ANALYSING THE LEGAL DIMENSION OF CASTRATION AS PUNISHMENT FOR RAPE IN INDIA

Kritika Mishra

ABSTRACT

Rape is one of the most common and under-reported crimes in India is carried out in different ways and cuts many social structures also. The individuals who perpetrate such crimes are normally feral people showing the tendency in committing rape. Instead, its focus is almost exclusively on women, yet in armed conflicts across the world, sexual violence is also perpetrated against men. The example of torture demonstrates the current weaknesses in the relevant provisions for acts of sexual violence generally, and acts of sexual violence committed against men specifically.

The punishment for Rape in India is mentioned under Section 376 of the Indian Penal Code,1860, which says that the offender shall be punished with imprisonment for not less than 7 years, which may extend to life. The current laws are ineffective in stopping such heinous crimes in India and the punishment for imprisonment alone has proven ineffective in bringing change in the wrongdoing of the offender. And it was also proven that the offenders getting released after serving the term of their punishment were found committing such heinous crimes again.

Human castration as a punishment for rape in India is where the dilemma arises, some jurists and human rights activists argue that castration is proportional to rape and even if it is not it will act as an example in society. The opposing view is that human castration as a punishment is going to be harsh, irrespective of the crime committed. In India, human castration is considered an anti-rape law, as it violates Article 21 of the Indian Constitution. Castration destroys human dignity, breaches the right to privacy, and attracts the cruel and unusual punishment clause.

Is castration is the only means to punish the offender or it is a means of rehabilitation and treatment? Jurisprudence on this issue needs more consideration along with the penology of rape.

The voices raised for castration for the punishment of sex offenders came out after the Delhi Gang Rape Case in 2012. Thus, in this paper, there is also discussion on Voice in favor and against Human Castration.

Keywords- Castration, Rape, Sex offenders, Perpetrate, Penology.

Introduction

Sexual offenses like rape comprise an altogether different kind of wrongdoing which is the outcome of an unreasonable brain. The individuals who perpetrate such crimes are normally feral people showing the tendency in committing rape. Rape is a crime of brutality, frequently viewed by the women as a life-threatening act wherein far and humiliation is her dominant emotion. It is an assault on the woman, her family as well community. Sexual violence, particularly rape is a global problem that does not spare any socio-economic group or culture, especially among adolescents and young adults. Sexual assault is a neglected public health issue in most developing countries.

Castration can be defined as a medical process that completely decreases the sexual urge of a person irrespective of gender. There are two types of castration in the medical field- (a) physical castration (b) chemical castration. Physical Castration- it involves the removal of testicles of a person through surgery. Chemical Castration- it involves injecting chemicals called hormone suppressors so that it will reduce the level of testosterone.

Castration is usually looked at in a very negative light in modern society. Germany is infamous for legalizing castration as a punishment for rape throughout the country and the few states in the US like California and Florida have legalized the same. But all the governments continue to use the punishment sparingly. And another thing that is highly disapproved by modern society is rape.

This whole article deals with the deep details of the pros and cons of castration as an entire structure of dispensation of justice needs an overhaul, otherwise, the victim shall no longer be the women alone, but the humanity at large.

Voices in favor of castration

“You Can Tell the Condition of a Nation by Looking at the Status of its Women”

-Jawaharlal Nehru

In a democratic country why we cannot be driven by retributive theory an eye- for –an-eye passion? And the prominence should be on the increase in the rate of conviction not only on the severity of punishment.

Rape is one of the most common and under-reported crimes in India and is carried out in different ways and cuts many social structures also. There is also a classification of rape for instance- landlord-rape, caste rape, rape by those in authority, rape of minors, police rape, army rape, etc. There are also rapes that are not recognized by the Indian Legal System such as marital rape and rape of sex workers. After the agitations in the 1980s custodial rape were the result of amendments in the rape laws (Section 375 IPC). The classifications also suggest that along with sexual violence, rape constitutes an exercise of using power over the other person. This power rest on the various social structures of caste, class, authority of the state and also deals in the patriarchal notions of the society.

