Anti-Rape Ordinance Seriously Flawed

The hastily put together law — that too through an ordinance — is an admission by this government that it has succumbed to the pressure brought to bear on it by leftists, a combined opposition determined to put the government on the mat, and their co-opted journalists

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In a kneejerk response to the outrage over the recent instances of rape particularly the one in Kathua, the Union Cabinet approved the promulgation of an ordinance that advocates the death penalty for rapists of girls below the age of 12. As of today, the President has already promulgated this ordinance into a law.

This ordinance and the haste with which it was promulgated is a testimony to the power that the leftists and the left-dominated mainstream media have over the popular narrative. Not only were they able to drive the narrative but also organize protests, ensure their outrage on social media went viral and did not stop till the PM himself issued a statement on the matter. And now, this hastily put together ordinance!

The records of the National Crime Records Bureau (NCRB) (updated up to 2016) do show an alarming increase year-on-year in the incidence of crime against children. However, this need not necessarily mean a failure of law and order but rather could well be a reflection of greater reportage of incidents of crime and an improvement in the enforcement of the law, which is preventing crime from slipping through the law enforcement net. Be that as it may, if there was already an established pattern of increasing violence against children, why wasn’t the question addressed earlier or work done on putting together a water-tight law to prevent such incidences? Clearly, the hastily put together law — that too through an ordinance — is an admission by this government that it has succumbed to the pressure brought to bear on it by leftists, a combined opposition determined to put the government on the mat, and their co-opted journalists that controls a large section of the mainstream media.

Consider also that this was not the first case of child-rape in 2018 nor the only one. Around the time the Kathua rape case was chewing up news space and prime time across news channels, print, and online media, there were other child-rape cases that had either gone unreported or did not create as much of a buzz as this case did. It is this ability to control and canalize the narrative to suit their needs that sometimes makes us wonder if this is a government only in “office” but not actually in “power.”

Coming back to this ordinance, which proposes differential punishment (see the table below) on the basis of the age of the victim, the number of perpetrators involved and the seriousness of the crime. The Hindi news desk of Sirf News published an editorial that raised several valid questions on the rationale and deterrent potential of this law including:

  • the lack of a correlation between death penalty and reduction in crimes
  • the real danger of the perpetrator choosing to kill the victim when there is no difference in the punishment for rape versus
TABLE: PROVISIONS IN THE CRIMINAL LAW (AMENDMENT) ORDINANCE
Rape of a girl under 12 years 20 years in jail or life imprisonment or death
Gang-rape of a girl under 12 years Imprisonment for life or death
Rape of a girl under 16 years Minimum punishment enhanced from 10 to 20 years, extendable to life-imprisonment
Gang-rape of a girl under 16 years Imprisonment for life
Rape of a woman Minimum punishment enhanced from 7 to 10 years, extendable to life-imprisonment
1.   No anticipatory bail for accused if the victim is under 16 years

2.   Dedicated manpower for probe and investigation

3.   Probe and trial to be completed in 2 months

4.   Amendments to be made to the Indian Penal code (IPC), the Criminal Procedure Code (CrPC) and the Protection of Children from Sexual Offences (POCSO) act.

The ordinance in its present form suffers from serious flaws in addition to the ones listed above. An of some of them follows.

  1. Young boys are vulnerable too: A key gap in the ordinance is the fact that it considers only girls and women as “people at risk” Subramaniyan VKS, et al; reported in the Indian Journal of Psychiatry of how young boys sexually abused by other males grew into seriously troubled individuals. The report also noted that in many cases the severity of abuse was greater in boys than in girls. Further, this study showed that 53.22% of children face some form of abuse and, out of this, 52.94% of those abused were actually boys (more than half). This begs the questions why does this ordinance does not include young boys within its ambit.
  2. Death penalty may actually deter reporting in some cases: The NCRB data (referred to earlier in this article) shows that in 94.6% of all crimes against children under the POCSO Act, the perpetrators are relatives, acquaintances, or people known to the victims. Furthermore, the conviction rate under POCSO is a low 18%. Given the fact that in more than 9 out of 10 cases the perpetrators are known to the victims or the parents of the victims isn’t there a serious risk of under-reporting when the consequences of filing a complaint could lead to the death of a relative?
  3. Death penalty does not guarantee a drop in crime: A 2015 study by the Brennan Center for Justice noted that “…criminals do not consider the consequences of their actions…” and that “Much psychological and sociological research suggests that many criminal acts are crimes of passion or committed in a heated moment based only on immediate circumstances, and thus potential offenders may not consider or weigh longer-term possibilities of punishment and capture, including the possibility of capital punishment…”and that“…there is no evidence that executions had an effect on crime.” Clearly, the death penalty does not deter criminals. It is a spur of the moment act, a momentary madness perhaps where the perpetrator does not stop to think of the consequences. And when he does he usually does so after the act and then there is a serious chance that the perpetrator may decide the kill the victim in order to protect himself or cover his tracks.
  4. Differential punishments make a mockery of the law and the seriousness of rape: Who is to say that the rape of a 16-year-old is a lesser offence than that of a 12-year-old? What is the logic here? If the victim is 12 years-and-a-day old, somehow as per this law, the perpetrator must be awarded a lesser punishment! Also, how is it a lesser crime to rape a woman (a mother for example) than a child?
  5. Complete absence of a consultative approach: Laws of this nature need to go through due process and a consultative approach is always a good practice to ensure constitutionally established processes for making laws of this nature are followed. Also, laws can’t be made to cater to the demands of a section of the society or as a consequence of their outrage. In short, this ordinance needs more work and of more minds in order to make it more robust.

In conclusion, this ordinance is clearly still a work in progress and requires at a minimum:

  • To be sent to a consultative committee that can look at plugging some of the obvious loopholes.
  • It also needs to go through parliament and debated before being made into law.
  • It needs to be made available for the public to be able to provide feedback and suggestions
  • Incorporate within its ambit the need to fix the legal system around the handling of rape cases making it more sensitive, responsive, enabling, and accessible.

Now that the outrage has quieted down the government must use this window of opportunity to make a truly robust and effective law that leaves little scope for ambiguity.

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Management professional with over two decades of experience in the healthcare, pharmaceutical, educational, and development domains; writer, educator, leadership expert and management and brand consultant. He publishes his leadership podcasts at: https://open.spotify.com/show/1JtD8pODEnyprXD1NXYj0H

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