Constitutional Castration?

"A murderer kills the body but a rapist kills the soul" - Justice Krishna Iyer

Until 2013, there was a restrictive interpretation of 'penetration' in the explanation under Section 375 of the Indian Penal Code, which acted as an added obstacle to cases of Child Sexual Abuse (CSA). The explanation to Section 375 does not treat forced sexual intercourse by a husband against the wife (above 15 years) as an offence. Section 376(A) of the IPC also has the same reasoning.

The ordinary criminal laws back then were totally inadequate to protect children who were the survivors of sexual abuse, because these sections do not include the common forms of child sexual abuse or their impact on the children. Therefore, 'Protection of Children from Sexual Offences Act' (POCSO) was enacted in 2012 to ensure the "healthy physical, emotional, intellectual and social development of children." This act was widely celebrated by all Indians in the anticipation that the heinous crimes against children will drastically reduce. However, the statistics seem to disagree as between 2012 and 2014 the number of crimes against children have increased from 38,172 to 89,423. What could have led to the significant increase in the number of crimes committed? The punishment under POCSO was not harsh enough to deter people or was it just that more number of cases was being reported?

In 1979, Justice Iyer in the Kunjukunju Janardhanan case, suggested voluntary castration as an alternative to an outright death sentence. Whereas in 1986, the Supreme Court held that a barbaric crime could not be visited with a barbaric penalty as it was violative of the fundamental right to life which is guaranteed to all citizens of India under Article 21 of the Constitution. In April 2011, Additional Sessions Judge, Kamini Lau in the case of State vs. Dinesh Kumar, suggested chemical castration as punishment for rape to a pedophile or serial offender, but again the same was rejected by Justice Verma committee in 2013, as it failed to treat the social foundations of rape. The act of rape is about power and sexually deviant behaviour. On 26th October, 2015, Justice N. Kirubakaran, said in a recent order that castration for child rapists would fetch 'magical' results in preventing child abuse.

Castration as we know has been suggested at repeated intervals as a punishment to rape mandated for incestuous offenders, repeat sex offenders, paedophiles and molesters. But if such a punishment is granted will it actually act as a deterrent?

Under Article 21, Right to Life means the right to lead a meaningful, complete and dignified life. It does not have a restricted meaning. It is something more than surviving or animal existence. Forced castration needs to be opposed because it is barbaric and violative of the rights of the accused and voluntary castration is unacceptable, because an accused in a rape case does not deserve a punishment of his own choice. Whereas, castration of a rape convict undergoing a long sentence would be meaningless and a forced castration at the time of release would amount to punishing him twice for the same offence (double jeopardy), which is unacceptable under Article 20(2) of the Constitution.

However, even if castration is given as a punishment and a law regarding the same is enacted would it not be violative of Article 15 where the Constitution assures that no discrimination should be made only on the basis of sex. In case the offender is a woman will there be any provision implemented which will bear as harsh a consequence as that faced by a man who has been castrated. Just because the offender is a woman will she not be given as harsh a punishment? In the age of progressive jurisprudence, where India is enacting gender neutral laws like POCSO, enactment of such a law would pull us back to where we started from.

Castration as a punishment will be violative of Article 14 as well because such a punishment will only be given to child rapists (recent suggestion to the Union by the Madras High Court). Rape is a crime in general and the legislature has given importance to the survivor's age and made the punishment stricter. Under POCSO if the survivor is under the age of 12, a minimum punishment of 10 years is given whereas if the victim is between 12-18, the minimum punishment granted is 7 years. Such a difference in the punishment with regard to the term of imprisonment is constitutional, as unequals can be treated differently. But giving castration as a punishment it would be too stark for the spirit of the constitutionality of this section. Therefore, I hope the legislature does not pay heed to the barbaric thinking of the Court and include castration as a punishment.

1. POCSO Act, 2012.
2. J Sam Daniel Stalin, 'Allow Castration of Child Rapists, Madras High Court Tells Centre' (NDTV, 26TH October 2015) <http://www.ndtv.com/india-news/allow-castration-of-child-rapists-madras-high-court-tells-centre-1236308> accessed 31st October 2015.