What is the ordinance on punishment for rape about?
The Criminal Law (Amendment) Ordinance, 2018, was passed by the Union Cabinet led by Prime Minister Narendra Modi in response to the widespread outrage over the gang-rape and murder of an eight-year-old girl of the nomadic Bakarwal tribe in Jammu & Kashmir’s Kathua district. It was seen as an attempt to underplay the role of two of its ministers in Hindu Ekta Manch, formed in Kathua in support of the accused.
The ordinance enhances the punishment for rape by amending Section 376 (rape laws) of the Indian Penal Code (IPC). The minimum punishment for rape has been increased from the existing 7 years to 10 years now. New sub-sections have been introduced to the IPC section to provide for stringent punishment if the victim is a minor girl. The minimum sentence for rape of a girl below age 16 will now be 20 years jail up to life, with a fine, while every convict in a gang-rape case will be sentenced to life with a fine. Those found guilty of raping girls under age 12 will be handed a jail term between 20 years and life imprisonment, along with a fine, or death; the minimum penalty for gang-rape in such cases would be life imprisonment with fine and the maximum death.
Will sexual abuse of boys be covered?
When Women and Child Development Maneka Gandhi first announced the death penalty for those found guilty of raping children under 12, her ministry had proposed an amendment to Sections 4 & 6 (child rape) of the Protection of Children from Sexual Offences (POCSO) Act. POCSO is a gender-neutral law and covers victims who are both boys and girls. However, the ordinance approved by the Cabinet amends IPC Section 376, meant for only female survivors/ victims of rape keeping in mind their specific vulnerabilities. Since a Bill has to be moved in Parliament to replace the ordinance, the WCD ministry is now planning to include the POCSO amendment so as to provide for the death penalty even in case of rape of boys under age 12.
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Was there no capital punishment in the rape laws until now?
The maximum punishment for rape along with murder of the victim has been death. However, until now, there was no mention of capital punishment under the rape law, but for murder dealt with under Section 302 of IPC. The Justice J S Verma Committee, formed in the aftermath of the December 2012 Delhi gang-rape and murder ruled that “death penalty would be a regressive step in the field of sentencing and reformation”.
Reacting to the discontent in the wake of the case, the then UPA government decided to include the death penalty in the rape law in two specific cases. The death penalty was made the maximum punishment for IPC Sections 376 A (rape causing death or causing the woman to be in a persistent vegetative state) and 376 E (for repeat offenders). This time, the NDA government has responded with the current ordinance, justifying it as being exemplary punishment considering the brutality of the act.
According to the Centre on Death Penalty at National Law University, India has become the 14th country in the world to provide for the death penalty for child rape. The others are Qatar, Bahrain, Jordan, Kuwait, the UAE, China, Cuba, Mauritania, Sudan, Tajikistan, Thailand, Tunisia and Vietnam.
Why is there opposition to the move from those working with victims/ survivors of child sexual abuse?
Capital punishment is all about retribution, disregards the reformative aspect of the criminal justice system, and is said to have little deterrent effect. The primary argument against awarding capital punishment for rape has been that it would drive the accused to kill the victim to get rid of evidence. Also, the new law fails to factor in the fact that a majority of sexual assault cases go unreported due to the child’s silence or lack of support from family members. As per National Crime Records Bureau statistics on rape of women and children, 94% of the rapists are known to the victim, and almost half the perpetrators include the father, a brother, a grandfather, a close relative, and neighbours. Critics feel the death penalty will, therefore, put undue pressure on the girl child to suppress the matter or in some cases turn hostile at a later stage of the trial.
Are there other agruments against the amendment?
One of the striking features of the amendment is its arbitrariness in terms of the cut-off age of 12 years. A study by Rahat, the socio-legal support arm of Majlis Legal Centre, looked at 644 child rape-related FIRs registered between 2008 and 2012 by Mumbai Police under the IPC and the POCSO Act. It found that children aged between 11 and 18 are most vulnerable, accounting for almost 51% of the total cases. Only 2% of the assault cases against children aged between six and 10 resulted in acquittals, while the proportion of acquittals was as high as 38% in cases involving children aged between 11 and 15 years, and 54% in cases where the victim was aged between 16 and 18. It suggested a tendency to disbelieve adolescents or a trend of the victims turning hostile.
There is also the issue of “sentencing arbitrariness” cited by the Justice Verma Committee. Again, a 2016 study by the Centre on Death Penalty found that a majority of death row inmates belonged to the backward section or religious minorities, and were economically vulnerable.
Has anything been suggested as a way to deal with this?
Deterrence of the crime and the victim’s access to justice require both better implementation of existing laws and systemic changes. As reported by The Indian Express, less than 3% of child rape cases that came up before the courts ended in convictions. The pendency rate at the police investigation stage is 31%, and at the trial stage is 89%.This indicates that access to justice, and not sentencing in a handful of cases, is the problem that needs to be resolved. Section 166A of IPC provides for rigorous imprisonment up to two years for a police officer who fails to record the information given to him in cases of rape. This is rarely invoked, although a number victims complain of having been turned away at police stations. The new ordinance provides for fast-track courts, and a two-month time period each for police investigation and completion of trial of all rape cases. But it is mum on the appointment of more judges to handle the burden or sensitising the judiciary and the police in dealing with such cases. It is also silent on victim support and rehabilitation, despite evidence pointing to the need for one so that victim can be facilitated at every stage from the police station, to hospital and courts.