This is not the first time that a Bharatiya Janata Party government has found a so-called solution to the 'problem' of rape in the death penalty. In 2002, L.K. Advani as the deputy prime minister had called for capital punishment for rapists, but the idea was shot down by strong opposing arguments. The BJP seems convinced that there is an emotional harvest to be reaped from such decisions. That might explain why the present ordinance calls for death to those who rape minors below 12. The revelations about the reported gang rape of an eight-year-old in Kathua led to countrywide protests that also referred to the rape of the 17-year-old Dalit girl in Unnao. The government is responding dramatically: an ordinance, while suggesting urgency, also eliminates debate.

The ordinance is actually dangerous. Nowhere in the world has it been proven that capital punishment deters crime. Besides, such a sentence cannot be passed unless the evidence is flawless, so it lowers the conviction rate. The conviction rate for rapes of minors in India is tragically low; some reports put it around 28 per cent. This would drop further, especially since evidence gathering in these cases is often poor or difficult to get. Traumatized children can be delicate witnesses, and reporting the crime rarer when the complaint is against a family member or friend. The possibility of death will generate pressures that will exacerbate fears and aggressions. The criminal will tend to kill his witness and the defence lawyer will be harsher on the child. The death penalty already exists for the rarest of rare cases. By bringing it in separately for the rape of minors, the government is trying to cover up the fact that nothing has changed in sexual crimes in spite of the series of breakthroughs made by the law and activists from the time of the Mathura case, past the 2012 Delhi gang rape case to today's Kathua and Unnao. The problem is not the lack of laws, but a system that consistently refuses to use them in a committed and targeted manner. With this ordinance, the Centre is once again shrugging off its real responsibility of ensuring that all sexual criminals from all levels of society are caught and punished. That would be the real deterrence.