The insufficiency in laws against Acid Attack
Sunil Kumar Yadav
Capital cities are generally supposed to be comparatively safer than any other part of the country. However, the increased acid attacks even within Kathmandu have become a matter of surprise and shock.
Muluki Criminal Code 2074 penalized acid attack and made provisions to compensate the victims. Accordingly, there is provision for five years to eight years of imprisonment to the offender and one lakh to five lakhs compensation to the victim in case of disfiguration of face. Whereas depending upon the harm sustained by the victim, there is provision for three to five years of imprisonment to the offender and fifty thousands to three lakhs compensation to the victim in case of any harm other than disfiguration of face. The Code incorporated this provision to deter potential offenders and compensate the victim along with punishing the perpetrator. However, the increased incidents of acid attack (on an average of five per year from fiscal year 2014/15 to 2019/20) have questioned the effectiveness of the law. Another question underlying herein from the very beginning of the Code, 2074 incorporating aforementioned provisions is “is the compensation provided to the victim sufficient enough for what the victims have already gone through and for what they are likely to go through in future?”
Punishment aims to protect the society by reforming & rehabilitating the offenders. However, there are certain crimes for which offenders must be eliminated from the society because the offenders deserve no better than that. Acid attack is an offense of such kind.
Victims of acid attacks have to live with extensive scars and in a worst-case scenario, with a disfigured face throughout their live. Their appearance itself haunts them like a bad dream. The trauma, victims have to go through, the complex life that they have to live with is so inhumane that there is no human who is not scared of being victim of the offense.
Apart from this, we live in a society where everyday TV ads pop up to advertise fairness product and to glorify fair skin. Beauty matters in our society like nothing else. It is for this fact living with disfiguration is nothing less than a living hell for the victims. They suffer intensive psychological trauma. This suffering is not limited to a day or two. While this ever-lasting suffering does not end for the victims, to add fuel to the fire, their offender walks out of prison by merely serving sentence of just 8 years of imprisonment (that also if sentenced for maximum imprisonment). Imagine how unjust and unfair is it?
The intensity of the suffering in acid attack is so high and yet the punishment is low. Besides, the Code provides discretionary power to judges while sentencing. For disfiguration of the face, judges have discretion to punish the offender for five to eight years of imprisonment. This means that judges may sentence the offender for even five years of imprisonment. (Arguments are linked with the worst-case scenario for the victims of acid attack).
One of the first arguments is that, the punishment to the offender in acid attack is not enough from the point of view of justice. The offense is against human integrity. Victims have to suffer their whole life, because every other moment their appearance will remind them of the inhumane act of offender. At least for the sake of victims and of justice, punishment should be increased.
As to answer how long the imprisonment should last, we should draw references from international practices. England, the pioneer of common law system, provisions up to life imprisonment for carrying out an attack with corrosive materials. The degree of offence is considered so high in United States that, a 61-year-old white accused of throwing acid on Hispanic man’s face in US –state of Wisconsin was charged with a hate crime in 2019. The offense, in India, is punishable with imprisonment of at least ten years that may be extended to imprisonment for life depending upon the damage suffered by the victim.
Based on suffering and threat it casts in the society, it is even more dangerous and grievous than any other traditional crime. Therefore, Nepal must introduce a maximum of life imprisonment and a minimum of ten years of imprisonment to the perpetrator of an acid attack depending up on the damage sustained by the victim.
Second argument is that, judges shall not be given discretionary power while sentencing the offender of acid attack. Acid attack can hardly be unplanned. The attack cannot be unintentional and haphazard. Thus, in cases of intentional disfiguration of face by acid attack, providing room for judges to exercise their discretion while sentencing as provided in the Code is principally flawed concept. Discretion shall not be given at least in disfiguration. Lawmakers, in this regard, must be careful and smart enough to slay down such loopholes as early as possible. Standard and more scientific categories of punishment depending upon the harm and damage suffered by the victim must be swiftly introduced for the removal of loophole in the existing law.
Victims have to suffer for the crime offenders have committed against them and what they get as compensation is just one lakh to five lakhs rupees, which hardly cover their medical costs. The point is, compensation as per the Code to the victim is not enough compared to the damage they bear. The Suffering of the victims makes the compensatory provision of the Code unscientific and absolute.
India has provisioned for up to eight lakh compensation (for disfiguration) and has encouraged states to make law for greater compensation to the victim. This is just an example. I do not suggest limiting the compensation to eight lakhs. What I suggest is that depending upon the physical harm suffered the compensation has to be at least enough to alleviate the stress and anguish that the victims suffer. This might look like a subjective assessment of pain and suffering. Therefore, I also suggest the lawmakers to come up with more scientific compensatory scheme.
Another prominent question allied with compensation is that “can the offender pay the compensation?”
In cases, the offender is financially weak; the state must take up a guardianship role and bear the entire burden to compensate victims sufficiently. It shall also bear the burden of providing proper financial and social security to the victims throughout their life because ultimately, it is the failure of the state to discharge its duty to protect its citizens from harm. Doing so shall not be considered as charity to the victim. It is rather their right to get sufficient compensation and proper support from state.
What other measures shall the state take to curve down the rates of acid attack?
Apart from making sufficient scientific changes in the punishment and compensatory provisions of the Act, the state shall put a complete ban on the sales and purchases of corrosive substances including acid if possible. If not, it must be regulated by licensing sales and distribution of corrosives. In order to minimize acid attacks, even possession of corrosives without license must be penalized. For this, the lawmakers must consider to introduce proper laws promptly.
(Author Sunil Kumar Yadav is pursuing LLM in criminal law at Kathmandu School of Law. He is available at Ydv.firstname.lastname@example.org .)
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