SC wants Harsher Punishment for those convicted of raping, abusing children; refuses to order Castration [Read Order]

The Supreme Court today asked the parliament to consider making a separate law for awarding harsher punishment to those convicted of raping, molesting or sexually abusing children in any manner.

“At present the language in law in women below the age of 16. But these days children between the age of two and ten are increasingly becoming victims of sexual abuse. The parliament may think of re-defining the term child and impose further rigorous punishment to those involved in sexual abuse of children”, a bench headed by justice Dipak Misra said.

The court however refused to direct the Centre to consider castration as an additional punishment for child sex abusers and child rapists after Attorney General Mukul Rohatgi who had been specially called in for the hearing said the court could not specify a punishment. “The court cannot enter into it which is the realm of the parliament. We leave these matters to the wisdom of the parliament Even otherwise the court cannot prescribe a particular punishment for an offence”, the judge told senior lawyer Mahalakshmi Pavani who appeared for Prerna Kumari, the General Secretary of petitioners Supreme Court Women Lawyers Association.

“We are concerned about the situation and understand your sentiments. But a law cannot be based on emotion or sentiments… there has to be some rationale. So it is not easy to order castration”, the bench told them.

The court asked the Centre why no particular sentence was prescribed for those committing sexual assault on children while special care was taken regarding sexual intercourse by husband with wife during separation (376 B), sexual intercourse by a person in authority(376C ), gang rape(376D) and punishment for repeat offenders (376E) when rape laws were amended in 2013.

Amidst concern over rise in incidents of sexual assault on children across the country, the public interest litigation has been filed by women lawyers for the first time before the Supreme Court on December 27 demanding castration of those convicted of child sex abuse.

Its General Secretary Prerna Kumari prayed to the apex court to “Issue writ, direction or order to the respondent No.1 (Law Ministry ) to consider to impose castration as an additional punishment for child sex abusers and child rapists” ,

It added: “Issue writ, direction, or order to the respondent No.2 (Ministry of Women and Child Development) to frame guidelines in regard to the protection of the children from sexual abuse and impose castration as an additional punishment for the rape of the minor girls to protect their constitutional rights”.

“The Protection of Children from Sexual Offences Act brought in specially to combat such offences in 2012 has failed to prevent sexual assault on minors as the punishments provided therein is nothing different than general punishment provided in Indian Penal Code” the SCWLA said in its plea.

Quoting National Crime Records Bureau figures, the SCWLA PIL said a child is abused every 30 minutes in India. The country witnessed a 151 per cent increase in child rapes in five years. (5,484 in 2009 to 13,766 in 2014). It is to be noted that in October this year the Madras High Court asked the centre to think about castration as a punishment for those who rape children in order to deter sexual assaults on minors.

Justice N Kirubakaran had acknowledged its recommendation could seem “barbaric, retrograde, stone-aged and inhuman” but said traditional laws were not enough to cope with such crimes.

“The Madras High Court judgment itself speaks that between the year 2012 and 2014, the number of these crimes had increased from 38,172 to 89,423 i.e. more than the double and this is alarming”, said the petition.

SCWLA said the PIL was triggered by the recent shocking incident in Bulandshahar district of Uttar Pradesh where a 28 day old baby girl was raped on December 6, 2015. It also cited gang rape of two minors in Delhi in the second week of October.

“This court is sure that additional punishment of castration of child rapists would fetch magical results in preventing and containing child abuses,” the Madras HC judgment had said.

The judge had noted that several countries like US, Poland, Russia, South Korea, Indonesia, Russia, New Zealand and Argentina have introduced castration to deal with child sex offenders.

Madras HC was not the first to demand castration. In 2011, a Delhi sessions court judge Kamini Lau while suggesting chemical castration as punishment for rape had called for a nationwide debate on the issue. The judge had suggested the measure as an alternative sentence to imprisonment.

"The Indian legislatures need to address the issue with all seriousness by exploring the possibility of permitting imposition of alternative sentences of surgical castration or chemical castration, particularly in cases involving rape of minors, serial offenders and child molesters or as a condition for probation, or as an alternative sentence in case of plea bargaining." The judge had said.

But in 2013, the Justice Verma committee rejected the demand for castration noting the punishment “fails to treat the social foundations of rape.”

Justice Verma also said it would be unconstitutional and inconsistent with human rights treaties to expose citizens to the potentially dangerous medical side effects of castration without their consent.

The PIL raised the following four questions of law:

1) Whether at a time when U.S.A. and other countries have implemented castration as punishment for rape of minor children, should our country also implement the same as an additional punishment in view of the fact that the crime against the children in this country has risen from 38,172 in the year 2012 to 89,423 in the year 2014?

2) Whether the Supreme Court could invoke the PARENS PATRIAE jurisdiction to raise its voice for the protection of human rights of the children as a GUARDIAN, who are brutally raped, sexually abused and many a time killed also?

3) Whether the present laws in our country including The Protection of Children from Sexual Offences Act, 2012 has failed to deter the offenders from committing the crimes against these angels because the punishments provided therein is nothing different than general punishment provided in Indian Penal Code?

4) Whether the castration can put fear in these offenders to stop these horrible blood-curdling gang rapes of children in various parts of India?

Read the order here.