Sexual Offences: Liability and Punishment

By Sonakshi Verma, National Law University Jodhpur

Editor’s Note: Sex related offences are a universal phenomena, which take place in every society in different circumstances and social settings.  It may take the form of sexual violence, which sometimes cause severe and irreparable damage to the physical and mental health of the victims. Physical injury includes an increased risk of a range of sexual and reproductive health problems. Its impact on mental health can be equally serious as that of physical injury. Sexual offences, when they assume the form of sexual violence may lead to murder, suicide, acute depression, etc. of victims. It entirely disturbs the social well being of the victims because of stigmatisation and the consequential loss of status in their families and the neighbourhood. Theredore, it is vital that measures are introduced to end India’s tolerance of violence against women and girls. Policy and legal reform are needed to address the pervasive and damaging stereotypes surrounding rape. However, as the author has aptly put it, we must look beyond the natural human desire for retributive justice to seek comprehensive solutions, including sex-offender treatment programmes and restorative justice approaches that provide a true and lasting legacy of change.

Introduction

An ex-church janitor in Tulsa in Oklahoma, USA got 55 years imprisonment for sex crimes.[i] Here in India, rape cases either don’t get reported for various reasons or don’t reach a conclusive state, with culprits roaming free eyeing their next target.

But what are the punishments for sex and other crimes when established? Here is an overview:

Even as the Leader of the Opposition in the Lok Sabha, Sushma Swaraj, demanded death penalty for the rapists of the 23-year old paramedical student, Section 376 of the Indian Penal Code, 1860 says:

“Whoever, commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.”

Section 376 also deals with gang-rape under which the culprit/s shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.

If the victim says he (the accused) did not rape then Section 354 of the Indian Penal Code applies. Section 354 of the IPC considers the assault or criminal force to a woman with the intention to outrage her modesty. The punishment is up to two years imprisonment or a fine or both. Developing countries like India do not have a deterrent punishment for such heinous crimes. Additional Sessions judge Kamini Lau had suggested “chemical castration” as an alternative to a jail term for rapists. Chemical castration is the administration of medication designed to reduce libido and sexual activity, usually in the hope of preventing rapists, child molesters, and other sex offenders from repeating their crimes. In the US, UK and Germany, chemical castration is being used as an alternative. However, the Indian Penal Code provides only a jail term for sexual offenders.

Sexual Offences

Sex related offences are universal phenomena, which take place in every society. Sexual offences aptly take the form of sexual violence, which sometimes cause severe and irreparable damage to the physical and mental health of the victims. Physical injury includes an increased risk of a range of sexual and reproductive health problems. Its impact on mental health can be equally serious as that of physical injury. Sexual offences, when they assume the form of sexual violence may lead to murder, suicide, acute depression, etc. of victims. It entirely disturbs the social well being of the victims because of stigmatisation and the consequential loss of status in their families and the neighbourhood.[ii]

Forms And Magnitude

A wide variety of sex related offences take place in different circumstances and social settings. Some of the most prominent ones are sexual assault (without intercourse), forcible rape, sexual abuse of mentally or physically disabled people, sexual abuse of children including statutory rape (sexual intercourse with or without consent with minors) adultery, sodomy, fornication, forced marriage and co-habitation including the marriage of children, violent acts against the sexual integrity of women including female genital mutilation and obligatory inspection for virginity and forced prostitution and trafficking of people for the purpose of sexual exploitation. In India, sex crimes against women and girls are mainly manifested in the form of rape, molestation, sexual harassment, kidnapping and abduction for sexual purposes and trafficking of girls for sexual exploitation.

The official statistics showed a declining sex-ratio, health status, literacy rate, work participation rate and political participation among women. While on the other hand, the spread of social evils like dowry deaths, child marriage, domestic violence, rape, sexual harassment, exploitation of women workers are rampant in different parts of India.  Humiliation, rape, kidnapping, molestation, dowry death, torture, wife-beating etc. have grown up over the years.[iii]

1. Rape

Of all these crimes, rape is considered to be the most obnoxious and gravest form of human rights violation in the country. It is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamount to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.[iv] Rape cases are increasing in the country every year. It has shown a continuous rising trend during the last five years.

Because of the unprecedented increase in rape cases, and a number of sensational cases which involved state officials, such as officers from the armed forces, police and government management of remand homes and women institutions, the matter has become a serious concern not only for the law makers and criminal justice system but also for the civil society in general and women organizations in particular.

