Death Penalty under POCSO- Not a Deterrent

The Protection of Children from Sexual Offences Act 2012 (POCSO) was drafted with the
objective to deal with offences against children like child sexual abuse, pornography and widen
the scope of reporting offences against children, which weren’t covered under the Indian Penal
Code was included. The Bill passed by the Rajya Saba on the 18th of July 2019, amends the
POCSO Act to include enhanced punishment under various sections of the act and the maximum
punishment in cases of aggravated penetrative sexual assault has been increased to include death
penalty¹.

● DEATH PENALTY – BEFORE AND AFTER POCSO

Death penalty as a punishment is awarded only in the “rarest of rare” cases where the court is of
the opinion that it is essential to award such a punishment in order to not only to deter others
from committing a crime of such nature but also as a way of displaying an emphatic expression
towards the aggrieved² . Prior to the POCSO Act, the death penalty was awarded by the court in the
cases of Kamta Tiwari V. State of MP³ and State of U.P. V. Satish⁴ when the case fell into the category of rarest of rare and it was essential to sentence the accused to death, not only as a way to deter others from committing an offence of such a scale but also a way of the console the
victim’s family.

Post the POCSO Act 2012, the death penalty was imposed only once by the Supreme Court, in the
case of Manoharan V. Inspector of Police⁵ whereby the court held that there was no ground to review the judgment of the court passed, sentencing the accused to the death penalty. However, in this case, it is important to note that the accused was not convicted or sentenced under the POCSO Act, as the incident took place before the act was introduced.

It is important to take into consideration that ever since the inception and enforcement of the Act
there hasn’t been a single case whereby the accused has been sentenced to death by the Supreme
Court; instead, the decision of the lower courts to award death sentence to the offender has been
commuted by the Supreme Court. The Supreme Court in its latest judgment decided on
03.10.2019, in the case of Ravi V. The State of Maharashtra⁶ the court accepted the contention of
the appellant that the mitigating circumstances dominated over the aggravating circumstances
thus modifying the death sentence to life imprisonment as the Appellant at the time of
committing the offence was aged 25 and the act was committed under the influence of alcohol
and there was no evidence placed on record by the prosecution to prove that the possibility of
reformation and rehabilitation of the offender were not possible.

There were 14 appeals before the Supreme Court with regards to a sentence of the death penalty
imposed under POCSO by the High Court and out of these fourteen, only in the case of
Manoharan V. Inspector of Police⁷ was the accused actually sentenced to death. In all the other appeals, Vijay Raikwar V. State of Madhya Pradesh⁸, Kalu Khan V. State of Rajasthan⁹ to name a few the Supreme Court commuted the sentence of the death penalty to life imprisonment.

● DEATH PENALTY AND THE CONCEPT OF DETERRENCE.

The theory of deterrence is built on the concept or idea that if a sanction imposed by the state is
severe, swift and certain, then the criminal activity will be discouraged. In India, as discussed
previously death penalty is awarded on in the rarest of rare cases and there has not been a single
case in the Supreme Court whereby an accused has been sentenced to death under the POCSO
Act. The maximum punishment that has been awarded to the accused booked under the POCSO
The act has been a life sentence.

Capital punishment today is viewed as a prominent tool of symbolic legislation, a strong political
statement. This is seen as a political gain by the people in power and the core issues with regards
to infrastructural requirements, delay in trials, procedural lapses are not being focused on. It is
important to understand that the certainty of punishment rather than its severity could create any
form of deterrence in real society.

In our country, the amendments in law are made post the public outroar after the commission of
a heinous crime, which in most cases is more of a knee jerk decision, whereby the new
amendments are brought in as a way of making a public statement.

