Flawed justice

Print edition : May 25, 2018

The prime accused, Sanji Ram (right), and other accused in the Kathua rape and murder case being produced in the district court in Kathua, about 85 km from Jammu, on April 16. Photo: PTI

A rally organised by the Shiv Sena Dogra Front in support of the demand for a CBI probe into the Kathua rape case, in Jammu on May 2. Photo: PTI

Asaram being produced at a sessions court in Jodhpur in November 2014. Photo: PTI

The Criminal Law Amendment Ordinance, 2018, providing for the death penalty for rape of girls below 12, will have little meaning if the process of investigation and fair trial is sought to be subverted, as in the Kathua incident.

ON April 21, perhaps partly reacting to the public anger against the rising rate of crimes against women and children, and compelled by the need to show that it was sensitive to gender issues and public sentiment, the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government approved the Criminal Law Amendment Ordinance, 2018.

The ordinance, which has amended certain provisions contained in the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), the Indian Evidence Act and the Protection of Children from Sexual Offences (POCSO) Act relating to rape of minors, provides enhanced punishment for rape and the death penalty for rape or gang rape of a minor girl under 12 years of age. The President gave his assent to the ordinance a day after the Union Cabinet approved it notwithstanding concerns over the possible ramifications of the death penalty as a form of punishment in such cases.

The ordinance was approved against the backdrop of an intense public debate over the gang rape and murder of an eight-year-old girl belonging to the Bakarwal community at Kathua in Jammu and Kashmir and the sexual exploitation of a teenager at Unnao allegedly by a BJP Member of the Uttar Pradesh Assembly and the suspicious death in custody of her father. The victims of Kathua and Unnao, like Nirbhaya, the gang-rape victim of Delhi in 2012, became synonymous with heinous crimes against women.

As in the aftermath of the Nirbhaya incident when the previous United Progressive Alliance (UPA) government failed to address the grave dimensions of growing crimes against women, the NDA government, too, was content with laying emphasis on the stringency of the law and viewing the death penalty as a deterrent, rather than emphasising the certainty of punishment for rape and gang rape by proper investigation under the existing provisions of the IPC.

On April 24, Prime Minister Narendra Modi, who chose to remain silent over the support of elected legislators from Jammu to the Kathua rape accused, announced that the ordinance awarding the death penalty was for people who had a “devil’s mindset” and who misbehaved with women. He said that “the government in Delhi listened to people’s heart and took a decision based on that”.

The ordinance was in a way expected as the government wanted to be seen as being sensitive to the burgeoning crimes against women. With elections to a few State Assemblies slated this year and with Karnataka going to the polls on May 12, this was an opportunity in every sense. However, even as Modi dwelt on the “devil’s mindset”, the newly inducted Deputy Chief Minister of Jammu and Kashmir, Kavinder Gupta, told television channels that the Kathua incident was a “chhoti si baat”, a minor matter, and that it should not be used to provoke passions. Subsequently, he modified his statement, maintaining that all he said was that the case was sub judice. This was a week after the ordinance was issued.

In another controversial development, the Jammu and Kashmir government headed by Mehbooba Mufti inducted the BJP MLA from Kathua, Rajiv Jasrotia, to the State Cabinet. Jasrotia was known to have participated in the rally organised on April 4 by the Hindu Ekta Manch in support of the Kathua rape accused. Incidentally, two BJP MLAs had to resign from the State Cabinet earlier for participating in the same rally and issuing statements in support of the accused.

The ordinance has amended the IPC, 1860, to increase the minimum imprisonment for rape from seven to 10 years and introduced three new offences relating to the rape of minors. For the rape of minors under 12, it has recommended rigorous imprisonment of up to 20 years extendable to life imprisonment along with a fine to meet the medical expenses and rehabilitation cost of the victim or punishment with death. For gang rape of girls under 12, it has recommended life imprisonment, along with a fine, to meet the medical expenses and rehabilitation cost of the victim, or death. For rape of girls under 16, previously the punishment was imprisonment of 10 years extendable to life imprisonment along with a fine. This has been modified to minimum rigorous imprisonment of 20 years extendable to life along with a fine. For gang rape of girls under 16, the punishment is life imprisonment along with a fine.

