On April 30, 2011, an Additional Sessions Judge of Delhi currently posted at Rohini courts, Dr. Kamini Lau while convicting a person for raping his minor stepdaughter and awarding him rigorous imprisonment for ten years took the opportunity for calling upon the need for a full public debate with regard to imposition of Castration (both surgical and chemical) as an alternative punishment for the offence of Rape and Molestation. Terming the same as crying need of the hour, she even directed that the copy of her instant order be sent to Union Law Ministry, National Commission for Women and Delhi Commission for Women.
Although there may be a difference of opinion in legal circles whether a Judge of a subordinate/trial court while dispensing justice can make such an observation as such kind of ideas are usually mooted by Judges of the Supreme Court or High Courts which is referred as obiter dicta , one thing is crystal clear that there is an urgent need for thorough re-appraisal of prevalent laws relating to Rape and Sexual Assault/Molestation. Hence without going into the question whether Dr. Lau exceeded her authority, it is incumbent on our law makers to take serious cognizance of the issue in question without any delay.
There is no denying the fact that sex crimes are different from other crimes. Sex involves the most personal and private aspects of people's life. In recent years, we all have witnessed a spurt in rape, molestation and other sexual offences. It is highly unfortunate that the women, particularly, young girls of today are not considered safe anywhere especially in big metro cities. Hardly any day passes when we don't read or watch news report of any rape or sexual assault incident both in print or electronic media. The stringent punishment provided for such heinous crime appears to have virtually no deterrence on offenders who continue to violate the law with impunity.
As per the figures contained in latest available edition of "Crime In India" pertaining to year 2009, a report which is brought annually by National Crime Records Bureau, although charge-sheeting rate in respect of rape/molestation cases against women is over 90 per cent, the conviction rate is highly dismal, presently standing at below 30 per cent. Of course, this figure excludes a large chunk of unreported incidents as a whopping number of victims of such crimes prefer to keep mum either owing to fear of mental or social trauma coupled with lack of family support or else because of criminal intimidation by alleged offenders.
The process of surgical castration, called orchiectomy, involves the removal of the testes, which are the source of testosterone or the male sex drive. The idea behind the procedure is that once the testes are removed, the resulting loss of testosterone will eliminate sexual desire and the ability to respond the sexual stimulus. On the other hand, use of harmone suppressors also known as chemical castration requires regular injections of a testosterone-sapping hormone called Depo-Provera. Originally developed as a women's contraceptive, Depo-Provera drastically reduces the sex drive when used on men and limits their fertility. The subject will experience a decrease in sex drive and a reduction in sperm production, erections and ejaculation. The goal of Depo-Provera is not to create impotence or infertility but to create "erotic apathy", thus making the subject lack interest, if not capacity, to have sex.
California was the first State in the United States to specify the use of chemical castration as a punishment for child molestation. California amended its penal law to include the provision for chemical castration in September, 1996. The law became effective in January, 1997. It was a result of society's anger towards repeat offenders and the previous law's inability to protect victimized children. While the court has discretion to impose chemical castration as a condition for parole for first time offenders, it is a mandatory condition for parole for repeat sex offences against children under thirteen. Montana was the next State to pass such a law in April, 1997. Besides these two, there are seven other States viz. Florida, Georgia, Iowa, Louisiana, Oregon, Texas and Wisconsin which have such a law in place.
Poland had passed a legislation for forcible chemical castration for child molesters coupled with psychic treatment during the term. Germany and Israel are other examples of developed countries where voluntarily chemical castration is a punishment for child rapists. Similarly, Madoza, a province in Argentina passed a law in March, 2010 which rules the use of chemical castration for rapists but they must voluntarily go for it. Now since castration for sexual offenders has been operative for over a decade and a half in different countries, it is imperative for India too to explore such a system in place.
In March 2010, the Ministry of Home Affairs uploaded the draft Criminal Law (Amendment) Bill, 2010 on its official website perhaps for obtaining feedback from the civil society. The Bill, inter alia , tends to substitute the word "Rape" with "Sexual Assault" in newly-drafted section 375 of the Indian Penal Code (IPC). Further it also proposes to cover the cases of penetration by a man (either by any part of his body or by any other object manipulated by him) into the anus, urethra and mouth of any woman in addition to hitherto regarded penile-vaginal penetration. Then it raises the age of consent for sexual intercourse both for a married as well as unmarried girl/woman to eighteen years in lieu of present law which stipulates the same at sixteen and fifteen years, respectively .
