Law on "Death for Rape" under POCSO Act

The growing number of rape cases across the nation, especially sexual offenses against children, had created a strong sense of frustration among the people, demanding swift and stringent action by the government to curb this menace. The public outcry, especially that which followed the gruesome Unnao and Kathua gang rape and murder case, led to the government introducing an amendment to the Protection of Children from Sexual Offenses (POCSO) Act, 2012 which received the nod of the parliament and was notified in 2019.

The most notable change brought about by the amendment was the introduction of the death penalty for certain crimes under the POCSO Act. Along with the death penalty, the amendment further enhanced the punishments already provided under the act for various sexual offenses against children covered by it. Thus, the general theme across the amendment was to strategically further enhance the penal provisions of the act, thereby creating a sturdier deterrent effect. The POCSO Act now under Section 6 provides for the death penalty, which states:

6. Punishment for aggravated penetrative sexual assault

(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of the such victim.” Pertinently, the act as it stood prior to the amendment awarded the punishment of rigorous imprisonment for a term which shall not be less than 10 years but which may extend to life imprisonment for the above offense of aggravated penetrative sexual assault.

The motive behind the amendment

The statement of objects and reasons of the amendment of 2019 speaks of the growing incidents of child sexual abuse in the recent past where an inhumane mindset of abusers has been witnessed in horrid crimes across the nation. This formed the primary reason for bringing in capital punishment through the amendment, and the statement gives an insight into the minds of the legislators while deciding to introduce the death penalty to the POCSO Act. The statement further makes reference to the landmark judgments of Machhi Singh vs. the State of Punjab and Devender Pal Singh vs. State (NCT of Delhi) passed by the Hon'ble Supreme Court which lay down the law regarding the death penalty as a punishment in our criminal justice system. The Hon'ble Supreme Court in the above landmark judgments has outlined the legalities of the death penalty, its sentencing framework, and the cases which qualify for capital punishment. The above precedents discuss the principle of rarest of rare cases for the imposition of the death penalty and how to identify it. In the Machhi Singh case, the court stated that the death penalty is handed out when the collective conscience of the people is so shocked that the judicial powers are expected to inflict the death penalty. The above cases further discussed the guidelines to be adopted while awarding the death penalty and detailed the meaning of rarest of rare.

Thus, while amending the POCSO Act, the legislators took a cue from the above landmark judgments on capital punishment and came to the conclusion that the gruesome sexual crimes being carried out against children could fall under the scope of rarest of rare cases and decided to empower the judiciary to hand out the death penalty under appropriate circumstances for cases registered under the POCSO Act. Since the amendment to the POCSO Act in 2019, the Indian judiciary has already come across cases wherein the courts have been called upon to consider awarding the death penalty in cases of sexual abuse against children. Thus, as a direct result of the amendment to the POCSO Act, the year 2019 witnessed the highest number of death sentences being awarded for rape-murder charges in the past 4 years since 2016. In the High Courts of India in 2019, awarded capital punishment in 26 cases, of which 17 were related to sexual offenses.
 

The death penalty cannot be awarded retrospectively for a crime committed before the amendment

Although the amendment has been notified and as discussed above, death penalties have already been awarded in cases under the POCSO Act in courts across the nation, however, the Supreme Court in a recent judgment held that the death penalty cannot be awarded retrospectively. The present ruling came about in the case State of Telengana vs. Polepka Praveen, a case where a man was accused of raping and murdering a 9-year-old minor in Telangana just two months prior to the amendment coming into force, wherein the Supreme Court refused to award death penalty stating that the law cannot be granted retrospective effect. The criminal justice system in India is continuously evolving to keep up with the ever-changing need of the hour and the amendment to the POCSO Act is a step in this direction to combat the menace of child sexual abuse. With this dynamic in mind, people should always consult an expert criminal lawyer when faced with legal issues such as those discussed hereinabove. A criminal lawyer can help understand the intricacies of the law and the best advice in any given situation, should it ever arise. You can also ask a lawyer online a free legal question using LawRato's Ask a Free Question service.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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