India: Crime of Sexual Assault Penalized

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(Feb 11, 2013) On February 3, 2013, the President of India, Pranab Mukherjee, signed with immediate effect a Criminal Law (Amendment) Ordinance, adopted by the country's Cabinet on February 1, which will impose harsher penalties for the current crime of rape, which is replaced in the Ordinance with the crime of sexual assault. (Alison Sacriponte, India President Signs Sexual Assault Ordinance, PAPER CHASE NEWSBURST (Feb. 4, 2013); Criminal Law (Amendment) Ordinance, 2013, SCRIBD.COM (Feb. 3, 2013).)

Adoption of the Ordinance was prompted by the gang rape and assault of a 23-year-old physiotherapy student on a private bus on December 16, 2012. Her male companion was severely beaten in the attack. The young woman's subsequent death on December 29 from the severe injuries she sustained led to mass, nationwide demonstrations and resulted in the formation by the central government of a three-member commission, headed by a former Indian Supreme Court Chief Justice, J.S. Verma, to "review[] the present laws so as to provide speedier justice and enhanced punishment in cases of aggravated sexual assault." (India: Rape Victim's Death Demands Action, Human Rights Watch (HRW) website (Dec. 29, 2012); Sacriponte, supra.) Many of the recommendations in the report on how India's legal institutions should handle rape cases were taken into consideration in the drafting of the Ordinance. (Sacriponte, supra.)

Women's rights groups, civil society organizations, and activists are reported to be critical of the Ordinance, arguing that it is inadequate to combat sexual crimes against women and was passed without due debate. (Sacriponte, supra.) According to Human Rights Watch, "[t]he New Delhi gang rape highlighted the widespread problem of sexual violence in India," noting that the country's National Crime Records Bureau registered 24,206 rape cases in 2011, but experts contend the number of unreported sexual assault cases is much higher. (India: Rape Victim's Death Demands Action, supra.)

The Verma Report

The broad-ranging, 631-page report covered not only specific recommendations but included suggestions on political, judicial, and cultural reform as well. Its harshest criticism was directed against the manner in which the police and the judiciary have responded to rape accusations; it therefore argued that the government's most pressing tasks included increasing police accountability and applying harsher penalties for persons convicted of sexual assault. However, it did not advocate the death penalty for those convicted of rape. Among its other recommendations were the creation of special courts to handle rape cases, increased enforcement of laws against human trafficking, and allocation of additional judicial resources to further speedier trials and appeals of rape cases. (Keith Herting, India Panel Suggests Legal Reforms in Response to Rape Incident, PAPER CHASE NEWSBURST (Jan. 23, 2013); J.S. Verma, Leila Seth, & Gopal Subramanium, Report of the Committee on Amendments to Criminal Law (Jan. 23, 2012), JURIST website.)

The Criminal Law (Amendment) Ordinance 2013

The Ordinance newly stipulates imposition of the maximum sentence of the death penalty upon conviction in cases of sexual assault that result in death or a vegetative state (art. 376A). It doubles, to 20 years from 10, the minimum sentence available for sexual assault of a minor, by a group, or by policemen or a person in authority, etc., and makes the sentence for such crimes extendable to life imprisonment without parole. In addition to cracking down on sexual assault, the Ordinance introduces, among other crimes, those of voyeurism, stalking, disrobing of women, and acid attacks as specific offenses under the Indian Penal Code. (Sacriponte, supra; Vishwa Mohan, President Pranab Mukherjee Gives Nod to Tough Anti-Rape Ordinance, THE TIMES OF INDIA (Feb. 4, 2013).)

India had had an eight-year, unofficial moratorium on the death penalty until November 2012, when it hanged Ajmal Kasab, convicted of having taken part in the 2008 terrorist attack on Mumbai. On February 9, 2013, Azfal Guru, condemned to death for his role in the 2001 attack on the Lok Sabha (India's parliament), was reportedly hanged in secret. Indian law prescribes that the death penalty is to be applied only in the "rarest of rare" cases. (India: Secret Hanging a Major Step Back, HRW website (Feb. 9, 2013).)

