Author: Yashraj Verma, III year of B.A.,LL.B from Savitribai Phule Pune University, Shankarrao Chavan Law College Pune.
Co-author: Basil Jaison, III year of B.A.,LL.B from Savitribai Phule Pune University, Shankarrao Chavan Law College Pune.
Chemical Castration is a procedure that uses specific drugs to lower the production of hormones in testicles. This procedure has been widely used in various countries as a form of punishment to treat rapists, especially paedophiles, but the functionality of the procedure is still being debated based on its functionality and the rights of the offenders. India, a country that believes in a reformative form of punishment, throughout history has been vigilant in introducing new punishments into the penal code, and that being said, chemical castration has always been opposed as it is primarily non-humanitarian and violative of fundamental rights.
The chemical castration is most certainly to be seen as a punishment, but the area of importance is that the same procedure is a biological treatment that can be used to treat sex offenders and paedophiles. The method of chemical castration can be imposed on sexual offenders so that after the specified punishment when they re-enter society, such crimes are not repeated.
The reformation of criminals also aligns with the method, as such methods even though they are imposed as a punishment will ensure that such crimes are not repeated in society again. The difficulty lies in the fact that the method of chemical castration if implemented into the penal provisions of India will pose a difficulty because the use of such methods doesn't guarantee suppression of sexual behaviour with therapists, as it only shows a considerate decrease in their behaviour. So the method can be called a way of reformation that aims to curb the issue of rape and sexual atrocities that is yet to be tested and certified.
WHAT IS CHEMICAL CASTRATION?
Chemical Castration is a test that is usually performed on sexual offenders as a reformative method with the use of certain drugs like cyproterone acetate (CPA), medroxyprogesterone acetate (MPA) and a group of drugs known as GnRH i.e (gonadotropin-releasing hormone) agonists, which are classified as anaphrodisiac substances that lower the sexual libido by lowering the production of hormones in your testicles.
This is not a procedure the world at large is new to. This kind of castration was used as a punitive order against sexual offenders since the 1940s. The test of chemical castration can be considered as andropause that tantamounts to menopause in women. But when the use of these drugs while performing the test of castration is withdrawn, it is found that the level of testosterone comes back to its normal level as it was before the use of these drugs. So this test cannot be used as a panacea to curb the sexual urges of sex offenders, and eventually, it might not prevent reoffending through it may low the recidivism rates of the offender.
LAWS PERTAINING TO CHEMICAL CASTRATION ACROSS THE WORLD
Chemical castration has been accepted in various countries across the world as a form of reformative punishment to curb the most inhumane act that is undermining the survival of a smooth society: rape. In the United States of America, legislations in the states of Georgia, Montana, Oregon, Florida, California, Iowa, Louisiana, Wisconsin provides for chemical castration to be performed as a part of the punishment or as a condition for the release of sexual offenders, especially paedophiles.
In Europe, mandatory chemical castration is envisaged in the Penal Code of Poland with the reform of the Polish Penal Code in 2009 which envisages the mandatory chemical castration for perpetrators of the criminal offence, “Sexual Assault of the Child under the Age of 15 years”.
The Estonian Parliament has also approved the legislation for chemical castration in 2012, and the courts are given the power to impose a course of medical treatment on sexual offenders. Other countries including the United Kingdom and France have also adopted the chemical castration legislation as a voluntary procedure and in the criminal legislation of the Republic of Macedonia, chemical castration is incorporated as a criminal sanction in 2014, and with this Macedonia became the first country in the region (Balkans) which treats child molesters with medical treatment.
Such legislation being imposed in various countries is a clear example that the method of chemical castration can be a punitive method to biologically treat sexual offenders, and it is very important to consider such legislation to be invited to India, where heinous sexual offences and child sexual abuses have been on the rise.
In India, the concept of chemical castration was a concept that couldn’t reach the path of enforceability as this procedure is considered to be unconstitutional considering the fact that India believes in the reformative culture of punishment, not the retributive culture. The justice Verma Committee which was constituted to propose the criminal amendments in the year 2013 strongly opposed the idea of chemical castration on rapists stating that it was unconstitutional and was violating the basic human standards.
The committee also pointed out that the process of chemical castration does not treat the social foundations of rape, which are power and sexually deviant behaviour. So, the idea of castration as a possible punishment could not get any validity under the report. After this, in the year 2015, Madras High Court in a trial hearing of a case on sexual assault by a British national on a 15-year-old boy recommended that chemical castration must be considered as a punishment in the case of paedophiles.
