The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Child sexual abuse is a rampant problem in India, with time the cases of child sexual abuse are increasing. To deal with the issue, the Prevention of children from Sexual Offences Act, 2012 was enacted by the Government. In the present article, I am going to focus on the inclusion of the Death penalty in the POCSO Act
by a recent amendment and the repercussions of the same.
Contents hide
2.2 Human Rights body Amnesty International India
3 Impact Of Death Penalty In POCSO Act
3.2 What the Act Doesn’t Include
The Protection of Children from Sexual Offences (POCSO) Act, 2012 is one of its kind laws enacted by the Government in the year 2012, it came into force on 14th November 2012. The Act was amended in the year 2019, one of the major amendments was the introduction of the death penalty in the Act. The death penalty was introduced for aggravated penetrative sexual assault in Section 6 of the main act, and the minimum punishment was increased to 20 years of rigorous imprisonment, which was earlier rigorous imprisonment for ten years, extending up to life imprisonment and fine. The uncontrollable increase of the cases of child sexual abuse is one of the reasons
for the introduction of the death penalty in the Act. Child abuse is an evil that no society can tolerate and legislators hope
that the deterrence created by capital punishment would keep our vulnerable children safer.
“The 2019 amendments were introduced to discourage the trend of child sexual abuse and creating a deterrent effect by incorporating stringent penal provisions. This came up by looking at the tremendous rise in the child crime rates,
especially after the Kathua gang rape and murder case. Thus, it was followed by an objective to safeguard the interest of vulnerable children in times of distress
and protect their safety and dignity. ”[1]
The death penalty was introduced with an intention to curb the crimes against children and
to bring this punishment as a deterrent for other offenders.
There already is a lot of jurisprudence on the death penalty
that needs to be consider with respect to the death penalty in POCSO Act. For instance, while upholding the constitutionality of the death sentence under Section 302 IPC in Bachan Singh v. State of Punjab[2], the Apex Court held life imprisonment is the “rule” and death sentence an “exception” to it; death sentence to be not award “save in the rarest of the rare cases”. Subsequently, the Supreme Court in Macchi Singh v. State of Punjab[3] condensed the guidelines for applying the doctrine of “rarest of rare” to cases involving the death penalty.
Listed above are the mitigating factors that the court should consider before awarding the punishment. Basically, the nature of the crime must be such that no other punishment, other than the death penalty can be award to the wrongdoer, and
awarding life imprisonment doesn’t seem adequate for the crime committed by the person. The court, even after giving proper consideration to the mitigating factors,
must feel that the death sentence is the only punishment that can be provided for the crime committed. The sentencing policy, therefore, needs to strike a balance between the ‘twin factors’ i.e. the deterrent effect and the scope of reformation and integration of the offender in civil society.[4]
While introducing the death penalty in POCSO Act the legislature clearly has ignored the instances of the advocates asking for the abolition of the death penalty. For instance Advocate, Vrinda Grover was of the view that “In 2013, the criminal laws were amend; however seven years later the graph of rapes has not diminished. Instead of compelling the state to invest in plugging the gaps in the investigation, prosecution, and adjudication of sexual crimes and formulating victim-oriented processes, the clamor for the execution of the convicts has hijacked the discourse. Seven years later, the power of the state to extinguish life stands entrenched,
while women and girls in India continue to struggle to live
a life of freedom, safety, and dignity, as equal persons,”.
Human Rights body Amnesty International India, also was of the opinion that mere execution of the convicts doesn’t make our country safer for the women and girls of our nation. We need proper enforcement and implementation of laws and more necessarily
we need a change of the patriarchal mindset that’s congenital in our society. In the Nirbhaya case as well, Advocate Indira Jaisingh urged the mother of the victim to forgive the convicts of the death penalty[5], we do understand the plight of the mother here who wants to take revenge for what happened to her daughter, but the authorities and the judiciary should keep in mind the overall impact of the same and shouldn’t just focus on the momentary impact of the punishment. The death penalty in the Nirbhaya case was also opposed by the International Commission of Jurists.
However, the anger in the public and an urge to deal with these crimes forced
the legislature to include the death penalty in the act. The legislature completely ignored the existing jurisprudence on the abolition of the death penalty. Let us discuss how helpful inclusion could prove for society.
The debate around the death penalty is an ongoing one, but in this article, we are going to discuss the death penalty as a deterrent with respect to POCSO Act. After the inclusion of the death penalty in the POCSO Act in 2019, the apex court has already awarded the same in the case of Ravi v. State of Maharashtra[6]. The case raises a lot of questions about the sentence awarded to the accused of rape and murder of a minor,
as one judge dissent from the majority opinion and even then the sentence was award.
The majority, in its judgment, emphasizes the need to adhere to the strict parameters laid down in the cases of Bachan Singh and Machhi Singh[7] . However, in arriving at the conclusion, it ultimately fails to comply with these requirements. The landmark judgment of ‘Bachan Singh[8]’, which upheld the constitutionality of the death penalty, also developed the sentencing framework that governs the imposition of the death sentence. It requires the court to identify and consider all the aggravating and mitigating circumstances that relate to the crime and
the criminal and that the ‘mitigating circumstances’ must necessarily be given a liberal and expansive interpretation.
