Ordinance will be applicable legally from the time the President signs it, to be presented in Parliament in monsoon session in July.
New Delhi: The Union Cabinet Saturday passed an ordinance to bring an amendment to the POCSO Act paving the way for awarding the death penalty for raping a girl below 12 years of age — a move seen as significant in the wake of the Kathua rape-murder case.
The ordinance will now be sent to the President for his signature, following which it will be presented in the monsoon session of Parliament that begins in July.
However, the ordinance will be applicable legally from the time the President signs it. “An ordinance is as powerful as a law. After the President signs it, the fresh cases of rape that are reported now will fall into the ambit of the amended Act,” a government official explained.
“From tomorrow if a person is accused of raping a minor and is convicted, the quantum of punishment will be decided according to the amended act, that is, the maximum punishment for him will be a death sentence,” the official added.
A minor only until she starts to menstruate?
While the proposal was being drafted by a group of ministers, the lawmakers debated that the girl be considered as a minor until she attains puberty or before she starts to menstruate, following which she should be treated as a major, sources told ThePrint.
“When a minor becomes a ‘woman’ is debatable as the definition of a ‘woman’ is still unclear. The conflict arises because of different age groups mentioned in different marriage laws for when girl becomes a major and is ready for marriage,” a government official said.
“What initiated this move were cases of brutal rape and murder of an eight-year-old girl in Kathua and nine-year-old in Surat,” he added.
While some lawmakers said that any girl below the age of 12 years be considered as a minor, others said that it should be made 16 years
The age was finally decided upon to be 12 years.
Once the cabinet clears the ordinance, it will be taken up in Parliament in its monsoon session that begins in July.
Each marriage laws has its own definition
What makes this complicated is that the definition of when a girl becomes a woman varies under different marriage laws. According to the Hindu Marriage act, a girl is a minor until she turns 18.
However, according to the Muslim Personal Law, a girl becomes a woman at the age of 15 or after she attains puberty.
Under the existing law, the maximum punishment for “aggravated assault” is life in jail. The minimum sentence prescribed is seven years in jail. Four states – Haryana, Rajasthan, Madhya Pradesh and Arunachal Pradesh – have already passed laws making the rape of minors punishable by death.
The proposal was drafted by a GOM that included officials from Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs and Ministry of External Affairs.
The proposal
The government told the Supreme Court Friday that the process to amend the Act has been launched, and the special legislation would include death penalty for raping children under 12.
Last month a PIL was filed by advocate Alakh Alok Srivastava seeking death penalty for those found guilty of sexual assault of children under 12. It drew the court’s attention to the alleged rape of the eight-month-old girl by her cousin in January.
The petition sought Rs 10 lakh as compensation for the victim besides framing of guidelines that would ensure the completion of investigation and trial of cases under POCSO within six months of the registration of the FIR.
Additional solicitor general P.S. Narasimha Friday placed before the court a letter from the deputy secretary of the ministry of women and child development, Anand Prakash, which stated that an amendment to the law was under active consideration.
“Petition regarding the amendment of provisions of the POCSO Act 2012 so as to provide maximum punishment of death penalty for commission of offences of rape of children of 0-12 years of age is under active consideration by the ministry,” the letter read.
“The ministry is sensitive to the plight of young children brutally abused in the most horrific manner. The ministry is proposing to amend POCSO Act-2012 to introduce death penalty for abusers in cases of aggravated sexual assault against children,” it said.
Quantum of punishment to depend on age of victim
According to the proposal, the quantum of punishment to the rape convict –whether a death penalty or life imprisonment — shall vary depending upon the age of the victim.
“We see cases where the victims are as young as eight months to one-year-old. So, the severity of the punishment given to the rape convict will depend on the age of the victim,” a government official said, speaking on condition of anonymity.
“The younger the victim, the more severe will be the punishment. We will be pushing for a death penalty for a convict for raping a girl child below the age of 12,” the official added.
After the Nirbhaya case in December 2012, when criminal laws were amended, a provision of death penalty in case the woman either dies or is left in a “vegetative state” after rape was introduced through an ordinance which later became the Criminal Law Amendment Act.