This article is written by Nikunj Maheshwari. Here he discusses the Criminal Ordinance, 2018.
Socio-Legal Journey Of Rape As A Crime
Kailash Satyarthi, the Nobel Peace Prize winner and a child rights activist have aptly described the gruesome nature of rape: “The rape of our children is the erosion of the ideas of India. It is the failure of the nation’s moral conscience and raises questions on India’s integral principles.”[1]
Supreme Court contends that Rape is a crime, which destroys the basic balance and equilibrium of the social atmosphere, lowers the dignity of the victim, shatters her reputation and traumatizes her conscience deeply[2].
To curb this menace, deter the society from committing such gruesome acts and to establish a save and sound society the legislation and the Supreme Court has imposed laws and directions over a period of time.
The punishment imposed for various offenses of rape prior to 1983 was minimum imprisonment of seven years, which can be further maximized to ten years or life imprisonment. In the year 1979, the Supreme Court in the case of Tuka Ram & Anr. v. State of Maharashtra[3] expressed its dissatisfaction with the quantum of punishment awarded for such monstrous crimes and presented its opinion to increase the punishment. The same argument was later echoed by the law commission in its 84th report, which recommended changes in rape laws in India[4]. The result of this report and judicial opinions was the Criminal Law (Amendment) Act 1983. The bill, which was promulgated, introduced substantial changes in the laws, procedure, punishment and etc. related to rape. For example, the bill introduced the concept of custodial rape, gang rape and rape of child below the age of 12 years[5] in IPC, in CrPC, the bill laid down that the rape trials must be recorded in camera[6] and the identity of the victim should not be revealed[7].
With the rising sexual crimes against minors, in the year 2012, again new legislation – Protection of Child against Sexual Offences Act (POCSO Act) was passed. It made the sexual assault with minors a gender-neutral crime and therefore it is not specifically restricted to just females. Further, it raised the age bar of consent for sexual intercourse with women from 16 to 18.
In 2012, by the recommendation given by J.S. Verma J. committee, and to respond to the widespread agitation against the rising rape cases all over India, again the Central Government brought the Criminal Law (Amendment) Bill, 2013. This amendment made punishment more stringent and imposed the death penalty for repeat offenders.
Criminal Ordinance Bill, 2018
Barbarous incidents in Kathua and Unnao gave rise to much hue and cry among the citizens of the country. The degree of monstrosity in the rape cases of Kathua and Unnao was so severe that it was impossible for a person not to be moved to tears after being aware of it. It would not be a hyper-statement when it is said, ‘even cows are protected in India, and girls are not’. The protests erupted in the country following the incident. The protests against the Kathua and Unnao incidents were so strong that the chairs in the houses of the parliament stated trembling due to the voices on the streets. There was a need to bring legislation to punish the perpetrators and to calm down the strong gust of outrage among the people.
In order to satisfy the demands of time, the criminal law (amendment) ordinance, 2018 was introduced in the country. The bill brought the various amendment to Indian Penal Code (IPC), Protection of Children from Sexual Offences Act, 2012 (POCSO), Criminal Procedure Code (CrPC) and the Indian Evidence Act (IEA) in regard to the rape cases happening against women. The significant changes brought by the bill are as follows:
Compulsory punishment for rape under section 376(1) of IPC has been increased from seven to ten years.
Insertion of section 376AB to section 376A IPC now distinguishes the rape cases of women below the age of twelve and makes rigorous punishment for a term not less than twenty years mandatory which can be further increased up to the death sentence.
Introduction of subsection 3 to section 376 of IPC now distinguishes cases of rape of a woman under the age of sixteen years and dictates a mandatory punishment of twenty years.
Infusion of section 376DA in Section 376D of IPC provides compulsory life imprisonment which in this context imprisonment for complete natural life of the person, combined with the fine in the cases of the gang rape of a female below the age of sixteen.
Introduction of section 376DB which provides minimum punishment to be life imprisonment, which can be, increased up to death sentence combined with the fine in the cases of the gang rape of a female below the age of 12.
Section 173(1A) of CrPC which prescribes the time limit to investigate the cases regarding raps to be three months has been reduced to two months and appeals coming from the lower court are to be disposed-off within six months.
With the change in section 438 of CrPC benefit of anticipatory bail provided under the section cannot be provided to the person accused of committing rape or gang rape of girl below the age of sixteen.
In Section 439 of CrPC sub-section, 1 is added which states that it is obligatory to “give notice of application for bail to the public prosecutor within fifteen days from the receipt of the notice of such application”
Under section 376(2)(a) changes have been brought because of which Police officer committing rape can be punished with rigorous imprisonment of minimum ten years.
Section 42 of the POCSO act is amended to include the provisions of IPC changed by the same bill.
