Petition Filed In Delhi HC Challenging Ordinance On Death Penalty For Child Rape; Notice Issued [Read Petition]

The Delhi High Court, on Friday, issued notice on a Petition challenging the Criminal Laws (Amendment) Ordinance, 2018, which provides for death penalty for rapists of girls below 12 years of age, and other stringent penal provisions for rape.

The notice was issued by a Bench comprising Acting Chief Justice Gita Mittal and Justice C Hari Shankar on a Petition filed by NGO ApneAap Women Worldwide, which is an anti-sex trafficking organization working in brothels, red light districts and caste-ghettos. The matter has now been posted for hearing on 31 July.

The impugned Ordinance was promulgated on 21 April, amending the Indian Penal Code, Code of Criminal Procedure, Indian Evidence Act and Protection of Children from Sexual Offences (POCSO) Act. The Petition now challenges the following changes brought about by it:

1. The increase of mandatory minimum punishment for rape under Section 376 IPC from seven to ten years.


2. The prescription of a minimum mandatory 20 years imprisonment for those convicted of raping girls under 16 years of age. This has been done by adding sub-section 3 to Section 376 IPC.


3. The prescription of punishment of twenty years rigorous imprisonment or death for those convicted of raping girls under 12 years of age. This has been done by adding Section 376AB after Section 376A IPC


4. Mandatory imprisonment for life and fine in case of gang-rape of girls under 16 years of age. This provision was added by inserting Section 376DA after Section 376D IPC.


5. Mandatory imprisonment for life and fine, or the death penalty in case of gang-rape of girl under 12 years of age. This provision was added by inserting Section 376DB.


6. Amendment to Section 173(1A) Cr.P.C, which reduces the time provided for investigating into the rape of a child from 3 months to 2 months. The amendment, it says, advertently or inadvertently makes the provision gender-specific, thereby excluding males from its purview.


7. It asserts that this amendment is contrary to the provisions of the POCSO Act, and submits, "There is no intelligible differentia for imposing a lighter sentence upon persons who commit rape upon a male child, especially when the last major study, in 2007, titled "Study on Child Abuse" performed by the Ministry of Women and Child Development found that 52.94% of the victims of child sexual abuse were boys."


8. Denial of anticipatory bail to a person accused of raping a girl below 16 years of age. This has been done by amending Section 438 Cr.P.C.


9. The addition to Section 439(1) Cr.P.C., making it obligatory to give notice of the application for bail to the Public Prosecutor within fifteen days from the date of receipt of such notice. The amendment, it says, is "unintelligible, vague, displays non-application of mind and may operate to place an unconstitutional fetter on the grant of bail in certain cases."


10. Making it mandatory for the informant to be present while hearing of the bail application of those accused of raping a woman below 16 years of age. This has been done by insertion of sub-section (1A) after Section 439(1) Cr.P.C.

The Petitioner asserts that the Ordinance was issued merely to address the outrage that followed the rape cases of minor girls in Kathua and Unnao, without adequately addressing the issues at hand. Calling it a "knee-jerk reaction", the Petitioner points out that not only does the Ordinance take away rights of the accused, it also bases the distinctions on age, ignoring other vulnerable classes.

It asserts, "As such, the Ordinance is not based on any scientific or empirical research and is a populist measure that does not address core issues of implementation, speedy action, protection and rehabilitation of victims, access to justice, judicial training, corruption and the reduction of vulnerability of children living under different circumstances. It instead introduces disproportionate punishment (thereby falling foul of Articles 14 and 21 of the Constitution) and in fact increases the vulnerability of victims."

The Petition further points out that the Ordinance wrongly places reliance on death sentence as a deterrent, despite it having been rejected by the Justice Verma Commission constituted in 2013 in the wake of the brutal gang-rape of a 23-year-old paramedical student in a moving bus in Delhi in December, 2016.

It then emphasizes on the fact that "it is the certainty of punishment and not the severity of punishment, which acts as a deterrent", and that the fixation of 12 years of age has been arbitrary, without any nexus to the object sought to be achieved. It therefore asserts that the Ordinance violates Articles 14 and 21 of the Constitution of India, as the "various absurdities which arise in the application of the law mandate a reconsideration of its validity".