The Union Cabinet of the Government of India has cleared an ordinance making changes to India’s rape laws. This comes a few days after the Justice Verma Committee submitted its report (discussed here and here) recommending comprehensive changes to the criminal law in the light of the horrific gangrape in New Delhi in December. The ordinance, which will become law when promulgated by the President, would need to be passed by Parliament within six weeks of reassembling. Although the government’s demonstrable urgency is welcome, the ordinance makes some disappointing and some would say, disturbing, departures from the Justice Verma Committee Report.
First, the ordinance extends capital punishment in cases where rape results in the death of a victim or leaves the victim in a persistent vegetative state, inspite of well-documented arguments that the gravity of the death penalty might result in overcautious judging and lower conviction rates for rape. Coupled with the familiar argument that death penalty does not serve as a greater deterrent than life imprisonment, this provision of the ordinance is regressive. If the ordinance (and a law on similar lines) comes into being, it won’t be long before the capital punishment provision faces serious constitutional challenge, on grounds similar to those in Coker v Georgia and Kennedy v Louisiana before the US Supreme Court.
Second, the ordinance is silent on the issue of eliminating the ‘marital rape’ exception. The Verma Committee provided detailed reasons for which Sir Mathew Hale’s affirmation that a wife’s consent is irrevocable is inconsistent with the values of an egalitarian society. This marks the failure to recognize the Indian woman as an independent, rights-bearing citizen as opposed to the property of her husband.
Third, the ordinance bears no mention of the Armed Forces Special Powers Act (AFSPA), which provides sweeping powers to security personnel in conflict zones, including immunity from prosecution in regular courts. As the Verma Committee observed, the AFSPA has lead to ‘deep disenchantment’ and ‘alienation’ of people in these areas.
If the President promulgates the ordinance, one can only hope that political pressure within government and outside it results in a course correction to the proposed reform of rape laws.
Chintan Chandrachud is an MPhil Candidate in Law at the University of Oxford.
On the first point you are right for the wrong reason.
The death penalty is wrong, wrong, wrong, even for murder, and vile as rape is it is not murder.
On a pragmatic level would it not also make it “wiser” for the rapist who has injured his victim so badly that she might die to kill her at once and silence her?
I agree with you on the first point- the death penalty is inherently wrong.
Your second point is something that was raised in the stage of consultations. But it does not apply with normative force to this ordinance. Since the ordinance only permits the death penalty to be awarded for cases of aggravated rape (rape resulting in the death of the victim or putting the victim in a permanent vegetative state), there still remains an incentive for an offender to inflict minimal harm during the commission of rape so as not to fall within the ambit of aggravated rape.
Superbly written! Hope the Indian government is listening. Could you provide a link to the ordinance?
Here is the link to the ordinance: http://www.thehindu.com/multimedia/archive/01352/Criminal_Law__Amen_1352523a.pdf