The voices raised for castration for the punishment of sex offenders came out after the Delhi Gang Rape Case in 2012. And the draft bill was also proposed to the Justice Verma Committee for the strengthening of laws to punish the sexual offenders and also included the punishment of castration of rapists in rare cases. And according to the report at that time Vice President of India Venkaih Naidu also states that “maximum punishment to rapists, death penalty or emasculation”[1] and the National Commission for Women chairperson Mamta Sharma said that the offenders should be chemically castrated so that they “stay alive with a vital part of their body dies.”

In India, it often takes years or decades for a court to decide the legal cases including rape cases and this bill would lead to fast track all the rape cases so that they may be settled within 3 months. After the Delhi rape case, there was also an amendment to the Juvenile act and the bill seek to reduce the age limit of juvenile’s i.e.18-16.

Judicial views for castration as punishment

The commotion for considering castration as discipline for rape has been developing with increasing episodes of sexual wrongdoing. Judge Kamini Lau's remarks will undoubtedly increase the discussion.

Additional Sessions Judge Kamini Lau is of the view that as "an alternative punishment castration of rapists is the crying need of the hour" and has required a public conversation on the issue. Granting a 10-year jail term to Dinesh Yadav, who had consistently assaulted his 15-year old stepdaughter, Lau communicated her disappointment over the nonattendance of a law permitting courts to punish rapists and molesters with castration.

The judgment refers to instances of surgical and chemical castration as a discipline given under the law in several developed countries and communicates disillusionment that Indian officials are "yet to address the issue with all earnestness. “The court has marked a copy of the judgment to the Union ministry of law and justice so it observes the issue and opens a public discussion on castration for possible punishment in such cases.

Lau also highlighted that the court knew about the challenges and the issues the usage of such a law may confront. "I am not careless of the way that contentions will undoubtedly be raised against the above by certain rights activists however that in my view would be sheer bad faith given the damage the rapist and sexual stalkers do to their casualties," Lau said. "jurists the world over are unified in their view that chemical castration is needed to be ordered for depraved wrongdoers, repeated sex offenders, pedophiles, and molesters."

Noted jurist Fali S Nariman supported the idea mooted by the ASJ and said:

[M]y instinctive reaction is to applaud what has been recently recommended by a Delhi Court. The punishment recommended does fit the crime. The horrendous offense of rape debases and stigmatizes the victim as almost no other offense. It has been proved that long-term imprisonment is no deterrent; something more drastic is definitely required to put the fear in the perpetrator. If you say this is uncivilized, my answer is, so is the death penalty for murder.[2]

Justice N. Kirubakaranfrom the Madras High Court has suggested that the Central government consider castration as an additional form of punishment for child sex abusers.[3]"At the point when the law is inadequate and unequipped for tending to the danger, this court can't keep its hands fold and stay a quiet onlooker, unaffected and absent of the ongoing happenings of shocking blood-coagulating rapes of kids in different parts of India," Justice N. Kirubakaran said in an ongoing request. He said castration for child rapists would bring magical results in preventing child abuse. He also guided the Union government to choose to present mandatory sex education for high school students. "Denying youth’s right and logical data would lead [them] to get silly and wrong information from different sources, similar to Internet, friends, and movies, creating misconception and doubt."

Observing the number of instances of abusing youngsters, the judge referred to the International Child Protection Certificate (ICPC) developed by the United Kingdom to secure kids and said the visa form gave by the Indian Embassy must be revised with the arrangement of a segment requiring the candidates to give the details of convictions, activities justifying condemns and looming cases.

Voices against Castration

The above conversation brings up certain appropriate issues with respect to the materialness of such a law in India. While the goal of the ASJ in making such a proposal is admirable, yet, simultaneously it is presented that this type of punishment is an appearance of a backward standpoint. In the event that such a law is made it would not be a sound law for various reasons:

Firstly, the contention of castration as a punishment for rapists depends on the reason that penetration is the main method of committing a rape. It disregards different ways in which rape can be committed. The Criminal Law Amendment Bill, 2010 looks to extend the meaning of rape. If the aforementioned amendment is affected, at that point such a law would lose its importance, as it is in opposition to the meaning of rape as visualized in the correction.

