B L Saraf
Union Government has promulgated The Criminal Law ( Amendment), Ordinance 2018 that provides for death penalty to those convicted of raping a child below 12 years and life term for raping a girl below age of 16 years. Aim of the Ordinance is to ensure effective deterrence against rape and instil a sense of security among women , particularly young girls in the country. A number of measures have been put in place for speedy investigation , completion of trial and disposal of the appeals. The Government has also decided to strengthen investigation and prosecution, including setting up of fast track courts and special forensic labs in each State besides maintaining national data base of sexual offenders. The Ordinance has been promulgated in the wake of nationwide outrage over rape and murder of teenage girl in Kathua and other cases reported from different parts of the country.
President has approved the Ordinance, following which the Protection of Children from Sexual Offences ( POCSO ) Act, I PC and the Evidence Act stand amended.
We are reminded of the brutal sexual assault on a young girl in Delhi ,on 16th December 2012 and her consequent death – ( Nirbaya case ). Whole nation went up in outrage. Whereupon GoI appointed a committee headed by Justice J S Verma, former Chief Justice of India, with two eminent jurists as its members to “look into possible amendments of the criminal law to provide for quicker trial and enhanced punishment for the criminals committing sexual assault of extreme nature against women.” The committee was constituted in response to a nationwide outcry of the people against failure of Government to provide a safe and dignified environment for women of the country, who are exposed to sexual violece.
The committee, after examining the representations made by various civil society groups, individuals and persuing relevant laws in view of the international trends, made certain far reaching recommendations for redefining offences pertaining to the women. It proposed changes in other laws also which the committee found to have a bearing on the terms of mandate. Coming to the main terms of reference, the committee recommended redefining offence of ‘ rape ‘ within the provision on sexual assault, with a view to emphasise women’s right to bodily integrity and honour.
However , the committee did not accede to the demand of recommending death penalty to the rapist. While dealing with this aspect of the matter it has, possibly, taken into the consideration the international standards of human rights. Even today, persons who work for child care and protection hold same view . They say , with some merit, that death penalty in these cases will result in number of these cases going unreported because in most of the cases it is the family member or a close acquaintance who commits the offence. National Crime Record Bureau (Bureau) has produced latest data which reveals that 96 of the rapes are committed by family members. That is why conviction rate in cases of rape is just 24 per cent . It is only 20 percent under POCSO Act.
The Verma Committee did enthuse new life to the public discourse on the sexual abuses of women . Majority of the recommendations have been incorporated in the relevant laws. But a reality check is needed before embarking on new legislation ; has life of a poor girl child or an adult female been made any safer and better after the Verma Committee recommendations were put on the statute book ? Going through the reports emanating from every part of the country, it appears that females continue to be as vulnerable as they were before the Justice Verma report.
How ironic ? While a girl child continues to suffer sexual assault it is the male juvenile who is main perpetrator of the sexual offence. As per the Bureau, in the year 2011 64 percent of the crimes has been committed by juveniles in the age group of 16 – 18. Therefore to tighten the noose around the juveniles in this age group Parliament , in 2015 , introduced ” Judicial Waiver System ” in the J J Act which allows juveniles to be treated as adults , in certain conditions , in the adult criminal justice system and punishes them as such.
Kathua is in J &K . So onus is on the State Government to ensure fast tracking of the case . To her credit, C M Mehbooba Mufti has been asking for it. But she must be told that, leave alone Fast Track Courts, number of normal courts have become non-functional in the State. Some suffer for want of Presiding Officers others for lack of basic infrastructure and the staff. The institution of Fast Track Courts, across the country, has withered away after Finance Commissions stopped funding them. If we mean real business, then these fast track courts need be created in dozens, fast , after due budgeting. In the meanwhile State Government should provide staff and related infrastructure to the existing courts.
Then there is a need to have a law in the State which is analogous to the POCSO Act. State Government must bring in changes in the criminal laws as proposed in the Central Ordinance . Otherwise , intention to save a girl child will remain only a pious declaration.
All said , it is better to strengthen existing laws and ensure certainty of the conviction in a time bound schedule. Severity in punishment may be an option but it brings in a concomitant factor which often leads to free walking of the accused. It is the cardinal rule of criminal jurisprudence that more the severity in sentencing more heavy is the burden to bring home a charge to the accused. In such cases even a minor infarction of a mere technicality gives huge benefit to the accused. At the same tim, it is of paramount importance that safety of the victims and witness is ensured . Fast tracking of these cases will surely yield desired results.
It will be profitable to recall here how the Verma Committee concluded its report . These conclusions hold good even today . It said that the existing laws if faithfully and sincerely implemented by a credible laws enforcement agencies, are sufficient to maintain law and order and protect safety and dignity of the people, particularly women and punish offenders who commit any crime. It has underlined the necessity for improving law keeping in view the modern times. Therefore, it comes to effective and timely implementation of the laws rather than having more of them that will ensure law and order in the society.
The global experience gathered over a period of time shows that it is the fear of quick meeting out the punishment to the offender than its severity which acts as an deterrent.
We hope that new law will bring in desired results: that two months time limit for investigation, two months for completion of the trial and six months period for disposal of the appeals, provided in the Ordinance, won’t end up as Quixotic declarations .
(The author is former Principal District & Sessions Judge)
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