Leap Without Looking
As Leonard Cohen rightly said that there is the crack in everything and that is how light goes in. the paper below attempt to discuss the cracks of the legislations in order to shed some light about the discrepancies on what has been laid down and what will be the effect of it.
As stated above, the main reason why the bill was passed was to cool down the strong protest after the rape incidents in both the aforementioned places. A petition was by a Delhi based prominent NGO working for women rights – Apne Aap Women Worldwide in the Delhi high court stating that the bill, which was introduced, was in haste and proper consideration has not been done. It termed the ordinance as just a knee jerk reaction for the incidents of Kathua and Unnao. The vies in the petition also states that the bill was written without any scientific study and empirical research and hence in pursuant to this the core problematic areas have not been identified and so the ordinance lacks from its foundation to serve the purpose for what it is promulgated. The petition also stakes its major claim on justice Verma committee whose dimension of capital punishment has been discussed below.
Shadow On fair Trial Due to Stigmatization
In one of the recent case in Madhya Pradesh, a never-before-in-history thing happened. The events, which took place, are as follows: a person named Rajkumar was accused of raping a minor female and was brought before the court of law. The judgment was so quick, that the death penalty by the sessions court was awarded to Rajkumar in just five days. This episode got nation-wide acclamation. People praised the speed of delivering judgment in the case. Beneath this praises, there is deep underlying concern regarding speedy trial in the rape cases.
The person has the right to have a fair and free trial under section 21 of the Indian constitution. In the case of Commissioner of Delhi vs registrar Delhi High Court[8], It has been said that assurance of a fair trial is the first imperative of the dispensation of justice.
It has been certainly noted that the crime of raping the minor is very heinous, but that should not hamper the rights of the accused. In the case of Vakil Prasad Singh v. State of Bihar[9], it has been said, that it is well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. But the idea of the speedy trial should not be understood as giving punishment to the offender as quickly as possible but instead, equal focus must also be exerted towards fair trial.
When a person accused of rape is caught, there are three levels through which he has to go. 1) Society 2) Police 3) Court. The police officers and the judges are the product of the society, so it becomes hard for a police officer or judge to set aside their personal and societal prejudices surrounding the offender. The presence of this stigma may come in the way of judge or police to treat the case with professional detachment. In the case of Madhya Pradesh, it was alleged that in the trail where Rajkumar was given capital punishment he was not subjected to fair trial, the evidence was haphazardly collected and the witness did not properly examine. In the case of Baldev Singh vs State of Punjab[10], it was held that “Conducting a fair trial for those who are accused of a criminal offense is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of the fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by the conduct of which prosecution ought not to take advantage particularly when that conduct had caused. The prejudice hinders the judge to be biased during a case. This can be seen in a frightening paragraph in Mahesh vs state of MP[11], “To give the lesser punishment for the accused would be to render the justice system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon”.
Supreme court many times has held that no matter what the offense may be, how gruesome and heinous it may be a fair trial is the sole of criminal jurisprudence and an important component of the democratic polity of India[12]. Opportunity for fairest chance to prove one’s innocence is the objective of any trial and therefore the court must see that so happens[13]. With the appearing cases of accused not getting a chance to be fairly represented, excessively speedy trials and irrational court decisions[14] are affecting the natural justice of accused to have a fair trial.
With equal emphasis, we should not forget the role of media in building a climate of hatred and prejudice when the offense is of such delicacy. If the right to fair and free trial is violated it is the gross violation of human rights, in national as well as in international level. Another concern needs to be highlighted is in many courts the bar association of that respected states passes a notice saying no lawyer should take up the case of the person who has been accused of rape. Societal prejudice has become so deep that it is virtually difficult for persons to get justice if they are accused of rape. Supreme Court through the case of Abdul Rehman Antulay vs. RS Naik[15] held that even when speedy trial is an implicit part of Article 21, there cannot be any stipulated time period over a court to compete a case, and it solely depends upon the case and its nature which decides the reasonable time required to complete a case. Through the amendment, a lesser period of just 2 months is set for the cases for investigation and for completion of the trial. What this amendment misses to mention are the cases in which the time required may be more because of any condition such as prevailing local conditions, the workload of the court concerned.[16] Therefore, it is neither practical nor advisable to fix any period for the trial of offenses.[17]
Does Capital punishment Act As Deterrent
The next concern is whether the death penalty can act as a deterrence to the said crime or not? The amendment in IPC giving death penalty has genesis from the legal system of Afghanistan and Iraq, but due to the wide gap between Indian and these legal systems, here is a little skepticism about whether it will be successful or not? Deterrence theory is majorly used to instill fear in the minds of people so that they do not commit the said offense. Fear of death is one of the oldest and most effective factors in creating deterrence. People feel that if we commit the offense then the state will take away the life, this creates a fear in the minds of people who in time turn into deterrence. Many of those favoring retentions of capital punishment believe that death imposed for any reason, even as a legal function of the state, is to be regretted, but find justification in its unique value as a deterrent[18].
