From the Editor's Desk

I n the month of April, 2018 there were two incidents, which stirred a nationwide debate and political turmoil widely reported in media. Both the incidents involved sexual assault on two minor girls and police inaction. But in the one at Kathua of Jammu & Kashmir, the victim was brutally killed and in the other at Unnao of Uttar Pradesh, she was left to bear the trauma of her ordeal and later the death of her father, who was reported to have been struggling to get justice for his daughter but instead landed up in judicial custody that ended with his life.
Whereas, in the Kathua incident, the authorities concerned were reported to have moved after the noises increased, they appeared to be wanting in the Unnao incident and hence, given its jurisdiction, the NHRC, took suo motu cognizance of such media reports and issued notices to the government of Uttar Pradesh seeking reports and clarifications.
Politics apart, the issues raised serious concerns on violations of human rights and ignited the debate whether to have or not the provision of death sentence, as a deterrent, to the perpetrators of sexual assault, particularly when the victim was a minor. In the backdrop of several incidents of sexual assault on minors in the recent past, the voices for the death penalty were reported and heard more than those against it. Some of the State governments, reportedly, took stern measures in this regard as well. But this time, it was for the Centre to move. Thus, ostensibly to send a strong message about its concern over the issue, as if on a cue, it came out with the Criminal Law (Amendment) Ordinance, which was promulgated by the President of India on the 21st April, 2018.
Its highlights are: If the rape victim is below 12 years, the perpetrator will get rigorous imprisonment of at least 20 years extendable to life imprisonment, along with fine to meet medical expenses and rehabilitation cost of the victim, or, death. If the victim is below 16 years, the punishment has been enhanced to a minimum rigorous imprisonment of at least 20 years, extendable to life imprisonment, along with fine, to meet medical expenses and rehabilitation cost of the victim. Anticipatory bail cannot be granted to the accused. The time limit for investigation in all offences of rape of minor girls stands reduced from three to two months. Appeal against the sentence to be disposed of within six months. The Ordinance amends the POCSO, 2012 for all such offences and the punishment, which is higher between this amended Act and IPC, 1860, will apply.
But in no time, this move triggered another high pitched debate opposing the provision of death sentence terming it as regressive. Even public interest litigation was filed in the Delhi High Court challenging the Ordinance, which prompted it to question the government, if any scientific study was done before this exercise.
Several questions were raised from various other quarters as well after the Ordinance. A few among them were: How can there be different sets of punishment for a similar offence of sexual assault just on the basis of the difference in the age of the minor victims or even adults? How the charges of sexual assault made by a minor just below sixteen years can be presumed to be correct and not tutored to wrongly frame anybody leading to his incarceration without bail? How can the punishment for sexual assault be the same as is for murder? What would happen to the judicial norm of giving death sentence in the rarest of rare case in the face of a sweeping provision of death penalty? How the death penalty can presumed to be a deterrent when even after major changes in the IPC post December 2012 Nirbhaya case, there was no understandable reduction in such crimes?
Well, a counter view has also been floating around: that the increase in the reports of such crimes could be attributed to the confidence of the victims in the amended laws; that the incidents of murder may not have come down with the provision of death sentence in the country but what is the guarantee that their numbers would not be more without such a deterrent law?
Be that as it may, there cannot be any simple answers to complex questions on such vexed issues of law when it is weighed in for a balance. But it is for sure that laws, and more stringent of them, are needed to rein in a reckless society only; education of values and social behaviour can save it from becoming reckless to need such laws. And for this, as a long term measure, we, including all sections of society, need to take recourse to studying, understanding, introspecting and fixing the root causes, mindsets and circumstances that lead people to commit grievous crimes at a time when reports are coming that an alarmed Government is planning to further amend the POCSO Act in order to provide justice to male children also, who are increasingly becoming victims of sexual assault.
Hope this edition of the Newsletter provides an engaging reading.