Sunday Interview: 'Castration is not a good suggestion. It will take us back several steps'

Justice N. Kirubakaran took one year to write his order in an interim case (the case will go back to the trial court now) involving sexual abuse of a juvenile boy by a British national. The arguments in the case highlight the contours of a typical sexual abuse complaint, from the time it is filed to judgment day in court. Referring to the Protection of Children from Sexual Offences (Posco) Act, 2012, Justice Kirubakaran has questioned why, despite the law, crimes against children are on the rise. Justice Kirubakaran dismissed a petition filed by a British national where he had sought to quash proceedings against him in a lower court.

Saying that the court cannot remain a silent spectator when the law is “ineffective and incapable”, he said that castration of child rapists would fetch “magical results in preventing and containing it”. But senior counsel R. Shunmugasundaram, former Rajya Sabha MP and former public prosecutor of the Madras high court, doesn’t agree. In conversation with Anuradha Nagaraj, he argues that the suggestion of castration will take us back in time.

You are defending the accused in a case where the first three words in the judge’s order are “castrate child abusers”. What is the background of the case?
It is a 2011 incident in which a British national was accused of molesting a juvenile boy. The accused was taking the then Class 9 student to admit him in a boarding school in Shimla for higher studies. The boy was staying in a trust founded by the accused in Tirunelveli district. En route, they stayed at a YMCA hostel in New Delhi where, according to the initial complaint, when the boy woke up he found that his pants had been pulled down and the accused was sitting on the bed and shaking the victim’s private part.

And your defence is?
The complaint was filed five months after the alleged incident, by which time the British national had returned to the UK. The boy came back from the boarding school because he could not adjust to the climate and didn’t know Hindi. Then, another complaint was filed and the boy was sent to stay in a different home. The police filed a chargesheet and sent the accused summons locally, instead of mailing it to his UK address. He wasn’t aware of it and by then the police got a non-bailable warrant, contacted Interpol and issued a red corner notice against him. We challenged it in court, since the client was unaware of these events and wanted the chargesheet quashed. Moreover, the allegations appear fabricated. In fact, the victim has said so in a later affidavit. Many of the other statements, including the one given by the boy’s mother, are favourable to the accused.

How did the reference to rape come up in this case?
The judge appears to have collected evidence. This incident happened in March-April 2011. But in his judgment, Justice Kirubakaran has also quoted incidents of brutal gangrapes of toddlers in Delhi. These are not the points we argued in the case, which was over in Madurai in September 2014. The order was passed a week ago in Chennai and I think the judge probably wanted to make a larger point.

In his judgement, Justice Kirubakaran talks about “foreign monsters… regularly landing in our land to abuse our children” and has suggested castration “as an additional punishment for child abusers, especially, child rapists”. Do you agree with him?
Castration is not a good suggestion. We should not go several steps back with such ideas. We are not a Middle Eastern country where hands are cut off for stealing. This will do more harm to society. If you leave a permanent scar, it will not reform the accused, but will always make him vengeful. Why create such problems? There are several theories of punishment that even the Supreme Court has accepted. In the Roy Fernandes vs State of Goa & Ors, 2012, Justice T.S. Thakur accepted the restorative theory, according to which, instead of putting the accused in custody, we should do something for both the victim and the accused, to reform him so he can be accepted back into society.

Another Madras high court judge suggested mediation between a rape victim and the accused. Does this also come under the restorative and reformative theory?
That is a different thing. Mediation occurs in many cases. All theories of punishment differ on a case-to-case basis. You cannot make a generalised statement. There are cruel rapes like the Delhi rape case, but there are other cases which, even media analysis shows, are false. It is possible. Even in love affairs, if the girl’s parents don’t want her to marry a particular boy, they file a rape case. There are statistics that show this.

What are the challenges in getting justice for sexual abuse and rape victims?
Many cases are reported late. Also, evidence collection is a problem. Violent sex will definitely leave evidence — torn clothes, blood, etc. But investigating officials do not focus on evidence. Delay erases evidence and allows falsity to creep into cases.

Coming back to the judgment and the larger issue it addresses…
The judgement is progressive in general. Justice Kirubakaran has made a number of suggestions.
He has called for better coordination between the police and non-governmental organisations, talked about nuclear families and the need for parents to be more proactive. He has also called for better sex education and awareness programmes. All that is okay, but castration is an extreme punishment.

Will such observations, made in an interim case, affect the subsequent proceedings in the trial court?
The Supreme Court has cautioned on many occasions that judges should be very cautious of the remarks they make at the interim order stage, because it might prejudice the mind of the trial judge. In this case, Justice Kirubakaran does mention that the chargesheet makes out a case for trial, but has also talked about the material presented that has not been transformed into evidence yet.