Dr.

Ram Manohar Lohiya National Law

University, Lucknow

LAW AND SOCIETY

SEMINAR PAPER ON

Castration as a punishment for Rape

Submition of Seminar paper undertaken in the fulfillment of B.A.LLB (Hons) 5year integrated
course at Dr. Ram Manohar Lohiya National Law University, Lucknow.

UNDER THE GUIDANCE OF:- SUBMITTED BY

Mr. A.P SINGH SHRESHTHA

(ASSISTANT PROFESSOR) B.A.LL.B(H) 7th SEMESTER

Dr. RMLNLU ROLL. NO. 131

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 ACKNOWLEDGMENT

I have taken efforts in this paper. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Mr. A.P Singh for his guidance and constant supervision as well as for
providing necessary information regarding the project & also for his support in completing the
project. I am thankful for your exemplary guidance, monitoring and constant encouragement
throughout the course of this project. The blessing, help and guidance given by his time to time
shall carry me a long way in the journey of life on which I am about to embark.

I would like to express my gratitude towards my parents for their kind co-operation and
encouragement which help me in completion of this project.

My thanks and appreciations also go to my colleague in developing the project and people who
have willingly helped me out with their abilities.

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TABLE OF CONTENTS

1. INTRODUCTION
2. RESEARCH QUESTION
3. HYPOTHESIS
4. RAPE
5. PUNISHMENT FOR RAPE
6. WHAT IS CASTRATION?

7. CASTRATION AS PUNISHMENT

a) GLOBAL SENARIO
b) INDIAN SENARIO

8. CAN PARLIAMENT IMPLEMENT CASTRATION AS A PUNISHMENT FOR RAPE?

9. REASONS WHY CASTRATION CANNOT BE ALLOWED IN INDIA

10. REFORMATIVE V. RETRIBUTIVE SYSTEM

11. CASTRATION AS A PUNISHMENT AND HUMAN RIGHTS LAW

12. CONCLUSION

13. BIBLIOGRAPHY

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INTRODUCTION

"An eye for an eye only ends up making the whole world blind."

- Mahatma Gandhi

According to the official statistics of 1991, one woman is molested every 26 minutes. These
statistics refer to the reported cases. Though, if the unreported cases are to be included, it would
be a matter of seconds, rather than minutes. Investigation of most cases are not reported by
victims because of various reasons such as family pressures, the manner of the police, the
unreasonably long and unjust process and application of law, and the resulting consequences
thereof.

India is the place where sexual assault is rapidly increasing. Rape in India is one of Indias most
common crimes against women. According to the National Crime Records Bureau 24,923 rape
cases were reported across India in 2012, but experts agree that the number of unreported cases
of sexual assault brings the total much higher. Out of these, 24,470 were committed by
parents/family, relatives, neighbors and other known persons implying that, men known to the
victim committed 98 per cent of reported rapes. The latest estimates suggest that a new case of
rape is reported every 22 minutes in India.1 So, what can be the reason behind the increment of
rape cases in India? Whether Indian criminal justice is not stringent enough to stop increment in
rape cases in India? There is reliance on utilitarian considerations in demanding castration. It is
justified on the grounds that retributive punishment serves the overall happiness or welfare of
society by deterring the accused from committing the crime again.

RESEARCH QUESTION

1. Seeing the increment in number of rape cases over the year, whether castration as a
punishment for rape should be allowed in India?

1 NCRB,Crime against women, Chapter 5, Annual NRCB Report, Government of India (2013).

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HYPOTHESIS

Human castration as a punishment for rape is a highly emotionally charged issue but whenever
you make a law very stringent on account of pressures from emotionally surcharged social
reactions, there is a real danger of its misuse.

RAPE

Prior to 2013, the Indian Penal Code (IPC) defined rape as sexual intercourse by a man with a
woman without her consent. There were five other circumstances where sexual intercourse
amounted to rape, including, for instance, when consent was obtained through deception or
threat. Most cases fell within the first limb of the section sexual intercourse without consent.
Sexual intercourse was not defined in the IPC, which only stated that penetration was
sufficient to constitute sexual intercourse.

