Written By: Riya Bhardwaj[1]

Introduction

Chemical castration is a means of testosterone reduction which was brought into action in countries like Switzerland, Holland, Germany, Finland, Iceland, and Denmark for sex offenders (Rape, abuse, etc.). However, with the course of time the process this method was used upon homosexuals. In Britain, since homosexuality was a crime, the people accused of the same were given two options, either get imprisonment for the crime or if they want, they have to undergo the “Chemical Castration” treatment.

Homosexuality was seen as crime as well as an illness. So, it was  proposed by the Jurists in UK that the person charged with the offence of homosexuality must be give a chance to cure his illness, which he has to sign up for voluntarily. The rationale behind using chemical castration as method was to decrease the libido in homosexuals which decreases their engagement in any sexual activity.

Lord Devlin did not supported legislation on the basis of hostility alone; he also required calm, dispassionate reason in order to limit the number of legal prohibitions to those that were absolutely necessary.[2] Under his “man in the jury box” approach, Devlin only permitted the state to enforce a matter of morality if it met three requirements, unanimity; patient, reasoned deliberation; and direct effect.[3] Particularly, this approach does not require any analysis as to whether the common morality is good or bad but merely whether such a morality exists.[4]

The author has divided her research in three folds, firstly the research aims at whether chemical castration is the need of the hour in India, secondly whether chemical castration could be used upon criminals in India and finally the author concludes whether Lord Devlin’s claim of legal moralism justifies chemical castration.

Position of Chemical Castration in India

There are many countries where chemical castration is used upon sex offenders. The latest county to adopt this punishment is Pakistan. It has approved the chemical castration of rapists as part of sweeping new legislation sparked by outcry over the gang rape of a mother on a motorway.

In India, several times people, lawyers, activists, etc. have demanded the use of Chemical Castration on sex offenders. After the infamous incident of Nirbhaya Rape Case, there were protests and people demanded chemical castration to be used upon the offenders.

Is Chemical Castration the need of the hour?

Chemical castration is developed as a more humane and reversible alternative to surgical castration for sex offenders. The treatment is usually performed by injecting chemicals every month or every 90 days, and consists of one of several medications that reduce male patients’ testosterone to prepubescent levels. Castration can help keep some sex offenders from re-offending. Research on chemical castration has shown it to be effective in reducing recidivism.[5]

But the treatment has many potential side effects, including death as observed in Alan Turning case. Patients need a thorough explanation of these side effects in addition to a medical evaluation to determine if the treatment is safe for them, however, and not all states that require chemical castration provide for that.

It has been observed in Ediga Ananima v. State of Andhra Pradesh[6] that, “Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; hence the principle inherent in the clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purpose invalidates the punishment”. Thus came the “rarest of rare cases” principle in invoking death penalty in sentencing jurisprudence.

Based on the above contentions the author is of the view that chemical castration, might appear different from death sentence or physical castration (which leads to death), however, in use it’s more or less the same. There are high chances that the people, who undergo chemical castration, might lose their life if the medication is not proper. Hence, it might be argued that Chemical Castration is not an alternative for death penalty rather it acts as a mean to achieve the end. Moreover, chemical castration isn’t appropriate for all sex offenders. People engage in sexual offences for a multiple of reason, sexual desire is one of them. For people who sexually abuse women or child simply because of opportunity or because they have antisocial personality disorder, for them lowering their libido is not going to solve the problem. The treatment also does not work on women, who can be a culprit of registered sex offences for children.

The option is not truly free or informed

It is argued that offenders voluntarily agree for chemical castration. However, voluntary consent depends upon a person’s ability to make a choice freely. The convicted offender is provided with two options—a lengthy prison sentence or even death on the one hand and chemical castration on the other. This cannot be said to have the capacity to act freely in making a choice. Freedom of choice is impossible because the offender’s loss of liberty constitutes a lack of such a magnitude that he cannot choose freely and voluntarily, but he is forced to give consent to an alternative he would not otherwise have chosen. In such circumstances men are willing to “barter their bodies.” Therefore, the convicted offender cannot give voluntary consent to an offer of probation which contains a chemical castration.[7]

Given the context in which the chemical Castration is offered, it is questionable whether consent to the option of such castration will always be truly free and informed. As was found during the visit for conducting a research, a situation can easily arise whereby patients or prisoners acquiesce rather than consent, believing that it is the only available option to them to avoid indefinite confinement[8]

Rights of the Convict

The ICCPR remains the core instrumental treaty on the protection of the rights of the prisoners and it provides for “no one shall be subjected to cruel, inhuman or degrading treatment or punishments.”[9]

Humanistic interpretation of the law which was acknowledged by Justice Iyer aims at making the life of convicts in prison less unbearable as it has been for over a century. In the landmark judgment of Sunil Batra, Justice Iyer in order to bring rule of law, human rights and constitutionalism inform treatment of convicts in prison in the country by observing “In our constitutional order it is axiomatic that the prison laws do not swallow up the fundamental rights of the legally unfree and courts will guard freedom behind bars… The benign purpose behind deprivation of freedom of locomotion and expression is habitation of the criminal into good behaviour, ensuring social defense on his release into the community. This rationale is subverted by torture, antagonism and bitterness, which spoil the correctional process.”[10]

It has to be understood that for what is punitively offensive, scandalizing unusual or cruel and is counterproductive of rehabitation, is on the face of it as well as in practice unreasonable and arbitrary, and is violative Articles 14, 19 and Art. 21 must not be practiced inside the jail as well. Part III the Constitution does not part company with the prisoner at the prison gates, and judicial oversight protects the prisoners’ shrunken fundamental rights.

Chemical castration is a process which can be used only on male inmates and not on female inmates which is violative of Article 14 that provides for like should be treated alike, and also contemplate the concept of reasonable classification.

Conclusion

The claim of Lord Devlin that “the central function of the criminal law is to simply enforce a moral principle” fails to acknowledge the changing times and is irrelevant in the present day scenario. The argument fails to address the punishment that should be given to enforce the moral policing and hence, it has been subjected to the undue use of justified chemical castration.  In India even the jurisprudence of death penalty is acknowledged in rarest of the rare case. In a country, where majority of sexual offences happen due to the opportunity rather than sexual desires; where percentage of women abusers in case of sexual assault of children, in such a country opting for chemical castration would be violate be several principles and rights of prisoners as well as it won’t serve the purpose.


REFERENCES:

[1] National University of Study & Research in Law, Ranchi.

[2] Patrick  Delvin, The Enforcement of Morals vi-vii (1965), at ix, 90.

[3] Id. at 90.

[4] Id. at 89-90.

[5] Weinberger LE, Sreenivasan S, Garrick T, Osran H. The impact of surgical castration on sexual recidivism risk among sexually violent predatory offenders. J Am Acad Psychiatry Law. 2005;33(1):16-36.

[6] Ediga Ananima v. State of Andhra Pradesh, AIR 1974 S.C. 799.

[7] Green W. Depo-Provera, castration, and the probation of rape offenders: Statutory and constitutional issues. University of Dayton Law Review. 1986;12(1):1–26.

[8] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 2009. http://www.cpt.coe.int/documents/cze/2009-08-inf-eng.pdf.

[9] ICCPR, 1966, Article.10

[10] Sunil Batra v. Delhi Administration, AIR 1978 S.C. 1675.

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