Finally, it holds that the extreme penalty of death should only be imposed in the rarest of rare’ cases, where the option of life imprisonment is ‘unquestionably foreclose’.[9] The court should have followed the same sentencing framework before awarding the punishment under POCSO Act as well and should have considered the mitigating factors and the overall extremity of the crime. However, in the present case, the majority pays no heed to the balancing exercise — it arrives at the sentence by solely relying on one ‘aggravating’ factor, that is, the brutality of the offense, with negligible consideration of mitigating factors. Several relevant mitigating factors present by the counsel for the appellant, such as lack of criminal antecedents, young age, poor socio-economic background, were dismiss during the ‘balancing’ exercise,
which only focused on the crime.[10]
The court took a similar approach in the case of Manoharan v. State[11]. The court in both cases favored the step taken by the legislature to deal with the issue of child sexual abuse and completely neglected the parameters laid down in the previous cases
relating to the death penalty. The judiciary by not following the proper sentencing framework is clearly using the death penalty as a shortcut to justice.
The Legislature did not even consider the fact that under the Act everyone below the age of 18 is consider the same, which in my opinion shouldn’t be the case.
the maturity of a 2-year-old cannot be compare to that of an o a 17 years old.
The Act also doesn’t talk about the cases where consent is given by the children. In situations where a kid is 17 or above they can be consider mature enough, and in these cases not considering their maturity level
It can hamper the process of justice and is unfair to the other party.
Also, the death of the abuser is not the only thing that can lessen the trauma for children. Secondary victimization is a common problem in our society. Even the family members blame the children for the incident,
we need proper awareness of the issue and proper implementation of the laws to deal with the issue.
Further, the Legislature did not consider the fact that abusers in the majority of the cases of child sexual abuse are their own members of the family, and
the death penalty is too harsh a punishment for them. This might reduce the number of cases being report.
In addition to this, children get very vulnerable and disturb by the incidents of abuse, and with the introduction of the death penalty, the need for in-depth investigation has increased in order to prove the nature of the crime. The high responsibility on the authorities requires the questioning of the children again and again
which might increase the trauma they are facing already.
Also, children who are innocent and soft-heart, at such a tender age might not want to be the reason for someone’s death and the same could impact them for a lifetime. With this, it is not propose that the wrongdoers should not be punish, but there are other ways to punish them and
to make sure that the victims and their family members get the much-needed closure.
Life is a gift of god and we as humans are in no authority to take that away from someone. Death penalty can provide just the momentarily gratification, but is not enough in the long run. It is a way the government has chosen to hide its failures.
The Death penalty in POCSO act is not a way out of the situation because the abusers in most of the cases are known to the child victim and they are reluctant to file complaints against the same. Further for awarding death penalty, the offence must be prove ‘beyond reasonable doubt’ and for that the children are question and interrogate again and again and are also asked objectionable questions,
which further creates a terror in their minds and make them suffer more in an already difficult situation.
The motive behind the inclusion of death penalty is still not clear as time and again it has been prove that the same do not act as a deterrent. The same was also suggest in the Law Commission Report in the year 2015.[12] Death penalty might provide a partial relief to the victims and their guardians,
but that’s not the aim of the lawmaking body of our country. The main idea is to make society a better place to live, rather than making it revengeful. Death penalty in some cases also delays the court procedure, thereby increasing the risk for the victim. Therefore, it is suggest that the authorities focus on alternative punishments rather than relying on death penalty.
Inclusion of death penalty is also being misuse by the authorities to create an image of justice and to cover their inability to deal with the safety issues in our country. The annual statistics published by NLUD, under Project 39A shows that the number of death penalties awarded for the murder involving sexual offences is the highest in 4 years in the year 2019.[13] Even after the increased rate, the women/children in our country are still not safe. Also, in the case of Ravi v. Maharashtra[14], we have already discussed how the judiciary considered only the aggravating factors and did not pay enough attention to the mitigating factors. Authorities and the judiciary might misuse the provision
further for their own benefits and to gain support from the ruling party,
but we cannot let politics decide the fate of a person. We cannot mistake a temporary relief for a permanent solution.
Death penalty in my opinion is not something that can stop people from committing crimes, more so in the cases of children where they can be easily manipulated. Death penalty might act as a band-aid for our criminal justice system, but cannot prove to be a cure for the same. The legislature must look for alternative punishments, since, death penalty as a deterrent is clearly not working. Hence, in my opinion inclusion of death penalty in POCSO Act is not going to improve
the situation of child sexual abuse in India.
[1] Khushboo Sharma, Inclusion of the death penalty in light of POCSO (Amendment) Bill, 2019, HNLU Student Bar Journal (August 17, 2020, 10:00 AM),
http://sbj.hnlu.ac.in/inclusion-of-the-death-penalty-in-light-of-pocso-amendment-bill-2019/.
[2] 1980 (2 SCC 684).
[3] AIR 1983 SC 957.
[4] Tanvi Rahim and Sannidhi Buch, The 2019 amendment to POCSO: A socio-legal analysis, The Criminal Law Blog (August 16, 2020, 7:20 PM),
https://criminallawstudiesnluj.wordpress.com/2020/06/06/the-2019-amendment-to-pocso-a-socio-legal-analysis/.
[5] Times Now, Forgive rapists like Sonia Gandhi forgave her husband’s killer: Indira Jaising to Nirbhaya’s mother,
Times Now News, Jan 18, 2020.
[7] Supra note 5.
[8] Bachchan Singh v. State of Punjab, 1980 2 SCC 684.
[9] Ibid.
[10] Ravi v. State of Maharashtra, 2019 (9 SCC 622).
[11] (2019) 7 SCC 716.
[12] Supra note 6.
[13] Gale Andrew and Aishwarya Mohanty, Death Sentence Despite Dissent? Here’s what Legal Precedents say?, Project 39A NLU Delhi (August 23, 2020, 1:48 PM), https://www.project39a.com/blog/2020/1/29/death-sentence-despite-dissent-heres-what-legal-precedents-say.
[14] Supra note 12.
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