Through interpretation, courts understood sexual intercourse to mean penile-vaginal

penetration and further ruled (based on the wording of the section) that ejaculation is not
required for intercourse to be rape. Through such interpretation, any other penetrative act, such
as oral sex, digital penetration, or penetration by objects were excluded from the purview of the
rape law. Hence, in the December 16 case, the insertion of an iron-rod into the victims vagina
did not amount to rape, although penile-penetration did. Should an act of penetration that is not
penile-vaginal be classified as rape? This was an important question before the Justice Verma
committee2

It noted that every woman was entitled to her bodily integrity and to sexual autonomy. Sexual
autonomy implies that a woman has a choice to decide with whom to engage in a sexual act,
when to engage in such act and the nature of the sexual act that she wants to engage in. Since
rape violates such sexual autonomy and the bodily integrity of a woman, it should be
criminalised. Consequently, the penetration of a womans vagina, urethra, anus or mouth by a
2 MRINAL SATISH, Forget the Chatter to the Contrary, the 2013 Rape Law Amendments Are a Step Forward,
https://thewire.in/60808/rape-law-amendments-2013/

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penis and penetration of the vagina, urethra or anus by finger(s), object(s), body part(s), is
considered rape. Acts of cunnilingus and fellatio are also covered within the definition.

PUNISHMENT FOR RAPE

Considering the punishments meted out in other countries, India is too soft on convicts. In fact,
before 2013, rape was not considered a major crime. The highest degree of punishment that
could be given to the convict was imprisonment for seven years. This was possible only when the
culprit was arrested and proved guilty. Criminal law amendment act, 2013 changed the
punishment of rape. Now, an act of rape is liable to life-long imprisonment and even death
penalty in extreme cases.

Different countries around the world have starkly different laws towards sexual assault though.
For Example,

France: 15 years to life

China: Death sentence or castration
Saudi Arabia: Beheading within days
USA: Imprisonment for life

Russia: 3 to 20 years

The debate on castration as punishment for rape got populist attention in India after Nirbhaya
case and even given consideration to be included in criminal justice reforms by the ruling party.
The moment the debate on castration gathered attention in India, it was criticized for bringing
back medieval notions of justice.

WHAT IS CASTRATION?

Surgical castration involves the physical removal of the gonads from the male body, a form of
castration that is rarely used by governments as a punishment for sex criminals. The preferred
method, in the few countries that do allow this form of punishment, is chemical castration.
Chemical castration is an injection for sex offenders with drugs such as Depo-Provera which has
the effect of reducing the levels of testosterone and thereby controlling libidinous urges. 3 There
3 J.S Verma Committee Report on Amendment to Criminal Law, 38.

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are varying groups of drugs that effect libidinous urges, these have been categorized in the
following way:

For patients with obsessive sexual fantasies, antidepressants from the family of SSRIs that
includes Prozac, often prescribed to treat obsessive compulsive disorder, can help them control
their sexual thoughts. The second and more radical approach is an antiandrogen drug, such as
leuprorelin, which reduces testosterone levels to those of a prepubescent boy, and makes the
patient impotent.4

While surgical castration is irreversible, the effects of chemical castration can be reversed if the
drug is not administered at regular intervals. The side effects of chemical substances like Depo-
Provera may include osteoporosis, hypertension, fatigue, weight gain, nightmares, muscle
weakness and apart from that the long term side effects are still not known.5

CASTRATION AS PUNISHMENT FOR RAPE

GLOBAL SENARIO

Most of the countries opt castration as a punishment for child sexual abuse. In 1996, California
state officially introduced chemical castration for offenders who molest children below 13 years
of age. For second-time offenders, this punishment is mandatory. Since then, at least seven other
states in the US have allowed for chemical castration, including Iowa, Wisconsin, Texas, Oregon
and Louisiana. Texas is the only state in U.S which allowed surgical castration also.

In Europe, Poland enacted a law in 2010 allowing forcible chemical castration of anyone
convicted of raping a child below 15, to ensure that the convicts sex drive is lowered by the time
his prison term is completed. Moldova and Estonia followed suit in 2012.

