Issue

Context

The recently passed 'Disha Act' in Andhra Pradesh, enables the death penalty for rape and reduces judgement period to 21 working days. There is, in general, a widespread discussion on capital punishment involving sexual offences against women and children.

Background

• Andhra Pradesh Disha Act: Two new laws have been passed by the Andhra Pradesh (AP) assembly; (i) Special Courts for Specified Offences Act-2019, (ii) Criminal Law Andhra Pradesh Amendment Act-2019.

• The new laws, clubbed together as two-part “Andhra Pradesh Disha Act”.

• Disha's case: The Act has been so named as a tribute to the young Hyderabad veterinarian who was horrifyingly burnt after being gang-raped.
  • The victim was referred to as “Disha”, as Indian law forbids public identification of victims of sexual violence.
  • In Disha’s case, there was 'conclusive evidence'. In (CCTV) videos accused can be seen approaching her and taking her aside.
  • The police had first turned away the victim’s family when they went to complain.
  • The police later shot the four accused when they allegedly tried to escape the crime scene. They were there for a reconstruction of events.
• Objective: The new Acts intend to provide tougher punishment and deliver justice to women and child victims of sexual assault, by providing for quick trial and judgement. 
  • These tough legislations are intended to act as a deterrent for crimes against women and children. 
• Special Courts for Specified Offences Act-2019: Specified Offences against Women and Children Act, 2019, allows exclusive special courts in each district to address crimes against women and children. The state cabinet approved setting up of Special Courts in each of 13 districts.
• Changes made to CrPC and IPC: In regard to Disha Act, sections 39, 173, 309, 374, 376, 376D and 377 of CrPC were amended.  Sections of IPC were amended to include the death penalty as the most severe punishment for rape cases. 
  • New sections 345E, 354F and 354G were inserted in IPC, dealing with, online abuse, child sexual abuse and aggravated sexual assault on children, respectively.

Analysis

Andhra Pradesh Disha Act of 2019

• Death penalty in case of 'conclusive evidence': There will be an exclusive death penalty for rape crimes where "adequate conclusive evidence" is available.
• Increased punishment for crimes against children: For crimes against children, offenders can face 5 to 7 years in jail and the term can be extended to life based on the severity of the crime under the Protection of Children from Sexual Offences (POCSO) Act.
• Punishment for online harassment: Those found guilty of harassing women online through email, social media or any digital mode will be punished with imprisonment extending to two years on a first conviction, and four years on second and subsequent convictions.
• Reduced period for investigation and judgement: The new laws give police 7 days for investigation, and to judiciary 14 days for trial.
• Reduced verdict period: The trial has to be completed within 14 days, and the verdict has to be pronounced within 21 days.
• Reduced disposal period: Period allowed for disposal of appeal cases has been reduced to from six months to three months. 

• The appeal period has been cut to 45 days from six months. 

• Special courts: These courts will take up cases of rape, gang rape, acid attacks, stalking, voyeurism, sexual harassment, and cases under the Protection of Children from Sexual Offences (POCSO) Act.
  • Judicial officers: The State government shall nominate the Judicial officer and also appoint a special public prosecutor, preferably a woman, to conduct trials. 
• Special police team: Government will constitute District Special Police Teams in all districts, headed by DSP for investigation of offences related to women and children. 
• Women & Children offenders registry: Government will establish, operate and maintain a register of women and child offenders in electronic form. This registry will be made public and will be available to law enforcement agencies. 

Retributive justice Retributive justice is a system of criminal justice based on the punishment of offenders rather than on rehabilitation. It is a theory of punishment that when an offender breaks the law, justice requires that he or she must suffer in return. It also requires that the response to a crime must be proportional to the committed offence.

Arguments in favour of Disha Act/death penalty

 

• Justice delayed is justice denied: Like in case of Nirbhaya, the Nirbhaya Act was brought soon after the incident in New Delhi; but today even after seven years, the guilty in the case have not been handed over punishment.

• In case of delayed delivery of justice, the victims/victim's family feel that justice has been denied to them. 

• Strong deterrent: There is a dire need for laws to be amended to create a stronger deterrent for crimes against women. Implementation of such laws should be equally efficient. It will create an environment against casual pursuance of heinous crimes against women. 
• Governmental obligation in case of 'conclusive evidence': In cases where there is conclusive evidence against the accused; for example, the CCTV videos in case of Disha, the role of the government, police and judiciary becomes even more questionable.
  • Conclusive evidence cannot just be ignored by the government. 
• Crimes against women in India: According to NCRB 2017 report, a total of 3.6 lakh cases of crimes against women were reported in 2017. This number has only increased and crimes against women are on the rise. 
  • India has a terrible image for being rape capital of the world. 