The case, which created a historical movement by women’s organizations covering various states, was Tukaram vs. State of Maharashtra[v] known as the Mathura case. This case still remains as a blot on the Indian judiciary as the Supreme Court of India acquitted the accused persons on the ground that the testimony of the victims was not properly founded. The court further held that the victim was not able to prove that she did not consent to the act of sexual intercourse. The judgment was followed by widespread agitations and demonstrations before the Supreme Court with the demand that the case be reheard. This compelled the government to move for the amendment of the law of rape. It asked the Law Commission of India to study not only the substantial law relating to rape but also the rules of evidence and procedure followed in criminal trials.

a. Custodial Rape

Consequently, the Law was drastically amended and a new law entitled Criminal Law Amendment Act, 1998 came into existence in which the very concept of ‘custodial rape’ as being more heinous than ordinary rapes was accepted. This Act brought about some important changes in the existing provisions on rape in the Indian Penal Code. It has amended Section 376 of the IPC and has enhanced the punishment of rape by providing that it shall not be less than seven years. It has also provided enhanced punishment of 10 years of imprisonment for police officers or staff of jails, remand homes or other places of custody established by Law. The Act has further inserted a new section in the Indian Evidence Act Section 114A which lays down that where sexual intercourse by the accused has been proved and the victim states before the court that she did not consent, the court will presume that there was absence of consent and the onus will be on the accused to prove that the women had consented to the act. The Act has amended the Code of Criminal Procedure and also provides for trial in camera. It has also inserted a new section in the IPC – Sec. 228 (a) – which makes disclosure of the identity of the victim in rape cases an offence punishable with imprisonment for two years.

Custodial rape is an aggravated form of rape. It is an assault by those who are supposed to be guardians of the women concerned that are specially entrusted for their welfare and safekeeping. It is caused when a person, by misusing his position forcibly rapes a woman.[vi] The Judiciary has taken a very a serious view regarding the commission of custodial rape. Whatever amendments, brought in rape laws to make the punishment more stringent, is mainly because of those judgments. In the State of Maharashtra vs. Chandra Prakash Keval Chand Jain[vii] case, the court remarked ‘decency and morality in public life can be protected and promoted’ if courts deal strictly with those who violate the societal norms. When crimes are committed by a person in authority, i.e. a police officer, superintendents of jails, or managers of remands homes or doctors the courts approach should not be the same as in the case of a private citizen. When a police officer commits a rape on a girl, there is no room for sympathy or pity. The punishment in such cases should be exemplary.

b. Gang Rape

Section 376 (2) (g) of the IPC constitutes the offence of Gang Rape. When one or more persons acting in furtherance of their common intention rape a woman it is treated as gang rape. It is the crudest and the most extreme form of male chauvinism and is considered an aggravated form of rape under the Indian Penal Code. For a man, it may be merely a calculated and cold-blooded instrument of oppression or revenge, whether on an individual woman, a caste or a class but for the woman it is a terrible experience. It is not required to prove actual commission of rape by each and every accused forming group.[viii] The minimum punishment of this offence is 10 years, but it can be extended to life imprisonment.

The essence of the liability in terms of section 376(2) is the existence of common intention.  In animating the accused to do the criminal act in furtherance of such intention, the principles of Section 34 IPC have clear application. In order to bring in the concept of common intention it is to be established that there was simultaneous consensus of the minds of the persons participating in the act to bring about a particular result. Common intention is not the same or similar intention. It presupposes a prior meeting and prearranged plan. In other words, there must be a prior meeting of minds.[ix] Evidence has to be led to show that the appellants had a common intention of committing rape on the victim. It has to be shown on evidence to show that they shared common intention.[x]

2. Trafficking Of Women And Girls For Commercial Sexual Purposes

Trafficking of women and children and their inclusion into the sex trade is a burgeoning form of organized crime. Human trafficking is the third largest organized crime after drugs and the arms trade across the globe. According to the definition of the United Nations – “trafficking is any activity leading to recruitment, transportation, harbouring or receipt of persons, by means of threat or use of force or a position of vulnerability”.[xi]

Under the Immoral Trafficking Prevention Act (ITPA) trafficking for commercial sexual exploitation is penalized. The punishment ranges from seven years’ to life imprisonment. The Indian Parliament recently enacted the Criminal Law (Amendment) Act, 2013 (CLA). Although primarily concerned with targeting rape and sexual assault, the Bill incorporates a range of other offences dealing with violence against women many of which the Indian Penal Code, 1860 (IPC) did not envisage. Two such offences relate to trafficking, an area of considerable policy and legal reform internationally.

