– More punishment is not less crime

Two weeks before Delhi’s Chief Minister Arvind Kejriwal’s press conference on Monday, outlining his proposals to counter sexual crime against minors, a young man was released from jail after four years as an undertrial in Delhi. The charge he had faced was grave: of kidnapping a 16-year-old girl to force her to have sex with him. In court, the judge finally accepted what the girl had said since his arrest in 2011: that she was an adult, that she was in love with him and had run away with him to escape the marriage her father was forcing her into and that her husband be released immediately.

In the last two weeks, Delhi’s district courts have also acquitted four men who were (separately) charged with rape for going back on a promise of marriage and 19 men in cases in which the complainant — some of them minors — denied having charged the accused with rape. The Aam Aadmi Party’s sincerity in wanting a safer city would appear to be beyond question, but the party and its leader are relying on a set of beliefs not grounded in fact, and seem destined to deliver outcomes that are not just sub-optimal, but harmful. Mr. Kejriwal backed jail terms of life imprisonment and death sentences for the rape of minors, as well as a move to try children aged 15 and above as adults if accused of rape. Both propositions are dangerous and misguided.

In 2014, the number of reported rapes in Delhi grew to 2,096, but the rate of increase declined sharply, after the spike between 2012 — the year of the December 16 gang rape — and 2013. Of the 2,102 reported victims, 1,008 (or less than half) were under the age of 18. Among these child victims, over 80 per cent were teenagers. These numbers become important given the way family honour and teenage sexuality play out in India.

Last year, The Hindu investigated all 600 cases of sexual assault decided by Delhi’s district courts in 2013. The largest proportion — a full third of all completed cases — involved the parental criminalisation of consenting young couples, many of whom had eloped and were often inter-religious or inter-caste relationships. In the majority of these cases, the FIR mentioned the girl’s age as between 13 and 16, even as the courts invariably found her to be an adult. This is because a girl’s consent to sex becomes legally immaterial if she is a minor; to charge and incarcerate her partner with abduction and rape, terming her a minor was essential. A study by the leading feminist lawyer Flavia Agnes in Mumbai found similarly.

The outrage over the December 16, 2012 gang-rape in Delhi led to the passage of a criminal law amendment which, among other things, raised the minimum sentence in the case of sexual assault to ten years. This took discretion away from judges; discretion which though problematic, was also used in cases of statutory rape involving a consenting underage girl, to reduce the sentence of her partner with whom she confessed to being in love, or had often even married and had a child with. By proposing to further extend the sentence to life or even death following the current outrage over the gang-rape of children, Mr. Kejriwal could turn consensual underage sex from a technical crime in the eyes of the law to a crime worthy of hanging.