Opinion: Stricter Penal Provisions Are Political Shortcuts

Apart from the established statute, the willingness of the government to curb crimes against women through administrative machineries plays a major role towards a just society. If the government considers the Bilkis Bano case below the ‘rare of the rarest’ threshold, the intention is very clear that women and children safety is nothing more than a rhetoric.

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The horrific Delhi gang rape in 2012 shook the whole nation and widespread protest and criticism propelled the government to enact stricter laws pertaining to rape and sexual assaults through Criminal Law Amendment Act, 2013. 

The amendment brought significant changes in the Indian Penal Code (IPC), 1860. Among other things, the amendment liberalised the definition of rape (Section 375), increased the terms of punishment (Section 376), and clarified definitions and penal provisions for sexual harassment (Section 354). 

In light of these changes, it is important to scrutinise whether such enactments have worked as a deterrent to deduce crime against women and children or not. A report by the National Crime Records Bureau (NCRB) shows that there has been a substantial increase in crime against women and children over the years. In Delhi alone, there has been a rise of 25 per cent in rape cases between 2020 and 2021. This exemplifies that strict laws alone cannot be the raison d’etre in the reduction of crime.

In the same vein, newly-proposed Bharatiya Nyaya Sanhita (BNS) Bill, 2023 to replace the current IPC —amongst other two bills— espouses the further expansion of punitive traits concerning women and children's safety. In the present bill, the punishment for rape in normal circumstances is same as the IPC, which means rigorous imprisonment of not less than 10 years, but extendable imprisonment for life — imprisonment for the remainder of that person’s natural life. There is also a provision of fine along with imprisonment. 

The rape of a minor has been classified in two age groups: 1) rape of minor under 16 years of age with rigorous punishment of not less than 20 years extendable to life imprisonment, 2) rape of a minor under 12 years of age in which death sentence may be given.

The punishment for gang rape of a major (a woman above 18 years) under IPC and the newly-tabled bill is similar — rigorous imprisonment of not less than 20 years, but may extend to life imprisonment, and with fine. But the punishment for gang rape of a minor is imprisonment of life, a fine, or maybe death sentence.

The substantive changes are very few. Most of the provisions are similar to the IPC. Majorly, there has been reshuffling of provisions with a slight increase in punishment. In many ways, the bill holds defamed aspects of current IPC. It includes not penalising marital rape, rape laws are not gender neutral, and the age of consent is still high with respect to global average. 

Approach towards women and child safety 

Apart from the established statute, the willingness of the government to curb such offences through administrative machinery plays a major role towards a just society. 

The last year’s release of 11 persons under the remission policy of Gujarat Government convicted of raping Bilkis Bano while she was five months pregnant shows how the government is thoughtless towards such a horrendous crime. Even a union minister backed the release to those convicted persons. 

On August 17, when the Supreme Court questioned the Centre and Gujrat Government over the premature release of 11 convicts, they justified it on grounds that the case was not ‘rare of the rarest’ so convicts should be given chance to reform and reintegrate into the society. 

As per the current jurisprudence, there is no straight-jacked formula to define what constitutes ‘rare of the rarest’ but while deciding a case as such, there are two aspects which are to be considered: nature and the gravity of the crime. Bano was five months pregnant, she was gang raped, and seven of her family members were killed in front of her eyes. Looking at the nature and gravity, if the government considers it below the ‘rare of the rarest’, the intention is very clear that women and children's safety is nothing more than a rhetoric. 

If the government takes such an active step towards defending guilty in heinous crimes like gang rape and murder, no matter how strong the panel provisions are, there will always be a mockery of justice. The law should reflect the reality of society. Without addressing the core cause of crime and social engineering, stringent laws will end up being political shortcuts. The stress of criminal jurisprudence should be reformative rather than punitive

(Views expressed are personal.)