Death Penalty for Rape: Criminal Law Ordinance, 2018 challenged in Delhi High Court

The amendments to Indian Penal Code and Code of Criminal Procedure introduced by way of Criminal Laws (Amendment) Ordinance, 2018 imposing death penalty for rape of a woman below 12 years of age, have been challenged in the Delhi High Court..The petition has been filed by NGO ApneAap Women Worldwide an anti-sex trafficking organisation working in brothels, Red light districts and caste-ghettos..The matter was heard yesterday by a Bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar which issued notice to the Central government..Advocates Kirti Singh, Tara Narula and Siddharth Mehta appeared in the matter..The Central government had introduced amendments to Indian Penal Code and Code of Criminal Procedure after the Kathua and Unnao rapes..The following amendments, inter alia, have been challenged in the petition:.The increase in mandatory punishment for rape under Section 376 IPC from seven to ten years.The addition of sub-section (3) to Section 376 IPC which distinguishes rape of a woman under the age of sixteen years and prescribes a minimum mandatory sentence of 20 years for the same.The insertion of Section 376AB after Section 376A IPC which distinguishes rape of a woman under the age of 12 years punishable with rigorous imprisonment for a term not less than 20 years or with death.The insertion of Section 376DA after Section 376D IPC which prescribes mandatory imprisonment for life and fine in the case of gang rape of a woman under the age of 16.The further insertion of Section 376 DB in IPC which prescribes mandatory imprisonment for life and fine or death sentence in the case of gang rape of a woman under the age of 12.Amendment to Section 173(1A) CrPC which earlier provided that investigation in relation to rape of a child may be completed within three months. After the amendment, the said period has been shortened to two months. The petitioner has also contended that the amendment has advertently or inadvertently made the provision gender-specific in that rape of minor males are excluded from the ambit of the section.Section 438 of CrPC has been amended to deny the benefit of anticipatory bail to a person accused of rape/gang rape of woman less than 16 years..It is the petitioner’s contention that the ordinance has been hastily drafted in the wake of public outrage following Kathua and Unnao rapes..Rather than addressing the issue at hand, the ordinance has extended death sentence to cases other than murder. It is the petitioner’s case that the amendments will adversely impact and prejudice victims of rape and are discriminatory towards boys who are victims of rape..Further, the petition has submitted that the ordinance carves out distinctions between classes of rape victims on the basis of age which indicates that it is knee-jerk reaction since there are other vulnerable categories of persons like pregnant women, elderly, differently-abled and homeless..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 etc, the petition states..The petitioner has also cited the fact that the Justice Verma Commission had, in 2013, considered and rejected death penalty as deterrent for rape..“the misplaced reliance on death sentence as deterrent is an example of oversimplified and draconian approach by this Ordinance, especially when the same had been considered and rejected by Justice Verma commission in 2013. It fails to recognise the fact that it is the certainty of punishment and not severity of punishment which acts as deterrent.” .The Court issued notice to the Centre yesterday and posted the matter for hearing on July 31..Read the petition below.