Of all offences, it’s the crime of rape that fires public sentiment the most, eliciting an outrage that exceeds the seemingly worst felony of all – murder too. It has probably more to do with the offence and associated gory details staying, even being replayed ruthlessly, in memory with continual mention and recall that compound its severity. It’s this outrage that offsets any chance of the very objectivity needed to tackle the issue. The Kathua crime followed by the ordinance on ‘child’ rape is a case in point.

The fulfilment of retribution, a vital outcome of legal punishment, is at the core of the populist support for death as a sentence. The national outcry for death for rapists was first initiated in the recent past following the December 2012 gang rape in Delhi, followed by the justice Verma committee constituted in its aftermath to recommend legal reforms to curb sexual assault crimes. Incidentally, in its report, the committee said the introduction of death penalty for rape “may not have a deterrent effect” and recommended enhanced sentence of jail for the remainder of life.

And, that led to the Criminal Law (Amendment) Act in which the very definition of rape was expanded to include various acts in
addition to vaginal penetration and a new Section 376 (A) which states that if a person committing the offence of sexual assault, “inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, [that person] shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death.” Death was included as a punishment for rape for the first time in India’s penal history although only when the act caused the victim’s death or caused the victim to be in ‘a persistent vegetative state’.

The trigger for the latter provision was the Aruna Ramchandra Shanbaug case wherein the victim – a nurse in Mumbai – spent 42 years in a vegetative state because of sexual assault, leading to a national debate on euthanasia and a concurrent review of the very definition of rape in the law. The accused, in this case, had served two concurrent seven-year sentences and could not be tried for rape owing to the limited reach and interpretation of the law. At the time of Aruna’s death to pneumonia in 2015, the accused was married and living with his family in a village in Uttar Pradesh. Section 376 (A) aimed to plug that anomaly in India’s law on rape.

Also, in case of “gang rape”, persons involved regardless of their gender shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim. That ‘regardless of their gender’ insertion to the section was initiated to include women perpetrators involved in rape by dint of their support, connivance or abetment to the act of rape.

However, highly progressive suggestions recommended by the committee that included reduction of age of consent, a section on marital rape and amendments in the Armed Forces (Special Powers) Act so no sanction is needed to prosecute an armed force personnel accused of a crime against a woman were disregarded by the government while framing the Criminal Law (Amendment) Ordinance, 2013. This was a given considering the executive action though democratic in letter is often populist in spirit.

Cut to Kathua, five years later in 2018, when following the abduction, rape and murder of an eight-year-old girl near this town in Jammu and Kashmir in January, the opposition and the media made another national outcry for death – this time around for the rapists of the girl child – flaying the state and the legal machinery for failing to protect the girl child. On April 21, the union cabinet approved a criminal law amendment ordinance seeking to amend the IPC, the Evidence Act, CrPC and the POCSO Act.

The Criminal Law (Amendment) Ordinance provides for stringent punishment of a jail term of minimum 20 years or life imprisonment or death for rape of a girl under 12 years. Amendments to the Indian Penal Code, the Criminal Procedure Code, the Protection of Children from Sexual Offences (POCSO) Act and the Indian Evidence Act were made to underline the same. The president the very next day gave his assent to the ordinance which has now become law albeit temporary.

Accordingly, the minimum punishment for rape has been increased from seven years to 10 years; the maximum punishment remains the same – life imprisonment. A new clause (3) has been added to Section 376 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 has been inserted which prescribes 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 ordinance, once again a kneejerk reaction from the executive provided, a half-baked solution but risks being overwhelmed, this time, for being bad in law. It is in direct violation of Articles 14 and 16 of the constitution that guarantees equality before law. According to Article 14, the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It also prohibits discrimination on grounds of religion, race, caste, sex or place of birth. The ordinance, now with force of temporary law, discriminates between a male child and a female child. All the amendments pertain to the girl child only, thus are violative of the right to equality and can be questioned for their constitutionality.

So, the union women and child development ministry, less than a week after the ordinance was promulgated, is set to move the cabinet seeking approval for the same punishment for those guilty of sexually abusing young boys of the same age. While POCSO was gender neutral, the amended Section 376 mentions the word “woman” meaning that those guilty of raping boys below the age of 12 years old would not be subject to the death penalty provision. It has created an anomaly where the same crime committed against a girl and a boy is treated differently and contradicts the spirit of a gender-neutral POCSO.

A proposal to amend Sections 4, 5 and 6 of the POCSO Act, which will make rape committed against “any child” below 12 punishable with the death penalty is now been prepared and will be sent to all stakeholder ministries after which the cabinet will be approached. At present, Sections 4, 5 and 6 deal with aggravated penetrative sexual assault on children under 18 years; currently punishable with up to 10 years in jail, extendable to life imprisonment, under the POCSO Act.

The ordinance promulgated on April 22 will have to be approved by parliament within six weeks of reassembling, failing which it will cease to be functional. And by the time parliament reconvenes, and the ordinance is approved, the women and child development ministry will try to get the POCSO amendments approved and made part of the common law.

The sexual abuse of minors at Apna Ghar, a children’s home in Rohtak, Haryana is a case in point where it was revealed that several minor boys were sexually abused by the accused who ran the children’s home. The trauma suffered by minor boys could in no way be considered any lesser to that suffered by girls in their place. Treating them differently makes little legal sense. It may be also pertinent to recall the case of a 13-year-old Mumbai boy who consumed rat poison to commit suicide in 2017 and made a declaration of being ‘raped’ multiple times by four men who had threatened to kill his entire family, before succumbing to multiple organ failure. His 10-year-old friend had died earlier allegedly due to ‘dehydration’ and his parents refused a post-mortem and instead buried his body swiftly. The body was exhumed but investigators felt that extracting evidence of any sexual assault would be difficult as it had decomposed badly. The rape of minor boys is a reality that is mired in secrecy owing to the stigma attached to the offence. Even families of the victims are reluctant to initiate investigations.

Now, there is a unique legal situation here. Crimes against minor girls below 16 and below 12 fetch a minimum life imprisonment and maximum death for the latter while crimes against minor boys fetch a minimum of seven years and a maximum of life imprisonment. This anomaly will persist till the relevant sections in POCSO are amended and the quantum of punishment enhanced – which is, at the earliest, in the next parliamentary session. So, rapes against minor boys during the period between April 22, when the ordinance was promulgated, and sometime during the next parliamentary session – in July, August or September 2018, when the amendment to the POCSO Act takes place, will fetch a minimum of seven years while rapes against minor girls fetch a minimum of life imprisonment.

The differential treatment of the law is triggered by a swiftly drafted ordinance flawed with a lapse that will have to be corrected soon. Compounding the bias in the perception have been sections of an apathetic media and a trigger-happy opposition set on coercing the present government into conceding to errors and in public domain. In the absence of motivated support for the ‘boy’ child as is the case with the ‘girl’ child in India, it will rest upon the government to set the law right. Knowing this government, it should...and will!

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(The column appears in the May 31, 2018 issue)