Two days after the Centre approved an ordinance that allows courts to award the death penalty to those convicted of raping children below 12 years of age, the Delhi High Court Monday questioned the move and asked the Centre if any scientific assessment was conducted or the view of victims taken before the ordinance was approved.
The HC also sought to know if authorities concerned had considered the consequences of the ordinance to victims. “Have you (Centre) conducted any scientific assessment or study before passing of your ordinance,” a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar said, adding “is death penalty deterrent to rape now?”.
The Ordinance was approved after outrage over the rape and murder of an eight-year-old girl in Kathua, and allegations of rape against a BJP MLA in Unnao, Uttar Pradesh.
“Have any victims been heard? If the punishment for both murder and rape is same, it is a huge consequence. Can you imagine now, how many offenders would allow their victims to survive now that rape and murder have the same punishment,” the bench observed.
It also sought to know from the respondents, including the Centre, if decision makers had considered educating offenders, a majority of whom are below 18 years of age.
“Have you been to the root cause of the crime, or it is effect of the public outcry,” the bench noted. The bench further observed that most of the offenders are close family members. “Will the family members come out and depose against their relatives family.”
The high court said the government was “not even looking at the root cause” or “educating people” as the offenders are often found to be below the age of 18 years and in majority of the cases, the perpetrator is someone from the family or known to them. It further questioned whether any victims were asked what they want before coming out with the ordinance.
The ordinance to amend POCSO Act for allowing death penalty to rapists of girls under the age of 12 has been promulgated by President Ram Nath Kovind.
The High Court’s oral observation came while hearing a plea challenging the Criminal Law (Amendment) Act 2013, brought in after the December 16 gangrape and murder of a 23-year-old in Delhi, in which a penal provision – a minimum seven-year jail term – for a rape convict was included and the court’s discretion to award less than that was taken away.
The specific remarks by the bench were made when an organisation, concerned with sexual violence all over the country and is also a party in the PIL, raised questions over the maintainability of a PIL challenging amendment of the Criminal Law Act 2013.
The counsel for the organisation said that since a new ordinance was brought by the government, the present plea did not survive and that the petitioner needed to modify the prayer.
A joint petition before the bench of the Acting Chief Justice was filed by social activist Madhu Purnima Kishwar, a Tihar jail prisoner and the wife of another accused in the HC, alleging that the amendments to Section 375 and 376 (rape and sentence) under the IPC is “discriminatory and arbitrary”.
The plea cited data of rape cases given by the Delhi Commission for Women after the amendment in 2013 and alleged that the law has been misused widely. The petitioners have said the law was not judiciously crafted and that it was misused widely and in most of the cases complaints were lodged to take revenge.
Based on the Justice J S Verma Commission report, the government had approved amendments to laws concerning sexual assault, which included stringent punishment and increased the age to consent from 16 to 18 years.
Opposing the same, the Centre’s standing counsel Anil Soni said that misuse of certain provisions of the law cannot be a ground for striking down the provisions. “There are enough provisions in law to deal with false allegations. The laws are being made to be more victim-friendly. Hence, providing anonymity to the accused may not be a step in the right direction,” the Centre said in its affidavit. The court has now fixed the matter for further hearing on September 10.