Specifically, the new Section 370 defines the offence of trafficking thus replacing the prior Section 370, which dealt with the buying or disposing of any person as a slave. The new Section 370 criminalises anyone who recruits, transports, harbours, transfers or receives a person using certain means (including threats, force, coercion, fraud, deception, abduction, abuse of power, or inducement) for purposes of exploitation.[xii]

3. Sexual Harassment In Work Places

Sexual harassment in public and work places is widely prevalent in India. The number of sexual harassment cases reported to the police has substantially increased during the last few years. As defined in the Supreme Court guidelines as per Vishakha vs. the State of Rajasthan[xiii]sexual harassment includes any unwelcome sexually determined behaviour.

The Criminal Laws (Amendment) Act, or anti-rape law, approved by the President on April 3 says the offence is punishable with three years’ imprisonment and provides for a fine. But the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill passed by the Parliament in February, 2013 provides only for a penalty and departmental action.[xiv] Sexual Harasssment at workplace may lead to termination of service of the accused, withholding of promotions and increments, and payment of reasonable compensation to the complainant.[xv]

Factors Affecting Liability

Regarding the question as to what determines the liability of an offender, several factors need to be looked into. The specific and particular facts and circumstances of the case and the evidence derived, collectively help in coming to a conclusion as to the liability and the consequent punishment to be granted.

Courts Not Obligated To Consider Mitigating Factors

The main aim of punishment in judicial thought is the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.[xvi] It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.[xvii]

The Supreme Court in Shyam Narain v The State of NCT of Delhi[xviii] has laid down that if the prosecution has established the charge against the accused, then he shall be convicted and sentenced for the offence committed by him. In the instant case an eight year old girl was brutally raped by a married man. She incurred several injuries on her body and was initially afraid to disclose the truth behind it. The court while giving the judgment held that any mitigating circumstances such as that of the marital status of the accused or the fact that he had three children were of no consequence once the offence of rape was established against him.

“The learned Counsel for the Appellant would submit that the Appellant has four children and if the sentence is maintained, not only his life but also the life of his children would be ruined. In the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of “Spring of Life”. When she suffers, the collective society at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court. The mitigating factors put forth by the learned Counsel for the Appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, hence, we sustain the judgment of conviction and the order of sentence passed by the High Court.”

Reduction Of Sentence Depends On Special Circumstances

Punishment should always be proportionate to the gravity of offence. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case.[xix] The proviso to Section 376(1), Indian Penal Code, as it stood prior to its amendment in the year 2013 expressly states that the Court may impose a sentence of imprisonment for a term of less than seven years in an offence under Section 376(1), Indian Penal Code, “for adequate and special reasons to be mentioned in the judgment.” The power under the proviso is not to be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation The court while exercising the discretion in the exception clause has to record “exceptional reasons” for resorting to the proviso. Recording of such reasons is sine qua non for granting the extraordinary relief. What is adequate and special would depend upon several factors and no straitjacket formula can be laid down.

State of Rajasthan v N.K. The Accused[xx] the Supreme Court found that the accused had committed rape on the prosecutrix who was a married woman. The incident was of the year 1993 and the accused was taken into custody by the police on 03.11.1993 and he was not allowed bail and during trial and during hearing of the appeal. He remained in jail and it was only on 11.10.1995 when the High Court acquitted him of the charge that he was released from jail. This Court held that though the accused had remained in jail for a little less than two years and taking into consideration the period of remission for which he would have been entitled as well as the time which has elapsed from the date of commission of the offence, the accused should not be sent back to jail and reduced the sentence to the period already undergone by him.

Sukhwinder Singh v. State of Punjab[xxi] the Court found that the prosecutrix was a consenting party to the act of sexual intercourse and that she had willingly left her parents’ house to be with the Appellant but she was found to be “not more than sixteen years of age” and on that account, the High Court had upheld the conviction of the Appellant. This Court held that as the prosecutrix had since got married and she did not want the matter to be carried any further and wanted to lead a happy and healthy married life with her husband and had filed a compromise petition to that effect, there were adequate and special reasons to reduce the sentence to the period already undergone by the accused.

