Lok Sabha has recently passed the Criminal Law Amendment Bill, 2018 with regard to rape of minors raising the minimum punishment from 7 years to 10 years extendable to imprisonment for life. 

Punishment for rape of a woman under 16 years of age shall be rigorous imprisonment for a term not less than twenty years but may extend to imprisonment for life and shall also be liable to pay a fine. Punishment for the offence of rape on a woman under 12 years of age shall be rigorous imprisonment for a term not less than 20 years but may extend to imprisonment for the remainder of that person’s natural life and with a fine or may even result in a death penalty. Punishment for gangrape on a woman under 16 years of age shall be imprisonment for life with a fine; punishment for gangrape on a woman under 12 years of age shall be imprisonment for life with a fine or may even amount to death. 

Investigation in relation to all rape cases shall be completed within a period of two months from the date on which the information is recorded by the officerin-charge of the police station; completion of inquiry or trial relating to rape, within a period of two months; dispose of an appeal against a conviction or acquittal in rape cases within a period of six months from the date of filing the appeal. 

The provisions of anticipatory bail shall not be applicable in cases of rape or gang rape of woman under 16 and 12 years of age; consequential amendments in the Indian Penal Code, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012 relating to the cases of rape, gang rape of the woman below the age of 16 years, 12 years, repeat offenders, to extend the applicability of compulsory registration of FIRs, fine imposed to be paid to victim, facilitate better recording of evidence and protect the dignity of rape survivor and treatment free of cost in hospitals.

While measures for speedy investigation, trial or disposal of cases, victim compensation, medical reliefs for the victim, right to be heard even during bail stage etc. are welcome; enhancement of punishment with more emphasis on death penalty is to be seen as a knee jerk reaction to appease the shrill voices craving for retribution and not for deterrence and reform which are the basic principles behind any punishment. 

It is interesting to note that recently the Supreme Court in ‘The state of Rajasthan versus Mohan Lal and another’, while enhancing the punishment awarded by the Rajasthan High Court in a case of assault, has said, “The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance.” 

In the same judgment the judges went on to say that, “Currently, India does not have structured sentencing guidelines that have been issued either by the legislature or the judiciary. However, the Courts have framed certain guidelines in the matter of imposition of sentence. A Judge has wide discretion in awarding the sentence within the statutory limits. Since in many offences only the maximum punishment is prescribed and for some offences the minimum punishment is prescribed, each Judge exercises his discretion accordingly. There cannot, therefore, be any uniformity. However, this Court has repeatedly held that the Courts will have to take into account certain principles while exercising their discretion in sentencing, such as proportionality, deterrence and rehabilitation. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness”. 

With a police force which is burdened with law and order and bandobust duties rather than crime investigation as its priority, ill-trained and ill-equipped to conduct scientific investigation, poor forensic aids by way of personnel and labs, mediocre public prosecutors who are also overburdened in a country where we have no qualms in ‘fixing’ accused for various reasons it is essential that the state does more homework and ensure that the basic principle of criminal jurisprudence where one is deemed innocent until proved guilty is not sidelined.

The Rayan Public School’s case of child death is a standing example of fixing accused by the police in its anxiety to show the public that they have nabbed the culprit. With the social media, print and television media being over active all the 24 hours of the day, it is easy to be swayed by gruesome descriptions of crime and point fingers at anyone as accused. It is in this context that the state and the judiciary have to be careful in dealing with such crime situations. It is the law and law alone which must be administered and not any private appeasement or vengeance. Legislators ought to be aware of the fact that providing for stringent punishment is not the panacea for any crime.

The need of the hour are effective measures for prevention of crime. Use the Nirbhaya funds to promote sex education in schools, colleges and even for school drop-outs, provide sensitive atmosphere, ensure that the areas where children are found are safe. Teach about what is good touch and bad touch etc. to the children. Provide for safe environments in and outside homes and public spaces.

As such the Law Commission of India and Justice Verma Commission have recommended against death penalty and yet to further amend the penal laws awarding death penalty is not in consonance with the averred tenets of our constitution and the commitment to ahimsa – the passion of the father of our nation.