Stringent laws to protect abuse of minors

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India is leading the way by bringing into force stringent laws to punish offenders in rape and abuse of minors, writes Kriti Kalra.

India is among the very few nations which has a separate and stringent law to effectively address the heinous crimes of sexual assault, sexual harassment and child pornography. The Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted to protect ‘children’ from the offences and provides for establishment of Special Courts for trial and related matters.

Of all the crimes that we know of and understand, rape is probably the most brutal and evokes heightened public sentiments. Rape survivors are traumatised for life, their families live in shame and survivors find it very difficult to assimilate in the society owing to the taboo associated with this crime. The situation is even worse if a child is raped because the child is not capable of understanding and handling the trauma and the effects linger for the rest of the child’s life. Prior to POCSO Act, any sexual abuse or assault with a child was covered under Section 377 of the Indian Penal Code that was ambiguous and not stringent.

Cases that shook the nation`s conscience

Child abuse and rape are not uncommon but it was the abduction, brutal gang rape and murder of an eight-year-old girl in Kathua, Jammu and Kashmir in 2018 that triggered an unprecedented public outrage, similar to the one that gripped India after the Nirbhaya gang rape case in New Delhi. The seven accused were charged under relevant sections of the penal code effective in Jammu and Kashmir. However, the outcry that followed the incident was devoid of the objectivity that is needed to tackle such issues.
The Kathua rape case and the following protests lead to an ordinance passed by the Indian government as a knee-jerk reaction to the incident whose goriness infused rage and anger in the nation. To fulfill retribution as an outcome of legal punishment in the Indian criminal justice system, death penalty was demanded for the accused.

A similar demand was made by the people when Nirbhaya gang rape in December 2012 led to a nation-wide protest and support for death penalty for such crimes. Justice Verma Committee formed made recommendations for legal reforms in sexual crimes. It must be noted, however, that the committee was not in favour of death penalty for rape stating it may not have a deterrent effect, another outcome of legal punishment in the Indian criminal justice system. The committee had recommended increased jail sentence instead for such convicts.

Following the committee’s recommendations, the Criminal Law (Amendment) Act, 2013 was introduced providing for amendment of Indian Penal Code (IPC), Indian Evidence Act (IEA), and Code of Criminal Procedure (CrPC) on laws related to sexual offences. Death penalty for rape was introduced, for the first time in India’s penal history, only when the act caused the victim’s death or caused the victim to be in ‘a persistent vegetative state’. Punishment for “gang rape” was made minimum twenty years to life imprisonment.

Stricter laws to deter potential criminals

Post the Kathua incident in January 2018, the nation-wide protests demanding death penalty for the rapists of the girl child led to the cabinet approving a Criminal Law (Amendment) Ordinance, 2018 in April 2018 to amend the POCSO Act, the Indian Penal Code, Indian Evidence Act and Criminal Procedure Code. The ordinance introduced stringent punishments — jail term of minimum 20 years or life imprisonment or death for rape of a ‘girl’ under 12 years. Simultaneous amendments were introduced in the IPC, IEA, CrPC and POCSO to reflect the same.

Additionally, the minimum punishment for rape was increased from seven years to 10 years; the maximum punishment remained the same – life imprisonment. A new clause (3) was added to Section 376 of the IPC prescribing the minimum punishment of 20 years to a person committing rape on a ‘woman’ under 16 years of age and a new Section 376AB was inserted prescribing the minimum punishment of 20 years rigorous imprisonment (RI) to a person committing rape on a woman less than 12 years of age. Such a person can be awarded capital sentence as well. Sections 376DA and 376DB provide minimum punishment of life imprisonment for persons involved in gang rape of woman aged less than 16 years and 12 years respectively.

The Criminal Law (Amendment) ordinance made the punishment more stringent but did not address the problem in toto. Additionally, the provisions in the ordinance were ‘unconstitutional’, violative of Articles 14 and 16 of the Indian Constitution that guarantee equality to all before law and could be challenged in court. The sexual abuse of minor girls and minor boys would now be treated differently in the eyes of the law. When a child is abused, the trauma for a boy child is no less than that of a girl child. So, differential legal treatment to the same offence was bad in law. As it is, incidents of rape of minor boys rarely come out in the open due to the stigma attached and are shrouded in secrecy, with families of the male victims even more reluctant than those of female child victims to report such incidents.

The executive that passed the ordinance and the Ministry for Women and Child Development realised the anomaly the ordinance manifested. So, amendments to POCSO Act 2012 were recommended to the union cabinet to tackle this unconstitutionality that were approved by the cabinet in July 2019. In its original form, POCSO was gender neutral, prescribing the same punishment for abuse of male and female child. The amendments to Section 376 of IPC mentioned the word “woman” meaning that those guilty of raping boys below the age of 12 years, would not be subject to the death penalty provision.

POCSO (Amendment) Bill, 2019

The Protection of Children from Sexual Offences (Amendment) Bill, 2019 was introduced in the Parliament and passed by both houses. It sought to amend sections 2, 4, 5, 6, 9, 14, 15, 34, 42 and 45 of the POCSO Act, 2012. The POCSO (Amendment) Act 2019 came into effect in August 2019. It introduced ‘death penalty’ for aggravated sexual assault on ‘children’, besides providing stringent punishments for other crimes against minors.

The amended provisions include:

• Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years (seven years in POCSO Act 2012) but which may extend to imprisonment for life, and shall also be liable to fine
• Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine (new section)
• Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years (ten years in POCSO Act 2012), but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death (death penalty included in POCSO Act 2019).

In a response to the debate on the bill, WCD Minister Smriti Irani stated “6.20 lakh sexual offenders were listed in the national database and they were being tracked by investigative agencies” underlining the need for stringent punishment for sexual offences against children. And, India is leading the way!


Kriti Kalra

Kriti Kalra is an activist and field researcher with www.thewomansurvivor.com – an initiative of DraftCraft International to protect and empower women by bringing on one platform the latest on rights and issues, strategic case studies, state initiatives and informed legal opinions.

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