Medical Opinion Not A Must For Proving Rape

The investigating agencies and the people generally believe that for proving a case of rape there must be a medical opinion which certifies that the victim had been subjected to sexual intercourse and that there was penetration. However, the Supreme Court in a number of cases has opined that medical opinion can improve the case of the prosecution and can be used to corroborate the testimony of the victim-woman but the absence of any definite opinion or the absence of any medical evidence that sexual intercourse had taken place when other facts and circumstances indicate that an incident of rape had taken place then conviction can be based on other facts and circumstances. The apex Court in State of Rajasthan v Biram Lal[xxii] observed as under:

“We therefore find it difficult to sustain the order of acquittal passed by the High Court in respect of the offence under section 376, IPC. It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecurrix. It the Court is satisfied that the evidence of the prosecutrix is free from blemish and is implicitly reliable then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the court may look for corroboration from independent source or from the circumstances of the case before recording an order of conviction.  In the instant case we find that the evidence of the prosecutrix is worthy of credit and implicitly reliable. The other evidence adduced by the prosecution, in fact, provides the necessary corroboration, even if that was considered necessary.”

In Om Prakash v State of Uttar Pradesh[xxiii] the Supreme Court held: “It is settled law that the victim of sexual assault is not treated as accomplice and as such her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case, the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning.”

Victim Being An Unchaste Woman Is No Defence For Accused

The Supreme Court has laid down that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes.[xxiv] So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard. At the most the officer called upon to evaluate her evidence would be required to administer caution unto himself before accepting her evidence.[xxv] The Bombay High Court in Milind Ambadas Mhaske v State[xxvi] has held that bad character of the prosecutrix does not enable the accused to escape from his culpability. The Orissa High Court has also observed that a woman may be of immoral character, but persons forcing her to sex against her will would be guilty of rape.[xxvii]

Punitive options

The punishments set out for convicted sex offenders in India have recently been reformed, largely in response to the ‘Nirbhaya’ case. Reacting to the widespread public protests, on 22 December 2012 the Government announced that it would set up a judicial commission (the Justice Verma Commission) with two key objectives: (i) to look into Nirbhaya’s case and (ii) to suggest measures for improving the safety of women. The Government also used this as an opportunity to indicate that the death penalty might be adopted.

Sentences for sexual assault are divided into categories based on the presence of aggravating factors. For example, for ‘standard’ sexual assaults, sentences range between a minimum of seven years and imprisonment for life. This increases to a minimum of ten years (s. 376 Indian Penal Code) when the offender was in a position of authority (e.g. as a police officer or public servant) or when the offence is committed against a pregnant woman, a person under eighteen, or someone suffering from a mental or physical disability or who cannot give consent. Sexual assaults committed by a group of people are punishable by not less than twenty years for each offender and the term can be extended to life. When the offender not only commits a sexual assault but also causes death or causes the victim to be in a persistent vegetative state, the sentence increases to twenty years to life without parole. The sentence can also include death (s. 376A Indian Penal Code). A repeat offender will automatically receive life without parole, which can also be extended to include death (s. 376E Indian Penal Code).

A.    The death penalty

Public calls for the death penalty are not unusual when heinous crimes are committed. Executions for rape were common place in early societies, not only because rape was seen to represent an affront against a woman’s chastity, but also because it was regarded as an act against a husband’s exclusive ‘ownership’ of his wife. On both counts, rape was considered worse than death for the woman concerned. In modern times, however, it is extremely rare for offenders to be put to death following a rape conviction. For instance, the death penalty has not been applied in a rape case in America since 1964. While some in India have called for the death penalty in rape cases, it is unlikely that there is national consensus. Many politicians have remained silent on the issue, with most Indian States supporting life imprisonment without parole.

death penalty: whether effective in india?

Moreover, there is no evidence to suggest that the death penalty actually acts as an effective deterrent to rape. In general terms, there is a low rate of conviction for rape cases around the world, irrespective of the use of the death penalty. Indeed, adopting the death penalty might well lower existing conviction rates as juries may be reticent to find suspects guilty when they know that execution will be the punishment. Moreover, where the death penalty is already an option, judges may be unwilling to hand down this sentence except in the rarest of cases. Also of concern is the fact that in those countries that have the death penalty, men from minority communities make up a disproportionate number of death-row inmates. In the context of India, a review of crimes that are punishable by death reveals the discriminatory way in which the relevant laws are selectively and arbitrarily applied to disadvantaged communities, religious and ethnic minorities, and Dalits: perpetrators who come from a disadvantaged background make up the vast majority of those against whom the death penalty is imposed.

awarding death penalty: the rarest of the rare cases

Death sentence has always been a question of controversy. While on one hand it becomes a matter of human rights with respect to the accused; on the other hand it is one of weighing the gravity of the crime and its impact on the society. However, in the wake of the recent gang rape that took place in the city of Delhi, society has voiced strong opinion to award death sentence to the perpetrators. In the said case the death of the rape victim has led to imposition of section 302, IPC that prescribes the punishment for murder.

