What we needed was a cure for cancer and yet, what we got was seemingly a well-intentioned band-aid. Amid growing anger over rising incidents of child rape cases, the Centre, in a letter submitted to the Supreme Court on the 20th of April, had said that it has started the process to amend the Protection of Children from Sexual Offences Act (POCSO Act), 2012, to ensure maximum punishment of death penalty in child rape cases where the victim is under 12 years of age, as reported by ANI. During the same time, Delhi Commission for Women Chairperson Swati Maliwal was also on a hunger strike for nine days and had sent the PMO multiple letters asking the PMO to introduce death penalty. The questions from the Supreme Court bench, pressure from the Delhi Commission for Women Chairperson and demands from certain sections of the civil society seem to have made the Government rush and push out an Ordinance which leaves a lot to be desired and honestly won’t solve the core problems.
In all fairness, Ms Maliwal, she had six demands, including the passage of a law introducing the death penalty for rapists of children and recruitment of police personnel as per the United Nations standards and fixing accountability of the police force. She had also sought that files relating to the recruitment of 14,000 police personnel – approved by the Union home ministry but pending with the finance ministry – be cleared. Ms Maliwal had also put forth her demand for constitution of a high-level committee, comprising Delhi chief minister, home minister and Lieutenant Governor to review the safety of women in the national capital, and also demanded that the Government create new fast-track trial courts to deal with offences of sexual assault against minors.
While a lot of news reports, Facebook posts, and Whatsapp forwards are stating that the Ordinance has met all, if not most of Ms Maliwal’s demands, the truth is far from it. The Ordinance does not set up any new fast-track courts. Nor does the Ordinance do anything to tackle procedural issues and appalling conviction rates under POCSO. Nor is this the first time death penalty has been introduced for an offence related to rape. Under the Criminal Law (Amendment) Act, 2013, a person who in the course of a sexual assault inflicts an injury that causes the victim to die or to be left in a “persistent vegetative state” is punishable by death. Repeat offenders of gang rape are also punishable by death. But since 2013, such a law has made no significant effect on the statistics of reported rape cases.
Leaving aside objections to death penalty, and procedural issues like lack of proper infrastructure at the Special Courts to handle POCSO cases, low conviction rates, and lack of Judges at almost every single Court in India (The Kolkata High Court Bar Association had recently gone on a historic 59 day strike due to lack of enough Judges being appointed to the Kolkata High Court, and the Central Government has been sitting on the appointment of 2 Supreme Court Judges from January 2018), ultimately leading to over two crore pending cases, the current Criminal Law (Amendment) Ordinance, 2018, also has some legal issues which raises questions as to why it was drafted the way it is.
Two following critical legal issues are highlighted below;
- Different timeline for investigation based on Gender of Victim
The Criminal Law (Amendment) Ordinance, 2018 [hereinafter referred to as the CLO 2018], makes major amendments to IPC, CrPC and Evidence Act.
Section 13 of the CLO, 2018 replaces the words, “investigation in relation to rape of a child may be completed within three months” with the sentence , “an offenses under Section 376, 376A, 376AB, 376B, 376C, 376D, and 376DA, Section 376 DB of the Indian Penal Code should be completed within 2 months.”
While this all looks nice and good on the face of it, the Sections 376, 376A, 376AB, 376B, 376C, 376D, and 376DA refer to a rape of a female child, whereas POCSO, is specifically gender neutral. That is exactly why the old Section 173 1(A) of CrPC (which is being amended by Section 13 of CLO, 2018), had mentioned “child”. Section 173 1(A) was inserted by Criminal Law (Amendment) Act, 2013 because POCSO is gender neutral
The Ordinance has effectively stated that if the victim of rape is a female child, the investigation has to be done within two months, but if the victim is a male child the law is silent.
2) Different punishment based on Gender of victims
The only Section of the CLO 2018 which effects the POCSO is Section 24. Section 24 of CLO 2018 states, “In Section 42 of Protection of Children from Sexual Offenses Act, 2012, for the figures and letters, ” 376A, 376C, 376D”, the figures and letters, “376A, 376AB, 376B, 376C, 376D, 376DA, 376DB”, shall be substituted.
Section 42 of POCSO previously stated (prior to this amendment), “Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree”
Essentially if an offence is one punishable under BOTH POCSO and IPC, then whichever act provides the higher punishment would have been considered (you cannot be punished under both acts separately- CrlA 195/2016 Bom HC).
This was again all good and well till before the Ordinance, as even though rape of a male child is not an offence under IPC, the punishment under IPC and under POCSO were essentially the same. But now, with IPC having death penalty for rape of female child below the age of 12, it makes it so that in case the victim is female, the Courts will punish under IPC and may impose death penalty, but if the victims are male the Courts will punish under POCSO and cannot impose death penalty.
Which essentially makes it so that the Courts will have to differentiate on the gender of the victim while imposing punishments for two similar crimes of the same magnitude. This differentiation would not stand the test of Article 14 of the Constitution of India.
That said and done, the imposition of the death penalty will actually reduce the National Crime Records Bureau statistics about the number of rapes in our county. But not for the reason we think.
For one if the punishment for murder and rape is the same, the accused would be incentivized to kill the victim to try to better hide the crime. But the NCRB records rape and murder as only murder for the purpose of its statistics. The rule the NCRB follows is known as the Principle Offense Rule, that is for the purpose of statistics, the NCRB will only consider the greater crime. So if a rape victim is murdered, NCRB records it as a murder and not as a rape, which in turn gives extremely wrong statistics about the actual rate of crime in the country.
Hence with a possible increase in rapes leading to murder, reported crimes would move from the rape column to the murder column, which will portray a false image of fall in reported rape cases, without any net gain to the society.