Not only the 84th Law Commission of India Report but also the Justice Verma committee report strongly opposed the sentencing of giving capital punishment. The report after taking into account the views expressed on the subject, by an overwhelming majority of scholars, leaders of women’s’organizations, and other stakeholders, submitted that seeking of the death penalty would be a regressive step in the field of sentencing and reformation. The two reports further went on to say that after having bestowed considerable debate on the subject and having provided for enhanced sentences in respect of the noted aggravated forms of sexual assault, in the larger interests of society, and having regard to the current thinking in favour of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness, we are against recommending the death penalty.[19]
Further, the report read, Undoubtedly, rape deserves serious punishment. It is a highly condemnable crime in the moral sense and demonstrates a total contempt for the personal integrity and autonomy of the victim. Short of homicide, it is the “ultimate violation of self.” It is also a violent crime because it normally involves force or the threat of force or intimidation to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the victim and can also inflict mental and psychological damage. We have no doubt that it undermines the communicating sense of security and there is the public injury. However, we believe that such offenses need to be graded. There are instances where the victim/survivor is still in a position from which she can, with some support from society, overcome the trauma and lead a normal life. In other words, we do not say that such a situation is less morally depraved, but the degree of injury to the person may be much less and does not warrant punishment with death.[20] The Verma committee thus ended the report giving caution against the death penalty
If we talk about the practicality of death penalty the offenders of Nirbhaya case were given a death penalty, the idea was if the death penalty is given there will be fewer cases, but we see that the number is still rising and there has been no deterrence created. This can be seen through the data collected by the National Crime Records Bureau, which reported a sharp rise in the rape of children from 8541 in 2012 to 19765 in 2016.
Also, 84th law commission has condemned this concept of this mandatory punishment, which is about criminal law amendment bill 1983 and is also criticized by J.S. Verma Committee. There was legislation, which was passed in Tennessee, for testing the effectiveness of the death penalty as deterrence theory. But the time when this legislation was put in practice there was no decrease in the number of the crimes. It was said, “This observer evidently overlooked the fact that the murder rate continued to rise after the legislature’s action and, ironically, was on the increase at the time the statement was made. Another fact that the attorney general might have been hard-pressed to explain was that the statute which abolished capital punishment for murder retained it for rape, yet the proportionate number of rapes continued to rise in face of the threat of death[21]
If we look at capital punishment in history, the capital might have been able to create deterrence. Galileo, when he talked against the rules of the church he was given the death penalty. This proved to be a deterrence for some years because when any alleged perpetrator was hanged it was in such a way that the public could see it. So, the public would know that if they tried to go against the law, there will be brutal consequences. Today, the procedure of the death penalty is carried out in private so the citizens would not be able to know what will be the consequences. The sight of a person being hanged in front of the public, his family members creates fear, which acts as a deterrence. This is the key difference between the death penalty in ancient times and in contemporary times. Some advocates of abolition admit that the deterrent effect might be lessened because executions are being carried out behind prison walls in order not to offend the public; some even suggest that the horrors of executions should be widely publicized to achieve the maximum deterrent effect[22]
Moreover, the study done by NLU Delhi on capital punishment states that there are 84 people who are being sentenced to death in a sexual offense, out of 84 people highest number belongs to Madhya Pradesh. Ironically, Madhya Pradesh has the maximum number of rape offenses in India. This clearly shows that there is no impact of capital punishment in India.
Also in the case of the ordinance, it has been laid down that, capital punishment should be given only to those who rape a girl below 12 years. In practicality, this, might not be possible because the victim being minor don’t know either that the act committed is an offense or is afraid to speak. Another concern which was highlighted by research article, which says, the new law fails to factor in the fact that a majority of sexual assault cases go unreported due to the child’s silence or lack of support from family members. As per National Crime Records Bureau statistics on the rape of women and children, the victim knows 94% of the rapists, and almost half the perpetrators include the father, a brother, a grandfather, a close relative, and neighbors. Critics feel the death penalty will, therefore, put undue pressure on the girl child to suppress the matter or in some cases turn hostile at a later stage of the trial[23].