Although the Bill can be broadly seen in tune with the recommendations of 172 nd Report of Fifteenth Law Commission of India ( March, 2000) on the subject relating to Review of Rape Laws except on one aspect i.e. the Report had recommended making the offence of "Sexual Assault" gender-neutral phrase. Be that as it may, at least an initiative has been taken by the government almost a decade after the aforesaid report. It is hoped that the Bill is soon tabled in the Parliament and expeditiously enacted into law so as to effectively address and tackle the contemporary dimensions of sexual assault which have undergone drastic variations in recent years.
However, the incumbent UPA-2 government deserves applause for tabling the much awaited Protection of Children from Sexual Offences Bill, 2011 in the Rajya Sabha during this year's Budget Session. The Bill is aimed at protecting children from offences of sexual assault/harassment and pornography along with provision of special courts for trial of such offences.
At the outset, it can be concluded that although the suggestion as made by Dr. Lau regarding the introduction of castration (surgical or chemical) as an alternative punishment for serial sexual offenders looks too harsh on face apparent but at the same time everyone would agree that current law(s) have failed miserably in curbing ever increasing instances of rape and sexual assault/molestation throughout the nook and corner of our country especially against hapless minor children. The punishment for such heinous crime(s) should be at least of such a degree so as to act as a strong deterrent for others.
It is highly hoped that the UPA dispensation would kick-start a wider public debate on the subject. Simultaneously, the Law Commission of India ought to take due notice of the issue either suo motu or else after formal reference by the government. After taking the viewpoints of all stakeholders viz. the jurists, feminist groups, social organizations and notably the legal fraternity coupled with thorough analysis of its possible fallouts upon our society, the Commission should come out with its comprehensive report over this vexed issue at the earliest.
INPUTS FROM HASAN KHURSHID
Talking to 'Lawyers Update', noted jurist Fali S. Nariman said, " My instinctive reaction is to applaud what has been recently recommended by a Delhi Court. The punishment recommended does fit the crime. The horrendous offence of rape debases and stigmatises the victim as almost no other offence. It has been proved that a long term of imprisonment is no deterrent. Something more drastic is definitely required to put the fear in the perpetrator. I would have no compunction if a court is empowered, whilist convicting an accused person of the offence of rape, to impose a punishment that is as hurtful and as traumatic as the accused has inflicted on his victim! If you say this is uncivilised, my answer is: so is the death penalty for murder."
Another noted lawyer, Priya Hingorani, partially agreed with Nariman, saying, " I approve this idea with conditions that it should be prescribed for rapists of minors, serial offenders and gang rapists. Moreso, the trial courts should not be empowered to pronounce castration. It should be confirmed by High Courts. All rape cases should be fast tracked and full protection should be provided to the victim, as in the result of delay in trial, accused persons start putting pressure on the victim to hush up the case. The message will go down and such stringent provisions will act as deterrent."
Sharply reacting to the views of Nariman as well as Hingorani, Dr. Rajat Mitra, Director, Swanchetan Society for Mental Health, and rape victims Counsellor, said, " I consider it a barbaric act from stone age. I do not see how it is going to deter anyone from raping a woman. It is only going to make the rapist cleverer and think of killing the victim so she can not identify the offender in police station or courts. It can lead to miscarriage of justice. Rape is one crime where there are many false allegations and some serve a prison term without their having committed it. Such a punishment seems barbaric when seen from this perspective. The whole world today is thinking of alternatives to retributive justice in order to bring reforms in criminal justice system and this seems really retrograde."
To know the facts on ground level, 'Lawyers Update' talked to Inspector Surender Jeet Kaur, SHO, Police Station Kamla Market, Delhi, who has been instrumental in rescuing minor girls from brothels in her area. Inspector Kaur said that where is the need for castration when so many stringent provisions are available ranging from life imprisonment to capital punishment in certain cases. The problem is not with the quantum of punishment, it is more than enough provided it is pronounced soon without lapse of time. The problem is with the implementation of the process of law. We need fast track courts, with one or two appearances of the victim, that too through video conferencing. Statement of the victim under section 164 should be given due weightage. Repeated appearances of the woman victim is not practically possible. The embarrassing cross examination and trauma of prolonged litigation suffocates, humiliates and frustrates the victim. At times she is threatened or persuaded by the offender and finally gives up by abstaining to appear. The accused gets benefit of doubt under such circumstances and goes scot-free. Hence, amelioration of the existing process of law in rape trials is the answer to the nightmarish problem.