For instance, in the Nirbhaya Rape case the Verma Committee was set up in the year 2013 post
the public outroars and The Criminal Law (Amendment) Act, 2013 (Nirbhaya Act) followed suit.
Another example is with regards to the Criminal Law Amendment Bill of 2018¹⁰, which again was introduced post the Kathua case¹¹, rape cases were to be tried before the expiry of 2 months, however, the judgment in the Kathua case was pronounced in the month of June 2019 which easily is more than 2 months from when the case was filed before the appropriate court.

With regards to the death penalty under POCSO, it is important to understand that in accordance
to the data published by the NCRB, 95% of the cases involving child sex abuse/rape, the
the perpetrator has always been a close family member or friend (i.e. a person of trust) and the actual conviction rate has been less than 15%, therefore by introducing the punishment of death
penalty, many would not come forward to report the cases as they wouldn’t want to risk sending
their family member to death or try and protect the family name and honour¹².

Another concern to focus on is with regards to post-rape murder. The number of post-rape
murders of minor children would increase upon the imposition of the death penalty as the
the perpetrator would try to kill the child because leaving the child alive would impose a greater risk
of being caught and sentenced to capital punishment.

Tough criminal laws in most cases target the weaker sections of the society. As per the NCRB
data of the year 2016, out of 279 prisoners who were sentenced to death, 34% of them were from
backward classes which basically means one in every three under trial is either an SC or ST¹³.

Finally, when the sentence is as severe as the death penalty, the standard of proof is inevitably
going to be very high. So here the victims would be subject to a lot of questioning during trial, this could, in turn, make their situation worse and put them through more mental agony, which
would result in the victims turning hostile.

In the case of Gregg v. Georgia, the judges opined that “Although some of the studies suggest
that the death penalty may not function as a significantly greater deterrent than lesser penalties,
there is no convincing empirical evidence supporting or refuting this view”¹⁴. Therefore, it was held that capital punishment is not necessarily an effective deterrent to crime in society.

In the case of Bishnu Deo Shaw v. State of West Bengal, it was opined by the court that there is
no concrete evidence to prove that the death penalty has actually led to the fall in the crime rate¹⁵.

In the case of Shiv Mohan Singh vs. The State, the concept of whether the death penalty would
act as a form of deterrence to crimes was discussed and the same was answered in the negative¹⁶.

It is important to recognize that deterrence needs to be appropriately backed by a strong bunch of
exhaustive procedures which entails a much-needed refurbishment of the criminal justice
administration system. Therefore, in order to lessen the crime rate in the country, there must be
special emphasis on the efficient implementation of the prevailing directions under the POCSO
Act. Better conviction rates and reduction of pendency of cases as opposed to the death penalty
would act as a better deterrent.

1. https://prsindia.org/billtrack/protection-children-sexual-offences-amendment-bill-2019-0  ↩

2. https://www.lawctopus.com/academike/rarest-rare-doctrine-death-penalty/  ↩

3. Kamta Tiwari V. State of MP, AIR 1996 SC 2800  ↩

4. State of U.P. V. Satish, AIR 2005 SC 1000:(2005)3 SCC 114  ↩

5. Manoharan V. Inspector of Police, 2019 SCC Online SC 1433  ↩

6. Ravi V. The State of Maharashtra, MANU/SC/1368/2019  ↩

7. Supra  ↩

8. Vijay Raikwar V. State of Madhya Pradesh, MANU/SC/0193/2019  ↩

9. Kalu Khan V. State of Rajasthan, MANU/SC/0440/2015  ↩

10. http://prsindia.org/sites/default/files/bill_files/Criminal%20Law%20%28A%29%20Act%2C%202018.pdf  ↩

11. Mohd. Akhtar vs. The State of Jammu and Kashmir, MANU/SC/0807/2018  ↩

12. http://ncrb.gov.in/  ↩

13. Supra  ↩

14. Gregg v. Georgia, 49 L. Ed. 2nd 859  ↩

15. Bishnu Deo Shaw vs. State of West Bengal: MANU/SC/0089/1979  ↩

16. Shiv Mohan Singh vs. The State:1977 AIR 949  ↩