It has been argued that the punishment given by the state should be accorded to the crime committed. In the case of State of Karnataka v. Krishnappa,[24] it was said that the appropriateness of the punishment should be taken into consideration. There have been cases by which the court held that capital punishment is to be given only when the crime is if such gruesome nature. In Bheru Singh vs State of Rajasthan[25], Bheru murdered his wife and children and in this case, Bheru Singh was awarded capital punishment, the paragraph below describes the heinous nature of crime, The barbaric, gruesome and heinous type of crime which the appellant committed is a revolt against the society and an affront to human dignity. There are no extenuating or mitigating circumstances whatsoever in this case nor have any been pointed out and in our opinion, it is a fit case which calls for no punishment other than the capital punishment and we accordingly confirm the sentence of death imposed upon the appellant. This feature was made strong in the case of Suresh Chandra Bahri v. State of Bihar[26]. In American jurisprudence also the concept of sentencing death penalty has been criticized, ‘ In this regard the American case of Ehrlich Anthony cooker vs. the state of Georgia[27] can be closely studied in which with the ratio of 7:2 the Supreme Court of USA revered the death sentence of accused and called it cruel and unusual punishment
In the new criminal ordinance bill when the offender knows that he is going to be sentenced to death, what will be the reason for him not to kill the raped girl? It has been noted that when the person rapes and kills the victim, he in most cases is only punished under sec 302. This is a concern because the punishment for murder is less than punishment for raping a minor. Hence, this discrepancy has been seen and not solved till date. It is not the severity but the consistency of the punishment that acts as deterrence.
Conclusion
Rapes against women and especially against minor children is considered not only a crime against that person but against the whole society[28]. Rape is an offense which not only mocks an individual but also mocks the liberty and respectability of a person. The ordinance is for sure the protection and upliftment of minors in the society, but there are areas in which the bill needs work. Simply increasing the severity of punishment is not a logical way to deduce that the rapes on minors will reduce. Similarly, the bill keeping more stress on procedural techniques to solve the problem has failed to overlook the social climate revolving around rapes. A new facet of religion has come under the ambit of crimes of rape after Kathua rape incident, which needs to be addressed as soon as possible.
The good thing about the ordinance is it came due to the demand of people, it shows that that the legislature is responsible enough to hear the lamentations of the people of the country. This underlines the true essence of democracy WE THE PEOPLE. The ultimate sovereignty rests in the hands of people of India, and that is why it makes us a great democracy. The conviction and not the policy which will lead us ahead.
[1] Kailash Satyarthi, India is facing a national child safety emergency Hindustan Times, 23/04/2018 available at here last seen on 20/09/2018.
[2] Jugendra Singh vs. State of Uttar Pradesh, (2012) 6 SCC 297.
[3] Tuka Ram & Anr. v. The state of Maharashtra, AIR 1979 SC 185.
[4] 84th Law Commission of India Report, Rape and Allied Offences: some questions on substantive laws, procedure and evidence 4 (1980) available at here last seen on 20/09/2018.
[5] S. 376(2), The Indian Penal Code, 1960.
[6] S. 327(2), the Code of Criminal Procedure, 1973.
[7] S. 327(3), The Code of Criminal Procedure,1973.
[8] Commissioner of Delhi v. registrar Delhi High Court, (1996) 6 SCC 323.
[9] Vakil Prasad Singh v. the State of Bihar, (2009) 3 SCC 355.
[10] Baldev Singh v. the State of Punjab, AIR 1999 SC 2378.
[11] Mahesh vs state of Madhya Pradesh, (1987) 3 SCC 80.
[12] Rattiram v. State of Madhya Pradesh, AIR 2012 SC 1485.
[13] P Sanjeev Rao vs. State of Andhra Pradesh, (2012) 7 SCC 56.
[14] Milind Ghatwai, Seven months, 12 death sentence in Madhya Pradesh: here is what a trial under its new rape law for minors entails., the IndianEXPRESS (18/09/2018), available at https://indianexpress.com/article/india/shivraj-singh-chouhan-mp-high-court-rape-case-pocso-5358379/ last seen on 20/09/2018.
[15] Abdul Rehman Antulay vs. RS Naik, (1992) 1 SCC 225.
[16] Idbi, 1731-32
[17] MP Jain’s the India Constitutional Law, 1114 ( 8th ed. 2018).
[18] Donald F. Paine, Capital Punishment, 29 Tennessee Law Review,534, 537 (1962).
[19] Committee on the amendment to Criminal Law, Lok Sabha, Report of the Committee on Amendments to Criminal Law, 2018.
[20] Ibid.
[21] Supra 18.
[22] Ibid, 540.
[23] Rakesh Chandra, The heinous crime of child rape: whether the death penalty is the answer? 4 International Journal of Legal Developments And Allied Issues, 425, 429 (2018).
[24] State of Karnataka v. Krishnappa, (2000) 4 SCC 75
[25] Bheru Singh vs the State of Rajasthan, (1994) 2 SCC 467.
[26] Suresh Chandra Bahri v. the State of Bihar,1995 SCC (Supp) 1 80.
[27] Ehrlich Anthony cooker vs. state of Georgia 433 US 584 (1997)
[28] State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386.
