The Criminal Law (Amendment) Ordinance, 2018, was passed by the Union Cabinet in response to current widespread outrage against rapes.
While the ordinance has enhanced punishments, there are glaring systemic deficiencies that need to be addressed to genuinely improve the situation.
What were the major aspects of the ordinance?
Provisions - 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 (minimum for raping an ‘under 16’ is 20 years).
All convicts in a gang-rape case will be sentenced to life and the maximum punishment for raping an ‘under 12’ has been enhanced to include death.
Gender Sensitive - “Protection of Children from Sexual Offences (POCSO) Act” is a gender-neutral law and covers victims who are both boys and girls.
However, the recent ordinance approved by the Cabinet has been worded to be stringent only against sexual crimes against females.
This was probably due to their specific vulnerabilities, but “Ministry of Women and Child Development” has asked for making the ordinance gender neutral.
Was there no capital punishment in the rape laws until now?
While many verdicts have granted the maximum punishment of death for ‘rape along with murder’, a death sentence wasn’t an option for ‘rape alone’.
In the aftermath of the December 2012 Delhi gang-rape and murder, the justice JS Verma committee had decried ‘Death Penalty for rape’.
The committee held that granting death for rapes would be disproportionate and regressive in the context of sentencing and reformation.
As the committee’s views created public discontent, the then government decided to include death as the maximum punishment in two specific cases.
Hence, death for rape was to be an option – for repeat offenders, and for rapes that cause the victim to go into a permanent vegetative state.
The current ordinance enhances the scope for granting death to rapists.
Notably, this development makes India the 14th country that has death sentence as an option for convicts in rape cases.
What are the arguments against the ordinance?
Capital punishment is all about retribution, disregards the reformative aspect of the criminal justice system.
Additionally, there is little evidence to support that it has a 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.
The ordinance seems to disregard the fact that a majority of sexual assault cases go unreported due to the child’s silence or lack of family support.
Significantly, as per the statistics of “National Crime Records Bureau (NCRB)” on rapes, 94% of the rapists are known to the victim.
Hence, critics feel that the incorporation of death penalty as an option will put the victims under pressure to suppress the matter and not pursue the case.
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 the dire need for such actions being felt across the spectrum of the judicial process and further.
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.
There is a huge pendency of cases – all of which needs to be fast-tracked through political will and coordinated action.
There are provisions for taking actions against police officers who dissuade complainants from filing cases by coercion (or persuasion).
But these are rarely invoked, although a number of victims complain of having been turned away at police stations.
There are also considerable biases in verdicts as most convicts seem to be from the poor sections of the society.
Notably, this is despite the fact that offenders are prevalent across the socio economic spectrum.