Criticism against Disha Act/Death penalty 

 

• Small window for investigation: According to legal experts it is difficult for the investigation to be complete in seven days. In a system where conviction rates are already poor, a time-bound investigation can worsen things.

• Such a rushed trial makes a mockery of both; due process and idea of deliberative justice.

• Lack of adequate resources: Currently the Indian justice system does not have requisite policing and detective resources to finish the investigation in such a short frame of time. 
• Legally-sanctioned encounters: Some critics have referred to the Act as a 'legally-sanctioned encounter' where suspects would be sentenced to death without allowing enough time to gather and assess the evidence at hand.
• Guided by the bad reputation of the judiciary: Given such a short frame for investigation of cases, the police may not consider it necessary to process the cases to the judiciary under the perception that legal institutions are ill-equipped to deal with such crimes.
• Guided by public outcry: Till date, there is no law in force in India that authorises the police to kill. The demand for instant killing of the accused from all corners creates a public opinion for the abandonment of the rule of law. 
  • It may lead to situations when AP police shot the four accused in Disha case.
  • Extra-judicial killing: Plea of self-defence by police cannot be used to rationalise a targeted, premeditated killing of suspects in custody.
• Retributive justice may not be the way: Ascribing to retributive justice may not be the way to go in a democratic country like India which has a historical legacy of resisting violence in fundamentally non-retributive ways. 
• Salwa Judum case 2011: The case laid a constitutional precept that no wielder of power can be allowed to claim the right to perpetuate the state’s violence against anyone.
• When the accused are powerful: Many times the police officials refrain from filing an FIR, especially when the accused are socially/politically powerful. Victims can face cross-examination about their past sexual histories.
  • Powerful accused often attempt to quash charges or shift the trial to a friendlier city, making a mockery of fast-track cases.
  • ‘Tough’ criminal laws often target weaker sections. 
• Chances of murder/increased violence: Once it is clear that death penalty is highly probable in rape cases, it may have opposite impact – instead of acting as a deterrent, it could lead to perpetrators making sure the victims are left dead or in no state to make a complaint or recognise the perpetrators.
  • It hasn't yet been established that the death penalty is a sufficient deterrent to sexual offences. 
• Reduced reporting: In a large number of rape cases (6% of cases in 2016), the accused is known to the victim. Given that scenario – say the accused is an uncle – having the threat of death penalty may make victims less likely to report cases of sexual violence, or even face increased pressure from their families to keep the matter to themselves.
• Prefer adopting non-legal ways: Stringent laws may not always be the answer to solving the issue at hand, in this case, crimes against women and children. Legal provisions can be misused or not implemented at all, and they do nothing to solve the root of the problem.
  • The mindset which leads to crimes against women can hardly be addressed with stricter laws. There is a need for ground-level changes.
  • Justice Verma Committee report acknowledged the same and recommended improving the status of women in non-legal ways.

NLU report on Death Sentence Recently, the fourth edition of ‘The Death Penalty in India: Annual Statistics’ was published by Project 39A of National Law University (NLU), Delhi. Increase in a number of death sentences relating to sexual offences: The report states that a higher number of death sentences awarded in recent years relate to cases of sexual offences. In 2019, it was the highest in past four years. Trial courts: Percentage of sexual offences in death sentence cases increased from 41.35% in 2018 to 52.94% in 2019. High Courts: 65.38% of cases of confirmations of death sentences involved sexual offences along with murder. Supreme Court: In 2019, the SC dealt with 27 capital punishment cases, the highest number since 2001.

Conclusion and Way forward

Even though the Act is well-intentioned, it is unlikely to meet its intended purpose and could do more harm than good. Heinous crimes against women shaken the conscience of the nation. But speedy trials may not be all that is needed to resolve the issue. While it plays an important part delivering justice to the aggrieved party, a more socio-cultural approach may be needed to get to the root of the problem; like providing post-traumatic therapy to the aggrieved party, and creating an overall women-friendly environment at homes, workplace, judiciary and legislature. Finally, there is no doubt that the anguish or outrage of people in the aftermath of horrific crimes is justified. But there is a need to keep in sight of the rule of law and constitutional tenets.