In 2011, South Korea became the first Asian country to allow judges to sentence child molesters
to chemical castration. Under the current law, perpetrators of sexual crimes against minors aged
less than 16 yr are subject to chemical castration.
4 Decca Aitkenhead, Chemical Castration: The Soft Option. The Guardian, January 18, 2013,
http://www.guardian.co.uk/society/2013/jan/18/chemicalcastration-soft-option-sex-offenders.
5 supra note 2 42.

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Indonesia also introduced a bill for chemical castration to punish paedophiles. Like India,
Indonesia has also been witnessing a spurt in the number of reported child rape cases

INDIAN SENARIO

The debate on insertion of Castration as a punishment for sexual offenders in Indian criminal
system is going on from a very long time. Way back in 1979, in Rajendra Prasad v. State of Uttar
Pradesh6, Justice V.R. Krishna Iyer was the judge who talked about considering chemical
castration as a punishment. But he was of the opinion that it should be in consonance with the
offender means he was in favor of voluntary chemical castration. Hon'ble Justice Krishna Iyer
indicated that,

"The crucial question is that the crime and its horrendous character except to the extent it
reveals irreparable depravity and chronic propensity, the innocent three will not be happy
because one guilty companion is also added to their number. In Janardan a social security risk,
altogether beyond salvage by therapeutic life sentence ? If he is, the pall must fall on his
cadaver. If not, life must burn on, so viewed, no material, save judicial wrath and grief, is
discernible to invoke social justice and revoke his fundamental right to life. A course of anti-
aphrodisiac treatment or willing castration is a better recipe for this hypersexed human than
outright death sentence. We have not even information on whether he was a desparate hedonist
or randy rapist with 'Y' chromosomes in excess, who sipped every flower and changed every
hour, so as to be a sex menace to the locality. Sentencing is a delicate process, not a blind man's
buff. We commute the death sentence to life imprisonment."

After that this issue catch up the fire when decision of Madras High court7 came where a judge
has suggested that the Central government consider castration as an additional form of
punishment for child sex abusers. Justice N. Kirubakaran said, When law is ineffective and
incapable of addressing the menace, this court cannot keep its hands folded and remain a silent
spectator, unmoved and oblivious of the recent happenings of horrible blood-curdling gang
rapes of children in various parts of India, The judge further said that though the suggestion
of castration looks barbaric, barbaric crimes should definitely attract barbaric models of
6 Rajendra Prasad v. State of Uttar Pradesh, A.I.R.1979 S.C.916.
7 In Re: State and Ors, 2016(1) C.T.C.193.

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punishment and the very thought of the punishment should deter the culprit from committing
the offence.

Anticipating a reaction to his judgment, he said: Those activists should first exhibit sympathy
with, and support to, the victims of such crimes by visiting and consoling them at the hour of
crisis instead of having misplaced sympathy with the perpetrators under the usual banner of
human rights violation.

Many women lawyers started demanding castration as an additional punishment for child sex
abusers and child rapists. They expressed serious concern over the increase in incidents of
sexual assault on minor girls across the country. Supreme Court Women Lawyers Association

(SCWLA) filed PIL for demanding the more rigorous punishment like castration for the child sex
abusers. But Supreme Court disposed of the petition on the ground that court cannot impose a
particular punishment, it comes in the domain of legislature. Justice Dipak Misra wrote in the
judgment8,

.we must make it clear that the courts neither create offences nor do they introduce or
legislate punishments. It is the duty of the Legislature.

So it is clear now that court cant impose punishment which is not mentioned anywhere in the
statute. It is upon parliament to add the new punishment in IPC by making amendments. But the
question remains that can parliament implement castration as a punishment for rape?

CAN PARLIAMENT IMPLEMENT CASTRATION AS A PUNISHMENT

FOR RAPE?

