‘It struck too close to home’. That has been the chorus after the dastardly rape of a child for over seven months in an apartment complex in Chennai came to light. The justifiable outrage has triggered vigilantism by lawyers in the court and furious posts on the social media calling for ‘instant justice’. At the heart of such heinous crimes that are being perpetrated so brazenly and with chilling regularity, despite all the knee jerk reaction everytime, is the need for deterrence. The Criminal Law Amendment Ordinance, 2018, had addressed the collective cry for justice. New sections have been introduced in the Indian Penal Code like Section 376 AB which prescribes a minimum punishment of twenty years rigorous imprisonment and upto the death penalty for raping a child of less than twelve years. Section 376 DB IPC carries capital punishment for gang rape of a child who is less than twelve years.
There are laws and laws, old and new but where is the deterrence? Those who oppose the death sentence on the ground of no proven deterrence, must suggest an alternative measure to instil fear of the law. The possibility of perpetrators killing their victims due to the death penalty is a real danger to be reckoned with. Those who are mindful of the penal consequences, do not commit rape, unless they are really hardened criminals. To such beasts, no deterrence can work. But to first time offenders, the death penalty is likely to weigh on their perverted minds.
The Supreme Court in Mukesh and Another Vs State for NCT of Delhi, better known as the Nirbhaya case, held that “the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime.” The Court suggested drawing up “a balance-sheet of aggravating and mitigating circumstances attending to the commission of the offence” and then striking a balance.
In a landmark judgment in Shankar Kisanrao Khade Vs State of Maharashtra, the apex court laid down the grounds which weighed with the Court in confirming the death penalty. These include the diabolic, brutal, depraved and gruesome nature of the crime, public abhorrence that shocks the judicial conscience or of society, premeditated perpetration, defenceless state of the victim and the menace or threat to society that the accused pose. I have no hesitation in my mind that the Chennai child rapists committed a ‘rarest of rare’ crime that calls for the hangman's noose.
The ordinance may provide for a speedy investigation within 2 months and a speedy trial within 6 months. But the rigmarole of appeals in higher courts, leading right up to Presidential Pardon for convicts on death row, is way too time consuming to inspire enough public confidence in the rule of law.
While public anguish is completely understandable, it is important to pin down the real accused. Not all those who are named as accused may be guilty. The possibility of innocent people being implicated, or some real culprits at large, cannot be ruled out. Only a proper trial will establish guilt. India is not a banana republic. We gave even a dreaded terrorist like Ajmal Kasab, who was caught on camera gunning down innocent people, a fair trial.
And don't forget the right to privacy of the victim. Circulating information about the name of the school or apartment complex is an offence under Section 228 A IPC with a two year jail term. Section 23(2) of the Protection of Children from Sexual Offences (Pocso) Act also shields the identity of victims.
This crime has shattered to smithereens the notion of safety in a gated community, with the proverbial fence having eaten the crop. Who will watch the watchmen? Under the Private Security Agencies (Regulation) Act, 2005 and the Tamil Nadu Private Security Agencies Rules, 2008, no guard must be over 65 years, be drunk on duty or have criminal antecedents. Unlike background checks for maids which is optional but advisable, police clearance for security guards is mandatory. If these guards commit a crime on the premises they are posted, that constitutes a ground for cancellation of the security agency’s licence under Section 13 of the Act. But how many of them are registered with the State Police? If there is no licence in the first place, where’s the question of cancellation? This is despite the law that makes functioning without a licence an offence under Section 4 with imprisonment of upto a year and a fine under Section 20(1) of the Private Security Agencies (Regulation) Act.
Going by the pattern and rate of crime, making installation of CCTVs in all new residential and commercial buildings - in elevators, common areas and all blind spots, mandatory by amending the Real Estate (Regulation & Development) Act, 2016, would be useful. The CCTV rule can be applied to all old buildings too, just like rain water harvesting was made compulsory for everyone. Residents Welfare Associations can take it up. CCTVs are as important as planting saplings or composting garbage. Schools must have a weekly period for psychological counselling. Self defence must become a compulsory subject with basic legal awareness. I am waiting for the day when a school kid trained in martial arts, whacks the daylights out of an abuser.