Author: Shefali Awasthi & Shambhavi Upadhyay are students at the University School of Law and Legal Studies, GGSIPU.
Introduction
Sexual abuse especially related to children is considered to be one of the most heinous atrocities that is prevalent globally. Recently, the issue came to the limelight when the parliament of Madagascar, a nation in the Indian Ocean assented on 2nd February 2024 to impose chemical and in some cases even surgical castration as a punishment for those found guilty of rape of a minor. To better grasp its implications, it is imperative to understand what chemical castration is and the complexities surrounding it.
Chemical castration has been defined as the administration of a drug to bring about a marked reduction in the body’s production of androgens and especially testosterone to reduce the sexual urges of sex offenders. While it is widely argued that this method could serve as a deterrent and protect potential victims, moralists raise concerns about its effectiveness, potential misuse, and inconsistency with the basic human rights treaties. This blog aims to analyse the concept of chemical castration, its validity and effectiveness in combating sexual violence, and the ethical dilemmas surrounding it with respect to the Indian criminal justice system.
A Worldwide Viewpoint on Chemical Castration
There are multifaceted global viewpoints regarding chemical castration as a methodology to deter sexual violence, showcasing a variety of opinions moulded by cultural, moral, legal, and medical considerations.
Proponents of chemical castration as a form of punishment argue that castration can be an effective tool to reduce sexual violence and recidivism rates among convicted offenders by way of reducing their sex drive and impulses to have intercourse.
They contend it to be a humane way of dealing with sexual crimes while also safeguarding societal interests potentially reducing the burden on the prison system and facilitating rehabilitation efforts. Currently, several US states along with various European nations have permitted chemical castration as punishment for sexual violence.
Critics have predominantly argued that chemical castration is not only unethical and violates the prisoner’s constitutional rights but have also questioned its effectiveness in dealing with the root cause and reducing recidivism.
A 2013 study conducted in Korea ascertained that chemical castration led to a reduction in the frequency and intensity of sexual thoughts in sexual offenders, but it was inconclusive whether it reduced the rate of recidivism, the study also elucidated that a year after chemical castration, the hormone-levels had returned to the pre-treatment level. It has also been concluded by academicians that Chemical castration which reduces circulating testosterone to very low levels, results in very low levels of recidivism, despite the strong psychological factors that contribute to sexual offending.
It has also been put forward that chemical castration can be reversed using testosterone boosters resulting in it being ineffective. It also has been highlighted by opponents that the nature of sexual violence is derived from dominance and control over the victim and not just sexual desire. Thus, critics have reasonably argued that chemical castration not only violates basic human rights and is inhumane but also puts forward reasonable doubts concerning its effectiveness.
Human Rights Standpoint
It has been widely argued in various countries that chemical castration violates several human rights that are irrevocable for any individual. Right to reproduction and sexual health which is an auxiliary to human rights are irrevocable for any individual. These basic rights are violated when one opts for chemical castration as a punishment for any offence. In the USA 9 state legislations have provided for discretionary, mandatory, or voluntary chemical castration as a punishment for sexual offenders, American Civil Liberties Union has time and again criticized this measure and claimed that it is violative of the 14th Amendment and the 8th Amendment that guarantee right to privacy as well as Ban on cruel or unusual punishment.
In India, the report submitted by Justice J.S. Verma committee delved deeply into the topic of human rights vis-a-vis punishments like the death penalty or chemical castration. The committee rejected the idea of including chemical castration as one of the punishments for sexual violence and elucidated further by citing Article 7 of the International Convent on Civil and Political Rights (ICCPR), UN Declaration of Human Rights, and CAT. The committee noted it to be unconstitutional and inconsistent with basic human rights treaties. Article 21 of the Indian Constitution guarantees the Right to life which includes a wide variety of rights including the right to bodily autonomy and the right to live with dignity that further entails any act that damages or interferes with any limb or faculty of the individual. Thus, holding chemical castration to be unconstitutional.
Therefore, it can be concluded that chemical castration is violative of human rights that are guaranteed under The UN Declaration of Human Rights, ICCPR, or the basic principles for the treatment of prisoners. But we must take into consideration that capital punishment or life imprisonment is also in some way or another not in consonance with human rights but is still regularly imposed and practiced worldwide.
Legal Status of Chemical Castration in India
Currently, the Indian penal code provides for a minimum imprisonment of 7 years extending up to life imprisonment in cases of rape as per section 376, this may also convert to a death sentence depending upon the gravity of the offense (applicability of rarest of the rare doctrine). However, the present scheme of deterrence has proven to be ineffective in curbing the menace of sexual offenses. The discussion regarding the inclusion of chemical castration as a form of punishment sparked in 2012 after the Nirbhaya incident, which shook the entire country. A draft bill was proposed for the inclusion of chemical castration as a form of punishment, The Indian criminal justice system follows the retributive principle of punishment when it comes to sexual offenses, where rather than seeking reform and correcting the psyche of the offender it merely seeks to imprison them. It ignores how chemical castration can be a form of treatment to cure such sexual disorders allowing the person to re-enter society. Although this might not apply to every situation, in certain circumstances, especially in cases of repeat offenders, the mentality of the criminal is beyond curable, in these situations, a need for harsher punishment to create a deterrent impact surely arises.
Present-day critics argue that chemical castration is in complete violation of Article 21, as it infringes the person’s right to privacy and personal liberty, however, it becomes important to note that rape itself constitutes a breach of Article 21 as it infringes the victim’s right to life and personal liberty.
In conclusion, it becomes necessary for the policymakers to weigh all the perspectives and opinions and enact legislation that balances the needs of both sides.
Conclusion
To sum up, it can be concluded that the discussion around employing chemical castration as a means of punishment for sexual violence is multidimensional and contentious, drawing on ethical, legal, medical, and human rights considerations. While many argue that chemical castration could serve as an effective deterrent and can potentially reduce recidivism rates among offenders, critics raise significant human rights concerns as it is widely viewed as a tool for violation of human rights as guaranteed under the UN Human Rights Declaration, 1948. Furthermore, till date, no conclusive study has been conducted to assess the effectiveness of chemical castration as a deterrent for sexual offenders. The legal status of chemical castration in India remains uncertain, with past proposals for its inclusion as a punishment being rejected due to constitutional inconsistencies.
While understanding the complexities of the issue it is imperative for the policymakers to carefully consider several perspectives and interests involved and balance those to find a way that upholds the rights of both the victim and the offender. In the end, it is anticipated that the legislature will be able to make an informed decision regarding the inclusion of chemical castration as a form of punishment while thoroughly understanding its implications and limitations.
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