CASTRATION & OFFENDERS OF SEXUAL VIOLENCE

CASTRATION & OFFENDERS OF SEXUAL VIOLENCE
ARVIND JAIN
Expressing serious concerns over the spurt in rape and sexual abuse cases in Delhi, which is likely to spark a debate in media Additional Sessions Judge (Rohini) Kumari Kamini Lau has said that the lawmakers should explore the possibility of awarding punishment in form of surgical or chemical castration in rape cases.
Sentencing a man Dinesh Yadav to 10 years’ rigorous imprisonment for raping her 15 years old step-daughter over four years, she said an alternative punishment for rape should be put in place as it is the “crying need of the hour”.
ASJ Lau also directed that a copy of the order be sent to the Secretary, Ministry of Law & Justice, chairpersons of the National Commission for Women and the Delhi Commission for Women.
While many developed countries use chemical castration as an alternative to life-long imprisonment, the Indian government has neglected the issue. Ironically, the Indian legislatures are yet to take ... address the issue with all seriousness by exploring the possibility of permitting the imposition of alternative sentences of surgical castration or chemical castration in cases involving rape of minors, serial offenders ...or as a condition for probation, or as an alternative sentence in case of plea bargaining...jurists the world over are undivided in their view that chemical castration is required to be mandated for incestuous offenders, repeat sex offenders, pedophiles and molesters,” the court said.
DELHI HIGH COURT REJECTED CASTRATION IN 1995
Around 20 years back Shri S.M.Aggarwal, ASJ in a case of raping a three and a half years old girl also proposed for voluntarily castration under order from the Hon’ble High Court and for remission of the remaining sentence. In appeal Hon’ble Justice P.K.Bahari and S.D.Pandit of Delhi High Court [Jagdish Prasad Sharma Vs State [57 (1995) DLT 761 DB] rightly observed “Before we part with this case, we may mention that learned Additional Session Judge was not right in proposing voluntary castration of appellant under the orders of the High Court and for remission of his remaining sentence because this part of the order of the Additional Session Judge is totally illegal. The justice has to be administered according to the Law as it prevails and not on the hypothesis as to what should be the law for curbing such heinous crimes. There is no provision in any law that if a particular accused of a rape case voluntarily undergoes castration, then the minimum sentence prescribed by the statute is to be remitted by any court. The sentences have to be given as laid down by the Legislature. The Additional Session Judge ought to have restrained himself from proposing any such action which not in consonance with law.”
HIGH COURT WILL FOLLOW PRECEDENT OR ENDORSE PROPOSAL?
It seems that learned ASJ was not apprised with the aforesaid judgment of Hon’ble Delhi High Court before delivering such order.1995 judgment of high court has shed enough light on such serious and ambitious proposals. Needless to state that ASJ’s order was declared ‘illegal’ and Mr. Aggarwal, learned ASJ was advised to ‘have restrained himself from proposing any such action, which not in consonance with law’. Its beyond anybody’s guess that if an appeal is preferred against the order of Ms. Lao, the Hon’ble judges of High Court will follow its old precedent or endorse the suggested ‘innovative proposal’.
CASTRATION IS UNCONSTITUTIONAL
It is worth mentioning that Supreme Court of Carolina also voids castration in rape case .The South Carolina Supreme Court ruled recently that castration is unconstitutional form of “mutilation” and ordered three black convicted rapists to be resentenced because they had been given the choice of castration or 30 years of imprisonment. The Justices ruled that circuit Judge Victor Pyle’s sentence was void because castration was ‘cruel and unusual punishment’ prohibited by state constitution.
CASTRATE PERPETRATORS OF RAPE
Firebrand former Zanu PF Member of Parliament, Margaret Dongo, pleaded that the new constitution should include provisions to castrate perpetrators of rape. Dongo said “any form of law that resembles shariah should be pushed through to deter would be offenders and unrepentant traditionalists who are complicit in the commission of rape.”

“I am calling upon all women to make sure that they put pressure on the new constitution to include castration of rapists. Perhaps the move could deter rapists from engaging in such activities that have left many scarred and traumatized families in Zimbabwe. Rape victims will never regain their lives after the dastard act which ranks among the most heinous crimes ever committed on human beings. I implore the Parliamentarians to make sure that the girl child interests and indeed the interests of the women are protected. The law should also include traditional healers involved in rituals that influence men to go out and rape. The current laws have proved to be ineffective. Stiffer penalties in the form of castration will mitigate the problem. We should look back and see where we are going wrong. Rape has caused untold suffering in our society. It has no place and should never be allowed,’’ said the fiery Dongo.
Zimbabwean women cry over rising rape cases of minors
“It’s not a bad idea, men are abusing the tool that is not meant for force, power and control.” said Bongi Sibanda, programmes manager for a women’s rights group. Girl Child Network, a local organisation that promotes the rights of girls, says 95 per cent of all rape cases involving minors are perpetrated by men against young girls. The minister of women’s affairs, gender and community development, Olivia Muchena, initiated the debate recently and said “we need to seriously look at the option of castration for those who rape minors just as we have different levels of punishment, the same should be applied on those who rape children. How do you rape a child? It should be treated like first degree murder and have castration as part of punishment.”
She said “I therefore believe that castrating these rapists is the way to go so that we send a loud and clear message to those contemplating rape to refrain from the evil act. It is regrettable that in most cases of sexual abuse of minors, close relatives are the culprits. As a result, cases are often covered up and the abused minor seldom speaks out for fear of being thrown out of their home. Rape leaves an emotional scar on the victim for life and I see no reason why someone who causes a lifelong emotional, sometimes physical injury on a minor cannot be made to suffer for life as well.”
Conclusion
No doubt that the increase in rape cases are directly linked to the lax attitude of society; failing to translate their outrage into action and coming up with the kind of extreme penalty that would serve as a deterrent but according to our superior courts the proposal to castrate rapists is illegal, unconstitutional, too harsh, vindictive and violation of the basic fundamental rights of convicts enshrined under Article 21 of the Constitution of India. Certainly law needs radical change in language, its interpretation, prospective, vision and farsightedness to protect and grant security to helpless children from wolves in the society but who will bell the cat? When and how?