The Ordinance provisions took effect immediately upon the President's signature because the Lok Sabha was not in session, and the President deemed it necessary to act quickly. If a bill is not passed later by the Lok Sabha, the provisions will lapse and no longer be valid. (Sacriponte, supra.)

The Criminal Law (Amendment) Bill 2012

An earlier legislative proposal, the Criminal Law (Amendment) Bill, No. 130 of 2012, was submitted to the Lok Sabha on December 4 and referred to committee on December 28, 2012. This bill seeks to amend the Indian Penal Code, 1860, the Code of Criminal Procedures, 1973, and the Evidence Act, 1872. The amendment bill introduces three new offenses, including an offense related to acid attacks and replacement of the current offense of rape with sexual assault. (The Criminal Law (Amendment) Bill, 2012, PRS LEGISLATIVE RESEARCH (last visited Feb. 7, 2013) [with links to the bill text, bill summary, and comparison between the bill; the Verma Report; and the Ordinance, 2013] [if the link is inoperative, see The Criminal Law (Amendment) Bill, 2012, SCRIBD.COM (last visited Feb. 8, 2013); see also Full Text: The Criminal Law (Amendment) Bill, 2012, IBN LIVE (Dec. 31, 2012, at 2:05 p.m.), & Sajid Sheikh, Criminal Law (Amendment) Bill, 2012: A Welcome Step, LAWLEX.ORG (Jan. 27, 2013).)

The Code, the Ordinance, and the 2012 bill all provide a minimum punishment of seven years, a maximum punishment of life imprisonment, and a fine for the offense of rape (in the Code) or sexual assault (in the newer documents). However, the Code allows the court to impose a lower sentence while the bill removes this power of the court. Neither the Code nor the amendment bill contain a provision that specifically addresses sexual assault resulting in the victim's death or persistent vegetative state. (Harsimran Kalra, Crimes Against Women: How the State Changed Its Position: A Comparison of Criminal Law Amendment Bill, Justice Verma Report and the Ordinance, GOVERNANCE NOW (Feb. 07, 2013) [click on attachment to see comparative chart]; The Indian Penal Code, World Intellectual Property Organization website (last visited Feb. 7, 2013).)

Related Developments

Five of the six suspects in the New Delhi gang rape case were formally indicted on 13 charges, including rape and murder, in December 2012, after the death of the victim. The sixth person is a juvenile and will be tried by a juvenile court. One of the men's lawyers indicated that the five had pleaded not guilty in statements submitted to the fast-track court. (James Legge, India Gang Rape Suspects Plead Not Guilty, THE INDEPENDENT (Feb. 2, 2013).) Prosecutors have stated they will seek the death penalty in the case. A charge sheet formally submitted to the court on January 3 indicates that prosecutors have DNA evidence that links the men to the attack, in addition to statements made by the victim before her death and by her male companion. (Tanvi Sharma & Alex Rodriguez, Indian Prosecutors Will Seek Death Penalty in Gang-Rape Case, THE LOS ANGELES TIMES (Jan. 3, 2013).)

At the suggestion of the Delhi government, which approved the proposal in October 2012, the Delhi High Court decided on December 19, 2012, to establish five special fast-track courts to handle sexual assault cases against women. (Five Special Fast-Track Courts for Sexual Assault Cases, DNA (Dec. 19, 2012).) Delhi is not the first territory to have this type of court, however. The State of Maharashtra has similar courts, and the State of Orissa has just opened its first fast-track court to try sexual assault cases in Cuttack. The State of Rajasthan was the first state to establish such a special court, in Jodhpur in 2005. (Atul Mathur, Only Fast-Track Courts to Try Sexual Offences in Capital, HINDUSTAN TIMES (Dec. 19, 2012); Special Court Opens in Cuttack, THE TIMES OF INDIA (Feb. 5, 2013).)

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Last updated: 02/11/2013