The ordinance implements many recommendations of the Justice J S Verma panel that was constituted after the December 16 gangrape of a 23-year-old woman in a bus in Delhi. The three-member committee had suggested several changes and additions to laws to check crimes against women.
However, it had not recommended the death penalty, saying a strong case had been made before the panel that “it would be a regressive step to introduce death penalty for rape even where such punishment is restricted to the rarest of rare cases”.
But the ordinance, cleared by a special meeting of the cabinet, allows capital punishment in cases of aggravated sex crimes leading to death or a persistent vegetative state for the victim, with the minimum punishment being 20 years in jail. The ordinance must now be promulgated by the President.
“The cabinet, after due deliberations, decided to request the President to promulgate the Ordinance on Criminal Laws, 2013,” Law Minister Ashwani Kumar told The Indian Express.
“The ordinance contains provisions of the bill which is pending in Parliament as well as the recommendations of the Justice J S Verma committee. The approval of the ordinance in an utmost expeditious manner is in response to the sensitivities of the people felt in the aftermath of the gruesome incident that happened on December 16,” he said.
The Home ministry issued a list of recommendations of the Verma committee that had been accepted in full and some that were only partially accepted. Some recommendations have been rejected as well (see box).
Among suggestions of the Verma panel not accepted is doing away with the provision for obtaining sanction for prosecuting a police or armed forces personnel in areas where the Armed Forces Special Powers Act (AFSPA) is in force in cases of sexual crimes. The government has also rejected the proposal that sought to fix criminal responsibility on the leader of a force for a sexual crime committed by a subordinate.
The decision to issue an ordinance was taken despite reservations at the highest level of the government about the propriety of such a move so close to the Budget session of Parliament which begins February 21.
Sources told The Indian Express that the government has decided to withdraw from Parliament the Criminal Laws (Amendment) Bill, 2012, and introduce an amended bill which will be a copy of the ordinance. The Criminal Laws (Amendment) Bill, 2012, introduced in the Lok Sabha on December 4, 2012, is pending with the standing committee.
Many clauses of the ordinance are similar to the bill and a section in the government felt that issuing an ordinance on an issue pending in Parliament could be a breach of the legislature.
Sources said the ordinance provides for a new crime of gangrape, which will be punishable with a minimum prison term of 20 years provided it is proved that more than one person was involved in the crime.
Anyone convicted for throwing acid will be jailed for a minimum of 10 years that may extend to life imprisonment and a fine of Rs 10 lakh.
A man who rapes his estranged wife during separation can be jailed for seven years while those convicted for the new crimes of stalking, voyeurism and intentionally touching a girl or woman with sexual intent will get a minimum jail term of one year.
The ordinance also provides for an amendment in the Indian Penal Code to define trafficking, which will be punishable with a jail term of no less than seven years and may extend to life imprisonment. Employment of trafficked persons will also be a penal crime now.
Public servants who knowingly don’t act to prevent rape or refuse to take cognisance of a rape case will be jailed for between one and five years. The ordinance also says that a rape victim’s moral character can’t be questioned during trial.
However, the government has not accepted the Verma panel recommendation about paying compensation to victims of sexual assault. It has also not accepted the panel’s suggestion to keep rape gender-specific to women.
Home ministry sources told The Indian Express that the ministry plans to write to the Ministry of Women and Child Development, suggesting an amendment to the Juvenile Justice Act to lower the age of juveniles who can be tried for crimes committed by them to 16 years from 18.