The ordinance has amended the CrPC, 1973, in matters relating to time-bound investigation, appeal, anticipatory bail, compensation and prior sanction for prosecution. The ordinance reduces the time for completion of investigation into the rape of a child from three months to two months. Further, it extends this timeline to all offences of rape, including the gang rape and rape of minors under 12 and 16 years. It rules out anticipatory bail to persons accused of rape and gang rape of girls under 16 years of age and specifies that all appeals in rape cases should be disposed of within six months. The amendments to the compensation awarded under the CrPC have been extended to cover the rape and gang rape of minor girls under 12 and 16 years of age. The provision in the CrPC for prior sanction for prosecution of all public servants, except for certain offences, like rape, has been extended to cover rape and gang rape of minor girls below 12 and 16 years of age.

The provision in the Indian Evidence Act, 1872, according to which in determining whether the act was consensual or not the past sexual experience or character of the victim is disregarded has been extended to the rape and gang rape of minor girls in the ordinance.

The issue of crimes against women had never got so much attention as in recent years, more so in the aftermath of the 2012 gang rape. The revulsion to such crimes led to the simultaneous demand for the death penalty, with some State governments, mostly those led by the BJP, amending State laws to include the death penalty for the rape of girls under 12.

The Kathua gang-rape incident led to the demand for the death penalty. In fact, the NDA government and its Ministers have always been supportive of the efficacy of stringent punishment as opposed to the reformative aspects of punishment (notwithstanding age considerations) as evinced in the Juvenile Justice (Care and Protection of Children) Act, 2015, which came into effect following an outcry over the increase in heinous crimes by juveniles. This law stipulates that child offenders, 16 years and above, committing heinous offences such as rape and murder, should be tried as adults and the offences will attract a punishment of seven years or more. The Standing Committee on Human Resource Development, which examined the Bill, had stated that National Crime Records Bureau (NCRB) data on crimes by juveniles were misleading as they were based on first information reports registered with the police and not actual convictions. The committee was of the view that the approach towards juveniles should be reformative and rehabilitative. The Act was found to be in violation of the United Nations Convention on the Rights of the Child to which India is a signatory and where it clearly mandates that children under 18 cannot be treated as adults.

Law Commission’s plea

The 262nd report of the Law Commission headed by A.P. Shah recommended the abolition of the death penalty except in cases of terrorism and waging of war. It said: “The march of our own jurisprudence—from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to the rarest of rare cases—shows the direction in which we have to head.” The commission opined that the time had come for India to move towards the abolition of the death penalty.

It observed: “In retaining and practising the death penalty, India forms part of a small and ever-dwindling group of nations. That 140 countries are now abolitionist in law or in practice demonstrates that evolving standards of human dignity and decency do not support the death penalty.”

The commission recommended that it was essential that the state should establish an effective victim compensation scheme to rehabilitate victims of crime. At the same time, it added that courts could use the power granted to them under the CrPC to grant appropriate compensation to victims in suitable cases. The present ordinance addresses this aspect to some extent.

Alluding to the Death Penalty Research Project of the National Law University, Delhi, the commission said that of the 373 prisoners on death row in the country, more than 75 per cent belonged to the Backward Classes and religious minorities and 93.5 per cent of those sentenced to death for terror offences were either members of minority communities or Dalits. The report observed: “It appears that there are plenty of reasons, as well as empirical evidence, to fear the disparate and maybe even discriminatory impact of the death penalty.” It added that “the data available indicated that the majority of death row convicts in India were from economically vulnerable sections of society”.

The Law Commission was not alone in holding such an opinion. The Committee on Amendments to Criminal Law, also known as the Justice J.S. Verma Committee (set up in the aftermath of the Nirbhaya incident), in its report submitted in January 2013, declined to recommend the death penalty for rape of children under 12 years. It held that “rape followed by death or resulting in a persistent vegetative state” be separately dealt with.

Low conviction rate

Apart from the apparently discriminatory application of the death penalty, the other, more compelling reason that militates against the death penalty is the abysmally low rates of conviction in cases of crimes, including heinous crimes, against women and children. According to the latest Crime in India report of the NCRB, the all-India conviction rate for all crimes against women is a mere 18.6 per cent.

