The Criminal Law (Amendment) Ordinance, 2018, was passed on April 21 in the aftermath of the infamous Kathua rape case, where a girl child, aged 8 years, was gang-raped and brutally murdered.
The ordinance has brought changes to the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act. The ordinance, though approved in the aftermath of the Kathua and Unnao rape case, will not apply to those cases in the light of the guarantee under Article 20 of the Constitution which does not recognise ex-post facto criminal laws.
What then was the urgency for an ordinance? It seems to be scoring political points. Neither the death penalty nor harsh punishments will ensure conviction, rather they may even have the effect of driving reporting underground.
After the 2013 Criminal Law Amendment, under Section 376 in subsection (1) the minimum punishment was seven years rigorous imprisonment which could extend to life and fine, thereby taking away the powers from the courts to give a punishment for less than seven years of imprisonment.
Earlier, the court had the discretion to reduce the punishment below seven years for reasons to be recorded in writing. This power to reduce was being abused by the judges who were using their discretion for frivolous reasons, hence it became necessary to amend the law to take away the power to reduce the minimum sentence.
The ordinance has now made the change where the minimum punishment is 10 years of rigorous imprisonment which can extend to life and reasonable fine to meet medical expenses and rehabilitation of the victim.
A subsection (3) has been added, whereby any person who commits rape on a woman under 16 years of age shall be punished with rigorous imprisonment which shall not be less than 20 years to life, where life is the remainder of that person’s natural life and shall also be liable to fine.
A new section has been added after 376A, as 376AB, which provides punishment for rape on a woman under 12 years of age, where minimum punishment is 20 years of rigorous imprisonment which can extend to life with fine or a death penalty. This is the first time in the country that death penalty has been introduced for the crime of rape.
After the 2013 Criminal Law Amendment Act, the punishment for gang-rape under 376D, on a woman of any age, was made to be a minimum of 20 years which could extend to life, meaning the remainder of the natural life of the convicted person. Here again, the power to give a punishment less than 20 years imprisonment was taken away by the legislature from the courts.
Under 376D, where the punishment for gang-rape is given under the code, following changes and additions have been made after the 2018 Ordinance:
Adding 376AD - punishment for gang-rape on a woman under 16 years of age where minimum punishment is imprisonment for life, which shall mean the remainder of a person’s natural life and fine.
Adding 376 D – punishment for gang-rape on a woman under 12 years of age is punishment for life, which is the reminder of a person’s natural life with fine or death.
The Pocso Act, which came in 2012, laid down strict punishments for crime against children. The punishment for a penetrative sexual assault under Section 4 of Pocso Act is minimum seven years of imprisonment which may extend to imprisonment for life with a fine. The punishment for aggravated sexual assault under Section 6 is minimum rigorous punishment for 10 years which may extend to life with a fine. However, in the light of Section 42 of Pocso, the higher of the two sentences will be given, that is a punishment under the Indian Penal Code will prevail.
By far, the most unconstitutional part of the ordinance is likely to be the mandatory punishments ranging up to 20 years. The mandatory nature takes away the discretion of the judge. Every sentence must fit the crime.
While the amendment of 2013 did also introduce a mandatory minimum of seven years, from there to mandatory 20 years is a huge jump.
A law can understandably make a distinction between the punishment for rape of a child below 12 years and of an adult for the reason that the child below the age of 12 years is not aware of her own sexuality, and the accused exploits the unawareness of the child.
But it is difficult to comment on what should be the minimum punishment for rape of a child below 12 years of age or below 16 years of age or of rape of an adult (above 18 years of age), any figures in this context will be arbitrary.
One thing, however, can be said with certainty. To impose a death penalty for rape will be counterproductive, it will only drive the crime underground. Given that most child abuse occurs within the family by a known person, a victim will be reluctant to report the crime knowing it could result in death.
One of the solutions that can be considered is the confiscation of property of the accused on conviction, in addition
to the compensation provided by the state under 357A or the fine levied on the accused. No law has yet considered such a solution.
The recent judgment in the case of Asaram Bapu, where he stands convicted of rape, the fine of a mere sum of Rs 1,00,000 has been imposed, whereas his net worth, including the schools, ashrams etc., is approximately Rs 300 crore.
Reforms in law are needed not to impose harsher punishments but to hand-hold the victim and support the family through the trial. The ordinance is vulnerable to challenge on more grounds than one.
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(The writer is an advocate in the Supreme Court)