Eye for an eye or castration for child rapists: Why Madras HC’s retributive justice suggestion should be thrown out

As reported on 26 October 2015, the Madras High Court, while dealing with an application by a British national for quashing of paedophile charges against him, remarked that child rapists should be castrated. This comment though is not as bizarre as the earlier one made by the Madurai bench of the same court a few months ago that a rapist should marry the woman whose body he had violated and whose dignity he had dishonoured. The Madurai bench’s views appear to resemble those of the khap panchayats.

The Delhi High Court earlier had suggested chemical castration for rapists if chopping off of the male organ was found to be barbaric and primordial. The JS Verma committee constituted after the Nirbhaya gang rape in December 2012 inside a moving bus in Delhi and which was responsible for stiffer sentences for sexual offences against women, rejected chemical castration out of hand, as well.

In Saudi Arabia, a finger of a larcenist is chopped off and even today in some of the corners of Africa, a killer is forced to marry the widow of the victim. All these are instances of retributive justice with their leitmotif being an eye for eye.

The Indian Penal Code has never been in favour of retributive justice except perhaps when it prescribes death sentence in the rarest of rare cases for murder. One of the reasons why the abolitionists lobby in the country is in favour of joining the Europeans in doing away with death penalty is because it is retributive. Be that as it may, even rigorous imprisonment is a way of prison life with a punishing schedule vis-à-vis others undergoing simple imprisonment rather than dismemberment of an organ, or physical punishment, of a convict.

Coming back to castration, judges must refrain from recommending any extra-legal measures and instead air their angst before the Law Commission that considers issues from time-to-time and in symposiums. An off-the-cuff remark by way of obiter dicta in the course of a judgment can have dangerous consequences in a country where emotions run high.

The family, relatives and friends of the victim in a rush of blood could wreak havoc on the rapist on the lines suggested by their Lordships, if necessary by penetrating even high-security prisons or by coopting death row prisoners, for example, with the lure of money for this purpose. More dangerously, the course suggested by the judges could be meted out instantly by the mob throwing the criminal justice system of the country pell-mell. Imagine, an alleged rapist being castrated by a furious and hot-headed brother of the victim before the police steps in. Granted, people do take law into their hands even otherwise, but courts should not even remotely or indirectly be responsible for instigating such a dangerous course.

This is not to suggest a kid-glove treatment to the heinous crime of rape. On the contrary, the full force of the law must be applied, and fast. If infuriated citizens must not be allowed to take law into their own hands, equally the courts too should not be allowed, albeit unwittingly, to sow the seeds of an uncontrollable desire for retributive justice in the minds of the family and relatives of the victim who always feel shortchanged by the seemingly soft sentence meted out to the rapist.