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A PIL has been filed before the Delhi High Court bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar, claiming that the proposed Criminal law Amendment 2018 (prescribing death sentence as punishment for gang rape on women under 12 years of age) is a regressive step and should be declared void.

The appeal says that the law would be in derogation of Articles 14 and 21 of the constitution. The PIL has also asked for a committee, headed by a member of the NHRC (preferably a female), to be constituted to come out with preventive measures to control the incidents of rapes (especially of minor girls), based on scientific principles and data and to come out with progressive steps in the field of sentencing and reforming, especially young persons convicted for the offence of rape.

The court on Friday (June 1) notified all parties concerned and also appointed Aparna Chandra as Amicus Curiae.

The next date of hearing has been set for July 31.

The NGO Social Action Forum For Manav Adhikar (SAFMA), in its petition, said: “The present petition under Article 226 of the Constitution of India is a Public Interest Litigation seeking order declaring section 5/6 of Criminal Law (Amendment) Ordinance, 2018, (prescribing death sentence as punishment for gang rape on women under 12 years of age) as void being in derogation of Articles 14 and 21 of the Constitution of India.

“In the aftermath of the Nirbhaya case due to public outrage, the Justice J S Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. This committee came out with a report in 2013, which stated that “death penalty would be a regressive step in the field of sentencing and reformation”.

Yet, vide the Criminal Law (Amendment) Act, 2013capital punishment was included for rape u/s 376 only in cases resulting in death or the victim being left in vegetative state and the definition of rape u/s 375 IPC was enlarged.

“In 2018 in response to the widespread outrage over the gang-rape and murder of a 8-year-old girl of the nomadic tribe in Jammu & Kashmir, instead of reliable research and punishment based on the principle of proportionality, once again succumbing to political expediency , the Criminal Law (Amendment) Ordinance, 2018, providing stringent punishment of a jail term of minimum 20 years or life imprisonment or death for rape of a girl under 12 years has been introduced with a ambition to have safer societies. Four states had earlier approved introduction of ‘death penalty’ for ‘child rape’ (rape of children aged 12 years or below) through state amendments to the criminal laws i.e. Arunachal Pradesh, Haryana, Rajasthan and Madhya Pradesh.

“The apparent contradiction in the law and ordinance is that on the one hand, definition of rape has been liberalised and on the other hand, most stringent punishment has been prescribed for the same. The Law Commission of India 262nd  Report on the Death Penalty in 2015, states in focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty, diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime”.

“The Commission also added that the data available also suggests that the majority of death row convicts in India are from economically vulnerable sections of society. Prior to issuing ordinance there been no consultation with Law Commission, National Human Rights Commission, Law Commission, National Commission for Protection of Child Rights.

“It is pertinent to mention here that Punishment aims to serve two purposes, deterrence & rehabilitation reformation.

“Reformation rehabilitation of the accused so that he can be a safe and productive member of society main streamed, and Deterrence, so that general public be deterred from committing such crimes. Capital punishment is barbaric and medieval being more about retribution, while disregarding the reformative aspect of the criminal justice system, as is being seen in India wherein cases of child rape continue unabated in spite of amendment in 2013, which is a cause for serious concern, often committed by family members and even by the so called ‘Godmen’/cult leaders.”

—India Legal Bureau

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