8 Supreme Court Women Lawyers Association (SCWLA) v. Union of India (UOI) and Ors., A.I.R. 2016 S.C.358.

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After the Nirbhaya Rape case in 2012, Parliament decided to make changes in Rape definition
and penal provisions and constituted a committee known as J.S Verma Committee for
recommendation. Parliament asked the question that whether India should consider castration as
punishment for rape? Committee rejected this by saying that this type of punishment can never
be allowed in India because it is against the spirit of constitution and violate the basic Human
Rights.

It is the stand of the Working Group on Human Rights that mandatory chemical
castration for sex offenders is unconstitutional as it would violate the fundamental right to
privacy and the right to refuse invasive medical treatment and would constitute a violation of the
prohibition against cruel and unusual punishment contained in numerous international
covenants including the ICCPR and CAT.9

They were of the opinion that Mandatory chemical castration is violation of the human dignity
and also it fails to treat the social foundations of rape which is about power and sexually deviant
behavior. Surgical castration also rejected by the committee because it is about mutilation of a
part of body which is not permissible by constitution. Death is a known form of penalty but
mutilation has not been recognised in progressive jurisprudence as prescribed punitive
action.10

Many jurists and Human rights activist thinks that castration is wrong and it will violate
constitution but that favor voluntary castration. The United States, Denmark, Poland, The
Czech Republic, Germany, Sweden, Finland, Norway, and Argentina carry this law, and in these
countries, chemical injection is conducted on the principle of voluntary agreement. "Are we
trying to go back to the stone age? Tomorrow, there may be suggestions that hands of those
involved in robbery should be chopped off as punishment. Castration will be a regressive step
that will not stand scrutiny. I am of the view that we must find a viable solution to what has now
become a very serious problem confronting our society rape. There is urgent need to improve our
criminal justice system to ensure speedier justice and compensation to rape victims. The
government must come up with a plan to check the growing incidence of rape. We also need to

9 supra 2, 39.
10 J.S Verma Committee supra 2, 44.

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check if the easy availability of drugs is resulting in growing crime, especially rape, etc," said
National Human Rights Commission chairperson K G Balakrishnan.11

Even politician like Maneka Gandhi is against castration by calling it "regressive" and a form of
"revenge" rather than punishment with a view to reform the offender.12

REASONS WHY CASTRATION CANNOT BE ALLOWED IN INDIA

1. Criminal Law Amendment, 2013 extended the scope of term penetration used in
Section 375. Now, it is not limited to penile-veginal penetration. Castration as a
punishment for rapist is based on the premise that penetration is the only way of
committing a rape. It ignores the other ways which a rape can be committed. Castration
law would lose its relevance, as it is contrary to the definition of rape.

2. Some argued that castration as a form of punishment cannot be sustained, if a gender

neutral law is enacted because women cannot be castrated and if castration is advised
only for men then the law would most likely fall as it would be violative of Article 14.
Though this argument will fall flat because definition of rape in IPC does not extend to
women. Means a woman cannot be charged for rape.

3. Forced Castration is barbaric and is not commensurate with the rights of the prisoners. It
is worthwhile to note that the Supreme Court in its various judgments has accepted that
prisoners are also entitled to enjoy fundamental rights. Desai, J. in Harbans Singh v.
State of UP13 pointed out that the conviction of a person for a crime did not reduce him to
a non-person, vulnerable to major punishments being imposed on him.

4. There is no evidence to suggest that persons subjected to castration will not commit a
sexual crime again. Ales Butala, a member of The Prevention of Torture Committee of
The council of Europe noted that: The delegation that visited the Czech Republic in

11 Maneesh Chhibber, Jurists say castration law will violate Constitution, Indian Express, January 2, 2013
Wednesday.
12 Himanshi Dhawan, Plan for chemical castration of rapists regressive: Maneka Gandhi, TOI, Jan 12, 2016,
http://timesofindia.indiatimes.com/india/Plan-for-chemical-castration-of-rapists-regressive-Maneka-
Gandhi/articleshow/50540441.cms.
13 Harbans Singh v. State of U.P, A.I.R.1982 S.C.849.