The pendency percentage (total cases pending trial at the end of the year divided by total cases for trial) is as high as 89.8 per cent. The conviction rate for rape is 25.5 per cent while that for cruelty by husband or his relatives—which constitutes the bulk of crimes against women—accounts for only 12.2 per cent with a 90.6 per cent pendency rate.

The low rate of conviction for cruelty by the husband or relatives indicates that the claims of misuse of the Prevention of Domestic Violence Act are hollow. In 95 per cent of the rape cases, the accused is known to the victim. This is one reason why reporting of rape remains a challenge. It is felt that the death penalty poses a greater risk to the life of the victim in such circumstances where the perpetrator is mostly a known person.

According to IndiaSpend, 90 per cent of child rape cases were pending trial in 2016 and not more than 28 per cent ended in conviction under Section 376 of the IPC (punishment for rape) and the POCSO Act. The number of reported instances of child rape in 2016 registered an increase of almost 6 per cent from 2014 while the conviction rate declined. Madhya Pradesh, Maharashtra and Uttar Pradesh reported the highest number of child rapes in the country.

The Kathua inquiry

Meanwhile, a committee appointed by the Bar Council of India (BCI) has supported the demand for a Central Bureau of Investigation (CBI) inquiry into the Kathua rape and murder case. It only echoed the demand of the Kathua and Jammu Bar Councils. Reacting to this, Yousuf Tarigami, Communist Party of India (Marxist) MLA of Jammu and Kashmir, told Frontline that the BCI had no authority to file such a report in the Supreme Court as the apex court had not directed it to file any such report seeking its opinion on the justifiability of a CBI investigation into the incident. The BCI, he said, had been asked to find out whether local lawyers had obstructed the filing of the charge sheet by the Crime Branch. “The demand for a CBI inquiry is being made by the accused and the Hindu Ekta Manch. The accused have no right to demand such an investigation. The attempt by the BCI is to give legitimacy to the accused and the Hindu Ekta Manch and to influence the investigation by the police and the prosecution and thereby deny a fair trial to the victim,” he said.

Conviction of Asaram

The conviction of Asumal Sirumalani Harpalani, also known as Asaram, and the life sentence awarded to him by a Jodhpur court for the rape of a minor girl in 2013 illustrates the delay in justice in cases involving heinous crimes against women. On April 25, Asaram was awarded 10 years’ rigorous imprisonment for the trafficking of a minor, one year for wrongful confinement, life imprisonment until death for rape, and six months’ imprisonment under the Juvenile Justice Act as the girl was a minor. The girl was assaulted in a Jodhpur-based ashram run by him. Two of Asaram’s aides were awarded 20 years’ imprisonment. The prosecution argued for maximum punishment under the law for the self-styled godman. During the course of the trial, a witness was shot dead (in 2015) and other witnesses and the family members of the victim, who was from Shahjahanpur in Uttar Pradesh, were routinely threatened.

In 2013, prominent BJP leaders defended Asaram, alleging that the charges were the result of a conspiracy by the Congress. According to media reports in 2013, BJP Member of Parliament Uma Bharti was one of those who tweeted in support of Asaram.

Asaram’s website, called and which is still active, lists out quotes from prominent personalities extolling him. This includes politicians, the majority of whom are from the BJP. With a substantial following in Rajasthan and Gujarat, Asaram was able to successfully “Hinduise” some sections in the tribal pockets in those States. His website includes categories such as “saints, politicians, eminent personalities, people, ashramites”, featuring a number of BJP leaders.

According to a news agency, Asaram had an accumulated wealth amounting to Rs.10,000 crore and some 400 ashrams spread across the country and abroad. His followers constituted an aggressive and formidable political constituency capable of swinging electoral votes and influencing the outcome of elections.

Like the accused in the Kathua and Unnao cases, Asaram, too, had his band of loyal followers. For months together, his followers camped in Central Delhi protesting their leader’s innocence. The pressure to let off the accused in the Kathua case continues in overt and covert forms.

The promulgation of an ordinance awarding the death penalty will have little meaning if the process of investigation and fair trial is sought to be subverted. The trivialising of rape and crimes against women by elected representatives only serves as an encouragement to the regressive and conservative views regarding women in Indian society.