Chemical Castration of Sexual Offenders in India – A Need for Reformation in Indian Anti-rape Laws

– By Anand Singh

Introduction –

On November 24^th, 2020, Pakistan’s cabinet approved two anti-rape ordinances that call for chemical castration of the rapists and setting up special courts for trails. The two ordinances are the Anti-Rape (Investigation and Trail) Ordinance, 2020 and the Criminal Law (Amendment) Ordinance, 2020. The legislation comes after an incident involving the alleged rape of a woman and her minor daughter in Sindh’s, Kashmore district. Pakistan had witnessed an increase in cases of rapes since 2018. Sexual harassment and violence against women are at a constant rise in Pakistan, where nearly 1000 women are killed each year in the name of ‘honour killings’ for violating conservative norms of the Pakistani society. These amendments in the current law can yield desired results if implemented successfully.

The meaning of Human Castration –

Castration can be defined as a medical treatment, which decreases or completely finishes the sex drive of a person based on the treatment. Castration is of two types – Physical and Chemical. In physical castration, the testicles of a person are removed by surgery, and in chemical castration, the level of testosterone is reduced by certain chemicals.

In ancient times castration used to be extremely painful, but with the advancement in medical science, the physical and psychological pain involved in the process has been done away.

The History of Castration as a Punishment –

Compulsory physical castration dates back to the medieval ages. Surgical castration, like a vasectomy, totally eliminates the ability to procreate. Surgical castration has been used for sex offenders since 1906 in many European countries; surgical castration of sex offenders was compulsory in post-war Germany till 1970. Now the surgical castration of sex offenders is statutorily regulated in European countries. But in the United States of America (USA), the surgical castration has been criticised and was held unconstitutional on the grounds of cruel and unusual punishment. An alternative for surgical castration was first tested in 1960’s, the use of hormone suppressor, i.e., chemical castration, which has proved very successful in the treatment of sex offenders.

Chemical castration also has physiological effects like physical castration such as weight gain, cold sweats, nightmares, muscle weakness, and fatigue. For the legality of the consent of the person on whom, the treatment is going to be administered should be informed with all the short and long term side-effects of the chemical castration, such as anticipated benefits, alternatives, and potential consequences. After mentioning all these facts only, the consent can be said to be voluntary acquired.

The Judicial Development of Chemical Castration as a Concept –

In a landmark judgement of Canterbury vs. Spence in the USA, the court held that the doctrine of informed consent is a fundamental concept of American jurisprudence, which says that “every human being of adult years and sound mind has a right to determine what shall be done with his own body.” Thus the doctrine lays down the requirement that the defendant be told all relevant information and any material risks to his well being regarding treatment.

Modern-day opponents of chemical castration argue that any kind of castration is inhuman, cruel, and unconstitutional as a punishment. But the benefits of chemical castration far weigh out the short term effects, and there are no long term effects. Moreover, the effects are temporary, unlike surgical castration. The eighth amendment of the US constitution states that the state cannot intrude upon a sex offender’s body with such a treatment that is cruel and unusual. The US Supreme Court, the case of Furman vs. Georgia has laid down three separate tests to determine whether a punishment is cruel and unusual or not.

The first test is that the punishment is not inherently cruel. As far as chemical castration is concerned, it does not permanently mutilate the body and involves only a simple injection. It is not as cruel as capital punishment, and also gives the person a chance to re-enter the society with state supervision.

The second test employed by the court requires that the punishment is proportional to the crime, there should be no long-term effects, which affect the offender’s future, and the physiological effects are not permanent and can be reversed with the cessation of the treatment. Chemical castration as a punishment also passes this test, as the treatment is not excessive as it can be discontinued. Furthermore, the effects of the drugs are fully reversible.

The third and final test says that the drug is not experimental and does not have to be administered for the life of the offender to be effective. Under this test, the courts have to determine that whether the punishment is excessive in nature than the accomplishment of states’ legitimate aim. Chemical castration reduces the sexual urges of the offender, and thus there is no threat to society; additionally, the states’ aim of reducing the incidence of rapes cannot be achieved with a less intrusive method.

The Current Punishment in India for Sexual Offenders –

The punishment for rape is mentioned under Section 376 of the Indian Penal Code, 1860, which says that a man shall be punished for rape with imprisonment for not less than 7 years, which may extend for life. The punishment is decided after considering the severity of the act. The current sanctions have been ineffective in stopping the incidents of rape, and incarceration alone has proven ineffective in bringing change in the criminal tendencies of the offender. Sexual offenders getting released after serving the term of imprisonment were found committing such heinous offences again, in the absence of any corrective teachings with probation.

The Problem in Implementation in India –

In India, the discussion over the inclusion of chemical castration as a punishment against sexual offences sparked after the 2012 Nirbhaya incident, which shook the nation. The government proposed a draft bill, including chemical castration with imprisonment of 30 years as punishment for rape in India. The Verma Committee, constituted in 2013 for recommending new anti-rape laws, rejected the proposal for castration as a punishment and said that castration is unconstitutional and defeats the basic provision of human rights.

The Indian criminal justice system is retributive in nature and believes that punishment is more important than bringing reformation in the Indian society. The present punishment for sexual offences is only limited to the imprisonment of the offender which may extend for life. Imprisonment only keeps a person in prison, and ignores the fact that the person who commits rape is not in good mental condition, and he should be given proper medical treatment that can help in curing sexual disorders. Chemical castration with probation can be that treatment, so that when a person re-enters the society, he shouldn’t be found committing such offences again. Chemical castration is reformative in nature, which goes against the views of Indian criminal justice system.

This however, does not apply to every situation, and in some cases the offence committed shows that the mentality of the criminal is such that it cannot be cured with treatment of any sort and in this situation there is need for a harsh punishment to be extended.

The modern-day opponents of chemical castration as an anti-rape law in India argue that chemical castration is in violation of Article 21 of Constitution of India. It defeats the provisions of Right to Privacy and personal space of the patient, but these rights can only be violated if the act of chemical castration is operated on the offender without his consent or it is involuntary castration, but that is not the case here. The fact that needs to be considered is that rape itself is in violation of Article 21; it is a gross violation of a woman’s physical space, the Gauhati High Court in the judgement of Nasiruddin Ali vs. The State of Assam, has held that rape is a violation of victim’s fundamental rights under Article 21. Rape is an attack on the individuality and physical sovereignty of a woman.

Conclusion –

In conclusion, we can say that in today’s modern society, incarceration alone cannot help reduce sexual offences, and ironically, it often increases the offender’s desire to commit such crimes. Offenders who leave the prisons after completing their sentence, are hardly reformed, and are often found committing such crimes again. Thus, the states need to consider more effective ways to control sexual offences. Hence, we can say that the chemical castration is need of the time and indeed will help bring down the rate of sexual offences in India if implemented successfully.

[The author is a second year law student at Hidayatullah National Law University, Raipur.]