In Focus

Ordinance ensuring death for rape in ‘certain’ cases

By Kriti Kalra

Following the committee’s recommendations, the Criminal Law (Amendment) Act, 2013 was introduced providing for amendment of Indian Penal Code (IPC), Indian Evidence Act (IEA), and Code of Criminal Procedure (CrPC) on laws related to sexual offences. Death penalty for rape was introduced, for the first time in India’s penal history, only when the act caused the victim’s death or caused the victim to be in ‘a persistent vegetative state’. Punishment for “gang rape” was made minimum twenty years to life imprisonment.

Post the Kathua incident in January 2018, the nation-wide protests demanding death penalty for the rapists of the girl child led to the cabinet approving a Criminal Law (Amendment) Ordinance, 2018 in April 2018 to amend the POCSO Act, the Indian Penal Code, Indian Evidence Act and Criminal Procedure Code.

The ordinance introduced stringent punishments - jail term of minimum 20 years or life imprisonment or death for rape of a ‘girl’ under 12 years. Simultaneous amendments were introduced in the IPC, IEA, CrPC and POCSO to reflect the same.

Additionally, the minimum punishment for rape was increased from seven years to 10 years; the maximum punishment remained the same – life imprisonment. A new clause (3) was added to Section 376 of the IPC prescribing the minimum punishment of 20 years to a person committing rape on a ‘woman’ under 16 years of age and a new Section 376AB was inserted prescribing the minimum punishment of 20 years rigorous imprisonment to a person committing rape on a woman less than 12 years of age.

Such a person can be awarded capital sentence as well. Sections 376DA and 376DB provide minimum punishment of life imprisonment for persons involved in gang rape of woman aged less than 16 years and 12 years respectively.

The Criminal Law (Amendment) ordinance made the punishment more stringent but did not address the problem in toto. Additionally, the provisions in the ordinance were ‘unconstitutional’, violative of Articles 14 and 16 of the Indian Constitution that guarantee equality to all before law and could be challenged in court.

The sexual abuse of minor girls and minor boys would now be treated differently in the eyes of the law. When a child is abused, the trauma for a boy child is no less than that of a girl child. So, differential legal treatment to the same offence was bad in law. As it is, incidents of rape of minor boys rarely come out in the open due to the stigma attached and are shrouded in secrecy, with families of the male victims even more reluctant than those of female child victims to report such incidents.