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 March and April came across three cases in which the offenders had committed serious
sex related crimes, including serial rape and attempted murder, after being surgically
castrated.14

5. Further, chemical castration fails to treat the psycho-social roots of rape, which is
essentially about power, or of other sexually deviant behavior. Determined sex offenders
could, arguably, reverse the effects of the drug with other drugs. Therefore, the treatment
or punishment of sex offenders with chemical castration is more likely to prove
ineffective, both in the individual and the larger social context.15

6. Even from a rational perspective, chemical castration is not feasible. The process requires
administering the drug after regular intervals. Considering India, where basic health care
for every Indian is still a distant dream, spending a fortune on a punitive punishment does
not make sense. To add to this, the efficiency of chemical castration is doubted. It does
not always help in reducing a mans sexual desires, leading to a waste of effort, resources
and purpose.

REFORMATIVE VS RETRIBUTIVE SYSTEM

These two legal systems differ in their views about why criminal should be punished. The
arguments for and against of the castration as a punishment for rape is based on this broader
debate. The difference between them can be easily contrasted with the following example:

A parent who simply slaps a child when he does something forbidden is symbolic of a retributive
system, and a parent who scolds the child and explains the logic behind the actions is symbolic
of a reformative system.

Reformative system believes that even criminals are capable of improvement and later
contributing to society, while the retributive system believes that punishment is more important

14 Siddharth Mehta, Rape Law In India: Problems In Prosecution Due To Loopholes In The Law, April 16, 2013,
http://www.legalservicesindia.com/article/article/rape-law-in-india-problems-in-prosecution-due-to-loopholes-in-
the-law-1510-1.html.
15 Working Group on Human Rights in India and the UN (WGHR), Note on Death Penalty and Chemical
Castration as possible punishment for crimes of Rape and Sexual Assault, 30,
http://wghr.org/wpcontent/uploads/2013/07/Submission_by_WGHR_to_Justice_Verma_Committee.pdf.

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than reformation. Castration is seen as a symbol of retributive policies, although India follows a
reformative system. This further weakens the argument for castration as a punishment

CASTRATION AS A PUNISHMENT AND HUMAN RIGHTS

There are two prime motivation behind any resort to natural law:-

1. Quest for universal order

2. Protection of inalienable rights

This is the reason why Human Rights are recognized as universal and can criticize state if
they wont protect rights of an individual. This natural law understanding of human rights is
connected with a particular account of human dignity. Under this account, the natural human
capacities for reason and freedom are fundamental to the dignity of human beingsthe
dignity that is protected by human rights. The basic goods of human nature are the goods of a
rational creaturea creature who, unless impaired or prevented from doing so, naturally
develops and exercises capacities for deliberation, judgment, and choice.16

In Modern time, state is the source of law, yet natural law in not completely disregarded
because the tendency of natural law is to resort something higher, eg., To seek justice. The
philosophy of the Declaration states that man is endowed by his Creator with the
independence to which he is entitled by the law of nature. It also states that certain rights are
unalienable because they are founded in the human nature, having their source in the Creator
of the human race, and that governments are originated to secure these rights among men. 17
Supreme Court in Maneka Gandhi v. UOI18, well recognized the Blackstones theory of
Natural Law19 and held that there are some inalienable rights like personal security and
personal liberty which a man inherent naturally and must be protected. Court was also of the

16 ROBERT P. GEORGE, Natural Law,

http://www.law.harvard.edu/students/orgs/jlpp/Vol31_No1_Georgeonline.pdf.
17 Kent Schmidt, Blackstone's View of Natural Law and Its Influence on the Formation of American Declaration
of Independence and the Constitution, http://www.uark.edu/depts/comminfo/cambridge/blackstone.html.
18 Maneka Gandhi v. UOI, A.I.R.1978 S.C.597.
19 The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his
body, his health, and his reputation. Life is an immediate gift from God, a right inherent by nature in every
individual. . . ., William Blackstone, Commentaries 129.

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 view that natural law rights are converted into constitutionally recognized Fundamental
rights.

