- Judges need to be circumspect, not overzealous.
- Lust and libido aren’t always driving factors for rape and sexual abuse.
- Mandatory castration is barbaric, and fraught with ethical dilemmas.
- Populism and vengeance pose a greater threat to victims of rape.
Quite often, judges, especially of the superior courts, imbued as they are with unlimited powers under the law to issue proclamations, consider themselves the saviours of society. And in those moments, consumed by the dizzying sense of self-importance, what they hand out from the bench is not justice, but questionable propositions.
The case at hand was about a British national, accused of sexually abusing and assaulting a 15-year-old boy under the garb of altruism. A Red Corner notice in his name was preventing him from travelling to India and standing trial, where he could protest his innocence. Till date, there has been no ruling on conviction, and the victim and his family have withdrawn their charges, although under circumstances which do not inspire confidence about their actions.
These are the facts. Now, Justice N Kirubakaran, who sits on the Madras High Court bench, launched into a tirade against “foreign monsters” and asserted that only by “tinkering with their libido” can sex-offenders be reined in.
Justice Kirubakaran, who has a dedicated Facebook fan page and also a formal complaint against him for shaming rape victims, seems to be emulating British Home Secretary Jon Reid. Reid passionately advocated for chemical castration of paedophiles and sex-offenders, benignly terming it as psychological treatment. He also wholeheartedly supports Bobby Jindal, the Governor of Louisiana and candidate in the US presidential elections, who has authorised the chemical castration of sex offenders.
The Judge’s Reasoning
Perhaps the judge was enraged and repelled by the alarming increase in gruesome rapes of children, some of whom are as young as four years old.
After all, one is bombarded on a daily basis with grisly details in the media. If the statistics, some of which Justice Kirubakaran cites in order to justify his ruling, are indeed a cause for fear, then there is bound to be a proliferation of demands for retributive justice.
And, the shift in public opinion, especially after the 2012 Delhi gang rape incident has only mirrored this. Every time there is an incident of rape or sexual assault of a child, the rage and indignation, fuelled to considerable extent by the media’s incessant sensationalist coverage, quickly escalates into visceral cries for vengeance and strident retribution.
But should the judiciary be swept away in this whirlwind and bestow judicial sanctity upon rank vigilantism? Unless of course, they are only thirsting for the raucous cheers of their ‘fans’.
Misguided Reform
That’s one aspect. The other aspect is more troubling. Caught in the throes of reformist fervour, and firmly believing that the judiciary must not idly wring its hands while society is hurtling towards ruin, judicial reasoning gets completely muddled. And this muddled thought provides a fertile ground for extremely harmful ‘diagnoses’.
Thus, Justice Kirubakaran emphasises that rapists and paedophiles are fiendish creatures who give violent vent to the urges of their libido. This linking of paedophilia and rape to lust is as grossly flawed as it can be. Because as is almost universally acknowledged by now, lust is not the driving factor behind rape; the desire for exercising dominance, perpetrating violence and a fervent belief in self-entitlement, are.
Savage Retribution
Repeatedly harping upon his self-created and fearful dictum that “barbaric” crimes must be met head on with equally “barbaric” legal measures, Justice Kirubakaran urges the government to bring about necessary amendments in the law so that castration, alongside imprisonment, is made a mandatory punishment for rapists.
He does not clarify whether he is advocating surgical castration (which is practised in the Czech Republic, and which the Council of Europe’s Committee for the Prevention of Torture termed as “invasive, irreversible and mutilating”), but the vociferous emphasis on barbarity might just permit one to hazard a guess that he is not in favour of chemical castration.
A Minefield of Both Bioethics and Law
This is quite a perilous route, fraught with grave consequences for human rights and leads straight to a minefield of both bioethics and law. This is because even in those countries where castration (chemical) is prevalent not as mandatory punishment, but as an option for convicts to seek parole, the practice has come under severe scrutiny.
As regards chemical castration, “Primum non locere” or “first, do no harm” is a fundamental tenet of medical ethics, and physicians are still sharply divided over whether the administration of certain drugs to reduce a man’s libido to pre-pubescent levels is permissible by the tenets of medical ethics. Moreover, since chemical castration is reversible, it’s efficacy in cutting down on both reoffending and recidivism is questionable, as a 2013 British Medical Journal article contends.
Moreover, as Frances Crook of Britain’s Howard Penal Reform League contends, pharmaceutical interventions are no measure to the psychological triggers that cause people to commit sex crimes. In fact, there is also the concern that by “feminising” the offenders, the criminal justice system would end up thrusting them into exclusionary zones, thereby, in a way, encouraging them to repeat their crimes, perhaps more violently than before.
It is not known why Justice Kirubakaran cited examples from countries where castration is practised without going into any analysis regarding their compatibility with inalienable principles of India’s constitutional law and criminal jurisprudence.
Only a government callous to the rights and needs of victims and imperious enough to ride roughshod over human rights would deign to consider the suggestions.
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