Secondly, Castration as a type of punishment can't be supported, if a sexually impartial law is sanctioned on the grounds that ladies can't be castrated and in the event that maiming is prompted distinctly for men, at that point the law would most likely fall as it would be violative of Article 14.

Thirdly, Forced Castration is brutal and isn't similar to the privileges of the prisoners. It is advantageous to take note that the Supreme Court in its different decisions has acknowledged that prisoners are likewise qualified for fundamental rights.

In India, human castration isn't permitted as a punishment for rape, regardless of how grievous the demonstration is, as it is viewed as violative of Article 21 of the Indian Constitution, "Right to Life". The Universal Declaration of Human Rights and Article 21 both, get the right to live with nobility under the ambit of the right to life.

Justice Verma Committee report on Criminal Law

The Justice Verma Committee report on Criminal Law (the committee was constituted after the brutal Nirbhaya gang-rape case in December 2012 in Delhi) recommended a wider definition of rape to include “any penetration of a sexual nature”. Further, the report said that the death penalty for sexual offenses should be abolished, and instead should be replaced by stricter punishments and enhanced sentences.

The report rejected the proposal of chemical castration made by women’s groups and other stakeholders. The report said that the act of chemical castration would have been unconstitutional and a violation of basic fundamental and human rights.[4]

It will violate human rights treaties such as the International Covenant on Civil Political Rights, which bars cruel and unusual forms of punishment. In other jurisdictions, it is done with the offender’s consent and is a form of psychiatric treatment and not a judicial penalty. None, least of all the courts, should assume that rapes occur because of uncontrollable sexual urge. There can be no ‘magical results’ in curbing crimes against women unless there is a transformation in society and it’s very thought process. The rising rate of sexual crimes against children in the country is indeed alarming, but that does not reason enough for courts of law to advocate medieval forms of punishment.

Repercussions of castration on sex offenders

The castration operation, known as a bilateral orchidectomy, requires that the surgeon remove the testicles. The penis is left intact, and to disguise the surgery, doctors can replace the testicles with plastic balls which prevent the scrotum from shrinking. The operation is not unusual and has been performed many times in the past for treating prostate cancer. The theory behind the surgery as a treatment for sex offenders is that the sex drive is partially dependent on the hormone testosterone, some of which is produced in the testes. By removing the testicles, the amount of testosterone in the body is reduced, and, so the theory goes, the sex drive is lowered and in many cases reports of baldness, but there have also been reports of increased head hair. Some castrate complain of hot flashes, brain pressure, vertigo, and sweating, and blushing symptoms similar to those of menopause.

Castration opponents argue that it is this psychological shock that explains the low recidivism rate and that men see themselves as asexualized when perhaps only their will to perform has been sapped.

"It just isn't a matter of sex," Hirsch says. "The way rapes take place makes that clear. It's a matter of a rapist getting his aggression out on somebody and humiliating another person. None of that is cured by removing the genitals, and the violence will come out in some other way unless the person has been so shocked-that is to say, punished the castration. It's supposed to be therapy, but the fact is that it's punishment, because the therapeutic aspects of it are very shaky."

Countries where castration is legal

Research directed by the Jang Group and Geo Television Network shows that at least three nations have ordered castration laws as punishment for rapists. As indicated by the BBC News, the CNN, the Amnesty International, The Jakarta Globe paper, the Independent newspaper and

The Daily Mirror of UK, these nations that punish rapists through castration include:

Indonesia – Indonesia's parliament in October 2016 had passed a law approving chemical castration following various prominent instances of child sexual abuse in the nation. The first man condemned to chemical castration in 2019 said he would prefer an expansion in prison time or even capital punishment.

Czech Republic – The Czech Republic practices chemical castration for sex offenders. The law was presented in 1966. As per official figures, 85 individuals went through chemical castration in the Czech Republic somewhere in the range of 2000 and 2011. Notwithstanding, this practice has drawn solid analysis from rights gatherings.

Ukraine – Ukraine's parliament in July 2019 had affirmed a measure to chemically castrate rapists forcibly. The enactment will potentially apply to people aged somewhere in the range of 18 and 65 found liable for raping or sexually abusing minors.

