via Reuters

Thoughts on India’s Ordinance on the Penalty for Rape

What are you talking about?
On 22 April 2018, India’s President, Ram Nath Kovind, gave assent to an Ordinance which — of many other things — permits courts to award the death penalty to persons found guilty of the rape of a girl under the age of 12. The minimum punishment for the rape of a girl under the age of 12 is a 20-year jail term, while the maximum punishment is the death penalty. For the gang rape of a girl under the age of 12 years, the convicted will have to face either the death penalty, or imprisonment for life. For the rape of a girl under the age of 16 years, the minimum punishment has been increased from 10 years to 20 years. For the gang rape of a girl under the age of 16 years, the convicted will have to face imprisonment for life. The minimum punishment in the case of the rape of a woman has been increased from 7 years to 10 years. The maximum punishment is life imprisonment.

The aforementioned provisions are only amendments to the Criminal Law; a number of other changes have been made to the time limits of completion of trials in rape cases, to the granting of bail, and to the time frame provided for investigation.

Note that an Ordinance is, in effect, a ‘temporary law’. An Ordinance is issued on the recommendation of the Cabinet when the Parliament is not in session (the next session must be within six months of the promulgation of the Ordinance). An Ordinance may cease to operate if the Parliament (upon assembly) does not approve of it within six weeks, or if both Houses of the Parliament disapprove of the Ordinance. The next (usual) session of the Indian Parliament is to be held between July and September (the Monsoon Session). [On a side note, thank you Civics class.]

The Context

The promulgation of this Ordinance stems from the furore in India over recent incidents involving: the alleged gang-rape of an eight-year-old girl from a minority community; the rape of a teenager, allegedly by a Member of Parliament; and an attack on an 11-year-old girl. The details of these cases are still slightly fuzzy, so I’d rather not jump to conclusions. Feel free to do your own reading on these.

Public outcry was further fuelled by the Prime Minister’s silence on the issue, which invited criticism that the Government is not doing enough to protect its citizens. This prompted ‘swift’ action from the Government. An emergency meeting of the Cabinet was held, and the aforementioned Ordinance was promulgated.

Basic Concerns with the Ordinance

The Ordinance provides for different (maximum and minimum) penalties for those convicted on the basis of the age of the victim. In the words of our honourable Prime Minister Narendra Modi, “Rape is rape” (This quote wasn’t used in this context, but it’s what I’d say if I had to explain this concern). I believe that there should be a standard definition on the minimum and maximum penalty for the rape of a person. Perhaps the minimum penalty for the rape of a minor could be different. However, I do not see the need for further categories of penalties for convicts whose victims are aged between 0–18 years of age. Rather, the punishment for a convict may be (as is always) decided on a case-by-case basis, in keeping with the minimum and maximum bounds of punishment as decided by the Legislature. In my opinion, the addition of such age-based filters into a law adds unnecessary distinction.

My second concern doesn’t necessarily address the Ordinance, but rather rape laws in India. The Protection of Children from Sexual Offences (POCSO) Act recognises sexual assault of all children regardless of gender. However, the Indian Penal Code (IPC) does not protect victims who are male. This glaring inconsistency is appalling. Now that we’re working towards a reconstruction of laws regarding rape in India, we might as well address this incongruity too. (Also, as per Reuters, there was no mention of a male victim in the Ordinance)

More Complex Concerns

As heavily reported by the media, the death penalty does not appear to deter rape. It has been found that family members are the primary convicts in over 90 percent of cases in the rape of children. Imposing such a harsh penalty may just increase under-reporting. Furthermore, in cases where children are victims, pressure from family and society may often deter the victim from reporting the crime.

Studies regarding the ‘deterrence effect’ of the death penalty do not provide evidence that the death penalty actually deters heinous crimes. It does not, however, prove that the death penalty does not have any deterrent effect either. So, I wouldn’t necessarily use this argument (as opposed to multiple groups in India). The increased penalty may just cause a person to think twice before committing a heinous crime.

However, I also feel that the introduction of the death penalty distracts us from the real issue — the deplorable rate of conviction in rape cases.

It would be wrong to entirely attribute rising sexual violence to the ‘moderateness’ of Indian law. The issue lies in our judicial and policing processes. The rate of conviction in reported cases of rape in India lies at around 25%. Without improvements in the police system, improvements in governance and policy is futile. The country needs a larger police force, along with the removal of the ‘victim-blaming’ mindset. There have been several instances of police not filing reports due to the ‘status’ of the accused individual(s). Criminals, today, seem to act under the notion of impunity. I understand that it is pretty easy to simply demand better police work, but I believe that such measures will actually reinstate public confidence in India’s criminal justice system. This is the change we need.

Concluding ‘Remarks’

As put by Amnesty International, “The government’s decision to introduce death penalty through an ordinance is a knee-jerk reaction”. Perhaps it wasn’t thought through too well. We need to improve our policing practices, and speed up the trials of rape cases. Apart from the under-reporting of crime, prolonged judicial proceedings also contribute to the lack of punishment for the guilty.

India does not really need a higher magnitude of punishment for perpetrators of rape. We really just need to serve justice to those who deserve it.

My eyes are set on the other provisions established by the Ordinance, viz. the setup of new Fast-Track Courts, an increase in manpower to handle rape cases, a time limit on investigation of rape cases, and a time limit on the trial of rape cases. Perhaps these will prove to be the real deterrents.

Note: I haven’t really addressed my concerns with the imposition of the death penalty in the first place. I do disapprove of the Government making such hasty decisions, especially regarding the use of capital punishment. Anyway, it is the maximum possible punishment, so I assume it will be reserved for use in the “rarest of the rarest” cases. I suppose our courts will be thoughtful enough in that regard.

Thank you for reading. I’d like to hear what you think of these actions. (Also, please do not hesitate to correct any factual inaccuracies in any information stated above.) (I should have cited. Ugh.)