Justice N Kiribakaran while expressing his views mentioned the court cannot act as a silent spectator while the cases of rape and sexual assaults are increasing, especially on children. It was also stated by the judge that the method of chemical castration may seem like a barbaric method, but barbaric crimes must attract such punishments. In this case, too, no further developments took place as it was considered inhuman. So, in India, there is great ambiguity regarding such methods as it is advocated by many that it clearly violates the fundamental rights of the person, and it goes against the values enshrined in the constitution of India.
CHEMICAL CASTRATION VIS-A-VIS FUNDAMENTAL RIGHTS
The most evident reason as to why chemical castration does not work in India is that India is a country that deeply behaves within the concept of fundamental rights, and any act that violates the fundamental rights of any person, be it a convict, will always be opposed.
Now, chemical castration directly violates the Right to Privacy and Right to Self-Autonomy as such methods interferes with the personal and bodily life of an individual with making changes that deforms the personal capacity to enjoy life. Chemical castration restricts the right of autonomy of a person as the capacity of the offender to enjoy his sexual life is being taken away.
It restricts the person to lead a sexual life during the course of the employment of drugs, and such obstruction causes bodily and mental changes that violates the factors of Right to Life as mentioned in Article 21. Right to life includes the right of a person to choose and in regards to sexuality such autonomy is to be seen as a fundamental bodily function.
It also infringes the right of privacy of the offender because the matters regarding sexuality are to be decided by the individual itself, and the state intervening by employing a method that creates a personal bodily change is violative of the right. The right to privacy also contains reproductive choices, and the state by employing methods that biologically alter the choice can be certainly stated as a grave violation of the rights of a person. So the workability of such methods in the context of a country like India deeply entrenched in constitutional rights is a questionable matter.
CRITICISM OF CHEMICAL CASTRATION
If a sexual offender is treated with chemical castration, he may observe some of the side effects due to the use of these anaphrodisiac substances that may reduce sexual desire, erectile dysfunction, fatigue, hot flashes, shrinkage of testicles and penis, etc.
If a sexual offender is prone to this test of chemical castration for a prolonged period, he may end up with defects like osteoporosis, impaired glucose, depression, infertility, anaemia, loss of muscle mass, etc affecting his overall health which is a part of basic human rights of an individual.
The offender may also be at risk of diabetes, heart attack, stroke and high blood pressure, which means this test can be fatal as well risking the life of the offender.
In India, castration of people is not allowed as a punishment for rape no matter how outrageous the act is, as it violates Article 21 of the Indian Constitution "Right to Life& Personal Liberty". Both the Universal Declaration of Human Rights and Article 21 succeed in living with dignity under the ambit of the right to life and personal liberty.
The Indian Constitution, common law principles, and almost all well-known laws state that punishment must be proportionate to the crime or wrongdoing. But whether the test of chemical castration on the sexual offender is proportionate is the point of concern as it violates Art 21 Right to life and personal liberty along with an individual's right to privacy.
The Justice Verma Committee which was formed for the purpose of a bill on chemical castration had ruled out chemical castration and said it had not "dealt with the social foundations of rape that have to do with the power and sexually deviant behaviour of the offender towards the victim." In its opinion, the constitution is the supreme law of the land that does not allow mutilation of the body.
The third person’s perspective is easy to rationalize and theorize, but what the spectator needs to understand is that when you are a victim, your perspective on everything changes, and you tend to see the world from a different angle. But that does not mean that when the law is ineffective and cannot cope with the menace, the court should hold its hands together and be silent as a spectator. Definitely, Court being the guardian of the supreme law of the land, should step in and interpret the law in such a manner so as to impart justice to the victim with utmost efficacy.
The Indian Criminal Justice System is more of a reformative rather than being retributive in its approach. But modern-day opponents of the test of chemical castration reasonably criticize it for being violative of Art 21, which is fundamental in nature is it defeats the very essence of the right to life and right to privacy.
So though chemical castration can be a good form of reformative method to deter the sexual offenders from committing sexual offences on the contrary in India, this test does not find a significant scope to be used as a reformative method as "We the people of India" are supreme and any test, law legislation which is in contravention of our fundamental rights guaranteed to us by the supreme law of the land will be null and void.