In Rajendra Pralhadrao Wasnik vs. The State of Maharashtra[xxviii], a three year old victim was lured, raped and killed in a bid to destroy the evidence. The Supreme Court upheld the decision of the Trial Court and the High Court and awarded the death penalty for murder and imprisonment for life for the offence of rape. On the other hand, the young age of the accused can be a factor responsible in the reduction of a death penalty to that of life imprisonment of 21 years.[xxix] Another incidence where a death sentence was commuted to that of life imprisonment by the Supreme Court was in the case of Neel Kumar @ Anil v The State of Haryana[xxx] where a girl was raped by her father and was awarded the death penalty by the Hugh Court.

B.    Chemical castration

Another form of punishment that has gained popularity in India as a possible ‘solution’ to the prevalence of rape is chemical castration.

chemical castration as punishment: whether possible?

It is unclear whether India’s criminal justice system possesses the resources and institutional capacities required to effectively administer the complex and long-term individualised medical treatment involved in chemical castration. The country’s public health system is already struggling, especially with regard to dealing with mental health challenges, while the health infrastructure of the prison and probation services is woefully inadequate. Foisting the complex and demanding procedures involved in chemical castration, on India’s current prison system is therefore a recipe for failure. If such a sentencing option was implemented, it might well do little more than provide a false sense of security while exposing victims, offenders and the wider community to further risks.

C.    Life imprisonment without parol

Another option that has now been mandated for serious cases of sexual assault is the sentence of life imprisonment without parole. Many states in India looking for a “stringent punishment” for convictions of rape favour life till death without leniency and parole . . . instead of the death penalty. In Section 376D of the Indian Penal Code, life without parole is defined as “imprisonment for the remainder of that person’s natural life”. The justification in England and Wales for usually allowing the possibility of parole is the belief that people can change and that education and rehabilitation can be effective. The Indian government appears to agree with this approach given that the Ordinance restricts life without parole to cases involving murder or other aggravating factors.

D.    Preventive detention

For less serious cases, the Ordinance proposes minimum sentencing tariffs, often with the possibility of life imprisonment. The legislation is not explicit but it is assumed that life imprisonment means life with the possibility of parole. Instead of sentencing being for a fixed duration that is proportionate to the seriousness of the crime, preventive detention of this kind often involves an indeterminate sentence with a minimum basic tariff; this allows for offenders to be held for longer than would otherwise be the case in order to ensure that the public is protected against further offending. Unlike when a person is sentenced to imprisonment without parole, release may be warranted if and when the offender has shown a reduction in his risk of reoffending and is thus deemed to be safe to live within the community again. However, the new Indian Ordinance does not state how such sentences will work, what offenders will do whilst in prison, or how they will be released. These are important issues that need careful consideration if these sentences are to be effective in terms of public protection.

Conclusion

It is vital that measures are introduced to end India’s tolerance of violence against women and girls. Policy and legal reform are needed to address the pervasive and damaging stereotypes surrounding rape. For instance, the Government needs to change the nature of the medical evidence collected in rape cases. The ‘two finger’ test, which is widely used to determine whether victims are “habituated to sexual intercourse”, should be explicitly prohibited. In 2011, the Director General of Health Services ordered the practice discontinued, but it continues to be used, contributing to India’s low conviction rate for rape cases through allowing the victim’s sexual history to be considered, often as a way of undermining the victim’s testimony. Sentencing principles also need to be reformed in this regard: factors that should not be considered in sentencing rape offenders (such as the victim’s sexual history) should be listed.

The Justice Verma Commission was set up following the murder of ‘Nirbhaya’ to create recommendations regarding how India might curb violence against women and strengthen rape laws. In its 630-page report of 23 January 2013, the Commission suggested amendments to the law to provide for quicker trials in rape cases and enhanced punishments for sexual offences. The Commission’s report makes concrete recommendations in respect of electoral reforms, police reforms, “education and perception” reforms, measures to deal with extra-judicial authorities (e.g. khap panchayats), child sexual abuse, trafficking in women, stalking, cyber-stalking, sexual harassment in the workplace, and medico-legal examinations of victims that violate their human rights. Justice Verma stressed that the Commission does not suggest introducing the death penalty for rapists because of the overwhelming opposition from women’s organisations. The Commission also held that chemical castration would be unconstitutional and inconsistent with a number of human rights treaties that India is party to in that it would expose citizens to potentially dangerous medical procedures, possibility without their consent.

