An Open Letter to Swati Maliwal in Protest Against Her Move for Death Penalty for Rape of Minors
November 24, 2017
On the occasion of Children's Day a group of feminist organisations who had sent out a letter earlier to the Delhi CM Kejriwal on this matter, sent a joint letter to the Chief of the DCW protesting against her 'appeal' for death penalty for the rape of minors. The following are the contents of the letter:
Ms Swati Maliwal,
Delhi Commission for Women (DCW),
Dear Ms Maliwal,
We have been deeply troubled by news reports (https://economictimes.indiatimes.com/news/politics-and-nation/will-work-non-stop-to-ensure-death-penalty-to-child-rapists-swati-maliwal/articleshow/61551584.cms) that on Nov 07, 2017, you stated your resolve “to work non-stop till November 14 to ensure death penalty to child rapists within six months.” Further, you have “appealed to the Union Home Minister, Delhi Chief Minister, Lieutenant Governor and Police Commissioner to hold a meeting before Children's Day to prepare a plan for the same.” As you must be aware, women’s groups, women’s activists, and many concerned individuals have repeatedly asserted our staunch opposition to the death penalty on principle, and stood firm against such retributive punishment awarded under the pretext of dispensing ‘justice’.
On the occasion on Children’s Day, we demand that the Delhi Commission for Women and the Delhi government live up to their stated “commitment to implement the recommendations of the Justice Verma Committee on sexual assault which categorically concluded that: 'In our considered view, taking into account the views expressed on the subject by an overwhelming majority of scholars, leaders of women’s organisations, and other stakeholders, there is a strong submission that the seeking of death penalty would be a regressive step in the field of sentencing and reformation'.”
Please find below our collective letter to the Delhi CM dt. October 2015 that seeks an immediate stop to all such efforts to introduce the death penalty. As the Chairperson of the Delhi Commission for Women we urge you to take these serious arguments on board, and follow it up with the necessary steps to put in place systemic changes that can address the complex issue of violence against women and children.
Vani Subramanian, Saheli Women's Resource Centre
Kavita Krishnan, AIPWA
Geetha Nambisan, Jagori
Mr Arvind Kejriwal, CM Delhi
Mr Manish Sisodia, Deputy CM Delhi
Union Home Minister
Mr Arvind Kejriwal
The Chief Minister
On 19 October 2015 we, women’s organizations and concerned individuals of Delhi and the NCR who have been working on a range of issues related to women for many decades were shocked to hear that the Delhi government has constituted a group of ministers (GoM) headed by Deputy CM Manish Sisodia to explore the ‘feasibility’ of introducing death penalty for the rape of minors as well as lowering the age of juvenile offenders from 18 to 15 years by amending the Juvenile Justice Act.
Why the government must not introduce the death penality for rape, even for minors
While we recognize that there is an urgent need to stem the tide of growing violence against women, girls and infants, this is just the kind of knee-jerk reaction this city-state and nation do not need. As a government, you have repeatedly stated your commitment to implementing the recommendations of the Justice Verma Committee on sexual assault. As you are aware, the Committee, after careful deliberations, categorically concluded in their report: “In our considered view, taking into account the views expressed on the subject by an overwhelming majority of scholars, leaders of women’s organisations, and other stakeholders, there is a strong submission that the seeking of death penalty would be a regressive step in the field of sentencing and reformation. We, having bestowed considerable thought on the subject, and having provided for enhanced sentences (short of death) in respect of the above-noted aggravated forms of sexual assault, in the larger interests of society, and having regard to the current thinking in favour of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness, we are not inclined to recommend the death penalty.”
Further, based on a detailed study of international covenants as well as experiences of other countries, the Committee stated: “we do take note of the argument that introduction of death penalty for rape may not have a deterrent effect.” In fact, many independent surveys from across the globe have also been unsuccessful in establishing that executions reduce crime. In fact, an American survey reported by the New York Times in the year 2000 stated that in the preceding 20 years, homicide rates of states with the death penalty were 48 to 100 per cent higher than in those without the death penalty. Global studies have also shown that judges were less likely to convict rapists and sexual assaulters of crimes if the punishment was as severe as death. This is in addition to the fact that the wrongful execution of an innocent person is an injustice that can never be rectified. In trying to introduce capital punishment for rape, your government is working against both the letter and the spirit of the Justice Verma Committee Report.
