Just as the poor response of the union government to theDelhi gangrape and the subsequent public protests received all-round censure,the move to rush in an anti-rape ordinance has spread disquiet too. Not onlyare the women’s organizations objecting to the ad hoc and selective approach,even criminal lawyers are questioning the wisdom of promulgating a poorlythought out ordinance that amends criminal laws “ both Indian Penal Code (IPC)and criminal procedure law (CrPC) “ without sufficient deliberations andapplication of mind.
The first major objection is regarding the act of issuingthe ordinance itself. It may be a legitimate tool of law making, but what isquestionable is the unusual rush when parliament is about to meet (in twoweeks). True, this is going to be the budget session and hence, budgetingactivities will dominate. But given the favourable response of the oppositionparties, there wouldn’t have been much trouble in taking up the matter fordeliberations and passage, especially when the justice Verma committee report,which formed the basis for the ordinance, has been criticized by many.
The second is the failure to take a comprehensive andholistic view of the menace. The ordinance mandates harsher punishment for rapeand other sexual offences, extending the sentence to life in some cases anddefines certain sexual offences like stalking, voyeurism and even marital rape(only when the spouses are living separately).
But more crucially, it leaves out many importantrecommendations like, keeping the criminals out of the legislative bodies, forexample, to prevent conflict in discharge of duty and undue interference. Italso asked for revisiting AFSPA and prosecuting security personnel for sexualoffences under ordinary law, crackdown on khap panchayats, develop communitypolicing, provide for stiffer punishment for police for not acting against theoffenders and gender sensitization at every level, starting with schoolcurriculum. All of these have been ignored.
Justice RS Sodhi, a retired judge of Delhi high court whopractised criminal law from 1972 to 1999, says he doesn’t remember the lasttime the CrPC was amended through an ordinance. “These are procedural in natureand there is no tearing hurry really to amend it through an ordinance. More so,when a parliament session is about to begin. It only tells you that thegovernment has little confidence in itself to have these things passed in arational manner,” he told Governance Now.
He also says that the move is nothing more than pandering toloud voices (which he says may not necessarily be the sound ones) without anyrationale about what to achieve or any data to support the necessity of theamendments. “There is a random increase in sentences for some offences. Whichdata says higher punishment will bring the crime rate down? Has the deathsentence for murder brought down the killings (to warrant a similar provisionfor rape)? Besides, how many death sentences have been executed (in India)?” hedemands to know, dismissing the justice Verma committee report as a mere“cut-and-paste job”.
SS Gandhi, another eminent criminal lawyer, too doesn’tremember the last time the criminal law was amended through an ordinance. “Lawsare not made on emotions. One horrible incident has taken place but that shouldn’tmake us emotional. There are possibilities of its misuse…So, we must be carefulabout all the aspects of the changes being made. More laws encourage moreinspector raj.”
Talking about laws like POTA, the anti-terror law brought infirst through an ordinance too, Gandhi says the ordinance had followed seriousdeliberations at several levels in and outside the government for many monthsand various views were considered. He sees no problem if similar was the casewith the anti-rape ordinance. “If not deliberated properly, I don’t think anordinance (to amend criminal law) is a good thing”, he summed up his views.
in association with Governance Now