Although only some of these recommendations have been adopted, many proved key to the development of the Criminal Law (Amendment) Ordinance 2013. However, women’s groups have raised concerns about the value of the Ordinance. Some have objected to the fact that the Ordinance does not make marital rape a criminal offence, as the Commission recommended; others have argued that waivers of sanctions in sexual offence cases are not acceptable. Moreover, despite the recommendations of the Commission, the Ordinance includes measures to introduce the death penalty in ‘extreme’ cases of sexual assault. The Ordinance also replaces the word ‘rape’ with the term ‘sexual assault’ and includes acid attacks and stalking under this umbrella concept. Furthermore, it includes no reference to the review of the Armed Forces Special Powers Act recommended by the Commission, which suggested that sexual crimes committed by members of the armed forces should be tried under ordinary criminal law.

The groundswell of public and media fury over recent high-profile rape cases may have precipitated a political moment, providing impetus for much needed reforms in the law, policing practices, and other aspects of India’s criminal justice system. However, in seeking to seize the political moment there is a distinct danger of acting in haste, ignoring the experience of the women’s movement and civil liberties activists about what reforms are most likely to prove effective in tackling sexual assault. The entry into force of the 2013 Ordinance demonstrates that India has made some progress and that the country is starting to take sexual assault more seriously; however, restructuring the law to enable more effective punishment of such crimes is not enough. It is therefore vital, as we have sought to show, that India looks beyond the natural human desire for retributive justice to seek comprehensive solutions, including sex-offender treatment programmes and restorative justice approaches that provide a true and lasting legacy of change.

Edited by Kanchi Kaushik

[i] Rape and Sexual Offences: Crime and Punishment in India, India Today Online (New Delhi, December 18, 2012)

[ii] Dr. Barindra N. Chattoraj, Sex Related Offences and Their Prevention and Control Measures: An Indian Perspective

[iii] Awadhesh Kumar Singh and Jayanta Choudhury, Violence against Women and Children Issues and Concerns (Serials Publications, 2012: New Delhi)

[iv] Deepak Gulati v State of Haryana, AIR 2013 SC 2071

[v] AIR 1979 SC 185

[vi] Ram Kumar v State of H.P., AIR 1995 SC 1965

[vii] AIR 1990 SC 658

[viii] Pradeep Kumar v Union Administration, Chandigarh, (2006) 10 SCC 608

[ix] Justice KT Thomas, MA Rashid, The Indian Penal Code, Ratanlal & Dhirajlal, 34th Ed. 883

[x] Hanuman Prasad v State of Rajasthan, 1 SCC 507

[xi]Ramandeep Kaur, Human Trafficking in India Must End, available at www.mapsofindia.com

[xii] A Battle Half-Won: India’s New Anti-Trafficking Law, Interdisciplinary Project on Human Trafficking, available at www.traffickinggroundtable.org

[xiii] AIR 1997 SC 3011

[xiv]Two Bills, Two Punishments for Sexual Harassment, available at www.hindustantimes.com

[xv]Law Against Sexual Harassment at Workplace Comes into Effect, available at www.timesofindia.indiatimes.com

[xvi] Halsbury’s Laws of England (4th Edition: Vol. II: para 482)

[xvii] Jameel v State of Uttar Pradesh (2010) 12 SCC 532

[xviii] AIR2013SC2209

[xix] Parminder alias Ladka Pola v State of Delhi, 2014(1)SCALE368

[xx] AIR 2000 SC 1812

[xxi] AIR 2005 SC 2960

[xxii] AIR 2005 SC 2327

[xxiii] AIR 1970 SC 679

[xxiv] Dalbir Bharti, Woman and the Law(S.B. Nangia, A P H Publishing Corporation:New Delhi)

[xxv] State of Maharashtra v Madhukar N. Mardikar, AIR 1991 SC 207

[xxvi] 1998 CriLJ 1357

[xxvii] Sanju Gupta v State, 1998 Cr LJ 1684(Ori)

[xxviii] (2012) 4 SCC 37

[xxix] Ramnaresh & Ors.v State of Chhattisgarh, (2012) 4 SCC 257

[xxx] (2010) 12 SCC 310

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