasonable prospect of shaping into a balanced person, given propitious social environs, curative and congenial work and techniques of internal stress release or of reformatory self expression. The hon’able court observed, the incriminating company of lifers and others for long may be counter-productive, and in this perspective, we blend deterrence with correction and reduce the sentence to rigorous imprisonment for two years.
- Preventive Theory of Punishment: This theory focuses on preventing the crime by disabling the criminal. Historically maiming was considered to be an effective method of prevention, ie. cut the hand of a thief etc… The barbaric act of maiming has been abolished and been converted to imprisonment where the criminal is put behind bars so that he/she is prevented from committing the crime till he/she is behind bars.
- Reformative Theory of Punishment: The ideology behind this theory is that a person may commit a crime due weakness of the character of the person. Here the focus is to strengthen the character of the criminal so that he/she may not become a victim of his/her own temptation. Here the criminals are sent to the prison to be reformed and turn a new leaf so that when they are released they can become law abiding and contributing citizens of the society.
- Retributive Theory of Punishment: In simple terms retributive theory means that the criminals ‘pays’ for what he/she has done. The state tries to avenge the pain of the wronged person. The idea behind this theory is evil should be treated by evil ie. an eye for an eye and a tooth for a tooth. The theory rests on the moral satisfaction the wronged person gets by seeing the pain being inflicted on the criminal.
- Compensating Theory of Punishment: The object of this theory is to compensate the victim of the crime. The theory suggests that the crime comes from the fountain of greed and if the ill-gotten gains of the crime are made to return to the victim, this fountain would dry up thereby reducing crime. A severe limitation of this theory is that many crimes are not committed due to economic motives.
In essence a criminal justice system ought to have a judicious mix of the above punishments and should try and remove crime not the criminals…
In Ramesh Kaushik vs B. L. Vig, Superintendent, the hon’able Supreme Court stated that the fundamental fact of prison reforms comes from our constitutional recognition that every prisoner is a person and personhood holds the human potential which, if unfolded, makes a robber a Valmiki and a sinner a saint.
Let us now analyse the question at hand ‘Hang the Juvenile Rapists’. Rape as a crime, primarily has 2 motives Sex and Power. As per the research, sex is the prime motivator for rape, thereby it is typically a crime committed in the heat of the moment. The criminal is of a weak character and unable to restrain his urges to commit a crime. Further, in case of juveniles, the criminal majorly does not have the sufficient maturity to understand his/her acts coupled with the weakness of character. Thereby the most fruitful punishment theory in such a case is the ‘Reformative Theory’. Having a stricter punishment will not be a deterrent to such a crime as the motives are different and out of the control of the juvenile, further, preventive theory will also not be fruitful as the criminal is not a habitual one. Compensative theory is not possible as the motive was not economic.
The Juvenile Justice (Care and Protection of Children) Act, 2000 therefore correctly comprehends the mental make up of a juvenile offender and provides them an opportunity to reform which is possible at this tender age. The sprit of vengeance of the retributive theory is also met as the offender is put behind bars for 3 years to contemplate and reform into a law-abiding citizen.
Is capital punishment a cure for crimes?
In simple terms the answer is ‘NO’, reasons given below:
- In US, the states which have abolished death penalties have a considerably lower serious crime rates. Hence, it is safe to state that death penalty does not have any deterrent effect.
- The correct thing to do is finish the crime and not the criminal. Death penalty is finishing the criminal and not the crime
- Are our laws of evidence and laws of procedure foolproof? Does it always lead us to the truth? Can there be no judicial errors? In such a scenario death penalty is not the correct sentence as once awarded it cannot be revoked.
- Further, even consensual sex can be termed as rape such as promise of marriage cases etc. Consensual sex by a juvenile with a person of the same age is defined as rape (see definition of rape). Should we hang the boy having consensual sex with a girl of the same age?
- False rape cases have also increased in the recent past as mentioned in Link1 and Link2, punishments awarded in such cases cannot be revoked
Conclusion: My appeal to everyone, think before following a ‘fad’. Every action has certain consequences, understand them. Understand why justice system is there what does it plan to achieve, how does it plan to achieve its stated objectives. Understand the psyche of the crime and criminal before coming to a conclusion. In the article above I have tried to bring out all the different facets of the debate coming to a conclusion that #HangTheRapists will not reduce rapes and will be contrary to the juvenile justice system. Further, justice system is not a system to get vengeance but a system to protect and improve the society. Providing harsher punishments, which donot meet the desired objectives, is tilting the sclaes towards vengeance away from justice.
What do you want, let us all Stand Up for a Cause…
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