By Abhishek Jha:
While dismissing the petition of a British national, an accused in a case of child sexual abuse, Justice N. Kirubakaran has suggested that the Central government consider castration as a punishment for child sexual abuse. He observed in his judgment that “though the castration looks barbaric, barbaric crimes should definitely attract barbaric models of punishment.” He made the suggestion, he said, because he found that the law is ineffective and incapable of addressing the menace.
The demand for such measures of incapacitating the perpetrator of rape arise from the belief that rape is the result of a heightened libido. Such suggestions are part of the same patriarchal belief system that links rape with women’s dress and movement beyond a fixed hour. However rape, as Justice Verma Committee also noted, has more to do with establishing power over the victim. Castration, then, has little bearing on curbing of physical violence on women or children.
The HC judge also seems to have misplaced sense of how deterrence works. He assumes that a terrifying punishment would instill fear in a potential offender and stop him from committing the crime. However, it is not the knowledge of the punishment that deters criminals but the presence of a criminal justice system. People who sexually abuse children today do not do so because they don’t fear a smaller punishment. They do so because they feel confident – in the patriarchal atmosphere of the country – that the crime will not be reported and that there is even lesser chance of a conviction.
The failure of the law in curbing child sexual abuse, at which the judge expresses exasperation, stems from views not very different from that of the judge himself, who is reported to have said that women were equally responsible for rape. This is because in a large number of cases the rape accused or someone accused of child sexual abuse is either a relative or someone who is otherwise known to the victim. NCRB data for the year 2014 shows that in as much as 86% of cases of rape, the accused was known to the victim. What stops the victim from reporting the crime is the stigma inflicted upon them by our society. Reports of the police failing to register complaints are also commonplace. It is our patriarchal norms and their institutionalised manifestation in our police system that fail our efforts at deterring possible offenders.
These arguments should be sufficient to quell any doubts that we need such a punishment. However, Union Minister Venkaiah Naidu chose – perhaps just for the heck of it – to laud the judgment. Therefore, before more such suggestions are made, Justice Kirubakaran should note that it is not only activists who would disapprove of the judgment. He failed to notice that his suggestion may not be commensurate with the recommendations of the members of the judiciary itself. The Justice Verma committee, comprising of two retired justices and advocate Gopal Subramanium, constituted to look into the possible amendment in criminal law related to sexual violence, had rejected the suggestion of using castration as a punitive measure. Noting Article 7 of the International Covenant on Civil and Political rights, the committee had said, “it would be unconstitutional and inconsistent with basic human rights treaties for the State to expose any citizen without their consent to potentially dangerous medical side effects. For this reason, we do not recommend mandatory chemical castration of any type as a punishment for sex offenders.”The castration-style of judgment is the very antithesis of justice, which assumes that in replying to barbarism with barbarism, in revenge, the ends of justice will be met. Such measures, on the contrary, tactically erode the responsibility of rehabilitating the victim as an important aspect of justice, an aspect highlighted by both the Law Commission and the Justice Verma committee. They are not only unnecessary but also dangerous.