..the rights of "personal security" and of "personal liberty", recognised by what

Blackstone termed "natural law", are embodied in Article 21 of the Constitution20

That is why after examining all the aspects it has been decided by Supreme court that Death
Penalty is the most humane way of taking life of someone with dignity because human
dignity must be protected. Castration is recognise as inhumane in international law. They find
it unconstitutional and contrary to basic human rights principles for the state to expose a
citizen, without their consent, to potentially dangerous medical side effects. Article 7 of the
ICCPR, which is important in the present context, states as under:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment. In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.

So, chemical castration as a punishment for rape or sexual assault must be abandoned as
completely violative of our Constitution and basic human rights.

CONCLUSION

Though castration, on the face of it, may seem to be a good way to deal with rapists with a
vengeance, problems will surface when details are spelt out while introducing chemical
castration as a mode of punishment for rape. By the same logic, Why should we not chop the
hand of a person who steals. Or beat a person who beats others. Or poison someone who
poisons others? In 1986, Supreme Court said that a barbaric crime should not have to be
visited with a barbaric penalty.21 Rape is not just about sex, it is about power, vengeance
and mind. Chemical castration appears to disable the organ, while leaving the mind free. The
crime was motivated by the mind. If the criminal does not have a functioning organ, he can

20 supra note 14.

21 Attorney General of India v. Lachma Dev, AIR 1986 SC 467.

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 still use other implements to commit the crime. (An iron rod, for instance). Supreme court
already said that we cannot blindly follow the laws of other nation.22

Statistics shows that, even after the 2013 amendment which stringent the rape laws in India,
number of rape cases only increased. According to NCRB data, the number of rapes reported
in India was 33,707 in 2013. Between October, 2012 and October, 2013, the number of
molestation complaints increased by 440%. According to a recent compilation of data by
Delhi police, 616 rapes and 1,336 molestation cases were registered between January 1 and
April 30, 2014, which is 36% increase compared to the previous year.23

So, instead of enforcing barbaric and fierce punishments like castration, the law for rape in
India should be critically examined and the legislature should do away with all the anomalies
that could possibly pester the victim anywhere during the process of seeking justice.

One may say, what is the solution then? As it seems castration is the need of an hour seeing
the increment in rape cases. The solution lies in teaching every male to respect their female
counterparts. It lies in removing the growing disparity between a mans standing in the
society as compared to a woman. It lies in ending the culture of objectifying women in any
manner. It lies in gender sensitization, it lies within all of us. It is a long process and perhaps
will take time but thats the only permanent solution to this problem.

BIBLIOGRAPHY

22 Supreme Court Women Lawyers Association (SCWLA) v. Union of India (UOI) and Ors., A.I.R. 2016 S.C.358.
23 Rumani Saikia Phukan, Nirbhaya Gang Rape & After How Effective Are the New Laws,
https://www.mapsofindia.com/my-india/india/nirbhaya-gang-rape-after-how-effective-are-the-new-laws

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 1. Annual NRCB Report on NCRB,Crime against women

2. Attorney General of India v. Lachma Devi

3. Supreme Court Women Lawyers Association (SCWLA) v. Union of India (UOI) and Ors.

4. Blackstone's View of Natural Law and Its Influence on the Formation of American
Declaration of Independence and the Constitution by Kent Schmid

5. Working Group on Human Rights in India and the UN (WGHR), Note on Death Penalty
and Chemical Castration as possible punishment for crimes of Rape and Sexual Assault

6. J.S Verma Committee Report on Amendment to Criminal Law

WEB SOURCES

1. https://www.mapsofindia.com/my-india/india/nirbhaya-gang-rape-after-how-effective-
are-the-new-laws

2. http://www.uark.edu/depts/comminfo/cambridge/blackstone.html

3. https://www.youthkiawaaz.com/2013/08/demand-chemical-castration-rapists-illogical-
makes-sense/

4. https://economictimes.indiatimes.com/news/politics-and-nation/why-chemical-castration-
of-child-rapists-molesters-is-a-solution-that-ignores-realities/articleshow/49610231.cms

5. https://blog.ipleaders.in/human-castration-rape-punishment/

6. http://indianexpress.com/article/explained/castration-as-a-form-of-punishment-used-in-
some-countries-but-can-it-reform/

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,

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