Only days prior, Nigerian administrators had shocked the world by affirming chemical castration as punishment for those convicted of raping children who are younger than 14. Notwithstanding, Kaduna State's lead representative, Nasir Ahmad El-Rufai, needs to sign the bill for it to turn into law.

The BBC News expresses: "The Governor of Kaduna State in Nigeria has recently upheld castration to prevent a rapist from re-culpable. The move follows public shock over an influx of assaults, which provoked the country's state lead representatives to pronounce a state of emergency. Nigeria's government law gives between 14 years and life detainment as punishment, however, state officials can set distinctive condemning principles. Stigma often prevents victims from announcing incidents of rape in Nigeria and the quantity of effective indictments is low."

Furthermore, on June 11, 2019, the American state of Alabama had instituted a law that would need, as a state of parole, that some indicted child sex offenders go through "chemical castration". Famous American media house The Atlantic had expressed: "The new law will imply that those individuals who abused children younger than 13 will be infused with hormone-blocking medications prior to leaving jail. The medication should be controlled until an adjudicator, not a doctor, considered it not, at this point essential. A comparable bill was proposed a year ago in Oklahoma yet met solid resistance. The previous Soviet republic of Moldova additionally passed a law commanding chemical castration for child sex offenders, in, 2012. It was revoked the next year on grounds that it was an "infringement of fundamental human rights."[5]

Barbaric indeed

When judges assume messianic roles while seeking to act on perceived outrage, it may result in inventive remedies but not necessarily achieve complete justice. It is not unusual these days to find some of them traversing beyond the remit of the cases before them and seeking to find or suggest solutions to many of society’s crimes and ills. In the Madras High Court, one has seen recent instances of a >judge suggesting mediation between a victim and the perpetrator of rape, another laying down that mere sexual relations amount to marriage, and one prescribing pre-marital potency tests to prevent divorces from happening. The latest is the suggestion of Justice N. Kirubakaran that > castration be made an additional punishment for child rape. Significantly, he himself acknowledges that this would be criticized as being barbaric and retrograde, but yet goes on to say that barbaric acts require barbaric punishments. But this is out of character with Indian jurisprudence as well as known canons of modern criminal justice. For one thing, the principle of proportionality of punishment is a limiting norm that militates against excessive punishment and is not an eye-for-an-eye rule. Secondly, civilized systems have moved away from retributive sentencing, especially from ideas such as torture, decapitation, mutilation, and chopping off of parts of the body as forms of punishment. It may also be counter-productive if castration is added as a form of punishment as it may deter foreign courts from allowing the extradition of offenders to face trial in India.

Conclusion and Suggestions

Castration is seen as a symbol of retributive policies, although India follows a reformative system. This further weakens the argument for castration as a punishment. The chemical castration laws deny human dignity because they treat sex offenders as objects rather than a person. Chemical castration disables the offender in body and mind and exposes him to short and long-term health consequences and it also shackles and cripples the body of sexual offenders.

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 states that there will be no discrimination on the basis of sex. In case the offender is a woman will there be any provision implemented which will bar as a harsh 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, the enactment of such a law would pull us back to where we started from.

In the end, instead of enforcing barbaric and fierce punishments like castration for rape, the laws for rape in India should be critically examined and the legislature should do away with all the anomalies that could possibly pester the victim anywhere during the process of seeking justice.

[1] https://www.firstpost.com/india/sc-calls-on-parliament-to-discuss-laws-on-chemical-castration-heres-all-you-need-to-know-about-it-2580326.html

[2] http://www.legalservicesindia.com/article/1510/Rape-Law-In-India,-Problems-In-Prosecution-Due-To-Loopholes-In-The-Law.html

[3]https://www.thehindu.com/news/national/to-put-an-end-to-abuse-of-children-hc-suggests-castration-of-rapists/article7803693.ece

[4]https://blog.ipleaders.in/human-castration-rape-punishment/

[5] https://www.thenews.com.pk/print/715186-three-countries-where-rapists-are-punished-through-castration