As women who have staunchly opposed the death penalty on principle, we have always stood firm against this form of retributive punishment awarded under the pretext of dispensing ‘justice’.
A study by The Hindu based on data from 600 cases decided in the District courts in Delhi showed how much still needs to be understood about sexual crimes. Its statistics revealed that rape by acquaintances and family members constituted the largest segment, while rape by strangers accounted for a mere 2% of the crimes we are witnessing. In such a scenario, the death penalty will only make it more unlikely that the survivor will report against fathers, uncles, cousins, family friends etc. This makes the possibility of justice even more remote.
While dealing with cases of sexual assaults, our experience shows that it is not the inadequacy of punishments that is the challenge. The real problem is that the crime is under-reported and rendered invisible. The system of policing and the trials themselves can often work to deter justice, leaving victims without the necessary support to resist the pressures of bribery, intimidation and emotional blackmail. While remedying this situation involves reform at both the level of the police and the courts, what is even more crucial is for the issue of child sexual abuse to come out of the shadows. We must enable children to respect and recognize the boundaries of their bodies and safety and report sexual abuse without fear. For as we have already stated to you in our joint Memorandum dated 27 July 2015 focusing on women’s safety, swiftness and certainty of justice for perpetrators of crime is the only effective deterrent to crime. We are against death penalty for any crime. We demand no impunity for criminals, irrespective of who they are, and complete accountability of the judiciary and law enforcement agencies.
Why the government must not lower the age of junvenile offenders from 18 years
Let us start by quoting the Justice Verma report’s observations on the question of amending the Juvenile Justice Act to lower the age of juvenility in rape cases: “We have heard experts on the question of reduction of the age of a juvenile from 18 to 16 for the purpose of being tried for offences under various laws of the country. We must confess that the degree of maturity displayed by all the women’s organizations, the academics and a large body of thinking people have viewed this incident both in the criminological as well as societal perspective humbles us.” Quoting extensively from international experience, the Justice Verma report concludes, “we are of the view that the material before is sufficient for us to reach the conclusion that the age of ‘juveniles’ ought not to be reduced to 16 years.”
Following the horrific incident of December 16, 2012, there has been public rage against juveniles in conflict with the law, which has been further heightened by statements from politicians and governments trying to demonstrate their commitment to stemming such violence by ‘taking severe steps’. The central government headed by Mr. Narendra Modi has attempted to address this rage by introducing legal changes to reduce the age of juvenility from 18 to 16 years, despite a standing committee’s recommendations to the contrary. Now, in seeking to reduce the age of juvenile criminality further, your government is simply indulging in a competitive bid to appear more tough on crime. To dismiss long jail terms of upto 14 years, especially for minors, as “trifling” is both irresponsible and dangerous. When you cannot imagine measures to reform even a 15-year-old, it raises questions about your vision for the future.
In a country where there is so much hypocrisy and silence around teenage sexuality, you also need to consider the dangers of how such legal measures, as proposed by you, could turn consensual underage sex from a technical crime in the eyes of the law to a crime worthy of hanging.
We urge you stop and consider these issues urgently, keeping in mind what the Law Commission headed by Justice Shah noted in its report on the death penalty: that we as a society must help the families of victims not to see the death penalty as the only fair punishment.
There are other urgent issues that need consideration. Working class parents must have access to crèches/child care to ensure that there are safe spaces available for their children while they are at work. Sexual abuse of children cannot be addressed in isolation from other realities like domestic violence suffered by women, nor can we ignore evidence that indicates deep impact on children who grow up in homes/environments marked by such violence. Survivors of such violence also need structured support to enable and empower them to approach the police and courts. Public campaigns have to be envisaged to educate the wider public about consent, autonomy and the bodily integrity of women and children.
These urgent concerns cannot be addressed by voicing banalities. We urge you to think through these issues and put in place systems that provide safety to both women and children. These are measures well within your powers to implement and we urge you to do so without further delay. The well-being of Delhi’s women and children are at stake, there is not time to lose.
2. Kavita Krishnan
3. Pamela Philipose
5. Partners for Law in Development
6. Vrinda Grover
8. Kalpana Viswanath
9. Indira Jaising
10. Pratiksha Baxi
11. Nivedita Menon
12. Lalita Ramdas
First published in The Invisible Lawyer.
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