Validity of Child Gang-Rape Law

• 17 Aug 2022

For Prelims: Supreme Court, Section 376-DB, Section 376-AB, Indian Penal Code, Article 21, Article 14.

For Mains: Reforms required for Life Imprisonment in Indian Penal System.

Why in News?

Recently, a petition was filed by a 29-year-old man, in the Supreme Court, who is serving a life sentence, for the gang rape of a nine-year-old in Maharashtra.

• The Supreme Court will examine the validity of a law which sends a guilty man either to a lifetime in prison or to the gallows for gangraping a child under 12 years without affording him a chance to atone for his crime or reform.

What are the Issues Highlighted in the Petition?

• Restrict judge’s options:
  • It argued that Section 376DB (gang rape of a child under 12 years of age) of the Indian Penal Code restricted the trial judge’s options to either a sentence for the remainder of the person’s natural life or the death penalty.
    • However, Life imprisonment is the minimum, mandatory punishment under the provision.
• Anomaly in 2018 Amendment:
  • The petitioner further argued that there is an anomaly in the sentencing system drafted through the criminal amendments carried out in August 2018.
    • Section 376DB was introduced in 2018 when the penal code was amended to provide harsher sentences for the offense of rape.
• Arbitrariness:
  • While Section 376-AB provided for a minimum sentence of 20 years for a person convicted of raping an under-12 girl.
  • Whereas, Section 376-DB provides for a mandatory minimum punishment of life imprisonment for each of the persons involved in the gang rape of an under-12 girl.
  • Both sections provided the death penalty as maximum punishment.
    • This life sentence without remission could mean 60-70 years of jail for a person who is in his twenties.
• Violates Right to Life:
  • Section 376DB offered a trial court no option but a life sentence or the higher punishment of the death penalty.
  • The petition argued that Section 376DB violated Articles 21 (Right to life) and Article 14 (right to equality) of the Constitution.
• Global Scenario:
  • Given the global context of this issue, the European Court of Human Rights in the case of Winter vs the United Kingdom ruled that life imprisonment without a real prospect of parole was a violation of Article 3 of the European Convention on Human Rights.
    • It held that life sentences cannot be considered just punishment as they provided the prisoner with no opportunity for atonement and such sentences were incompatible with respect for human dignity.
    • The U.S. Supreme Court had held that in extreme cases, a disproportionate sentence violated the Eighth Amendment, which prohibits cruel and unusual punishment, of the U.S. Constitution.

What's the View of the Supreme Court?

• The SC bench said that this question required consideration, as the SC has already quashed the provision imposing mandatory death sentence as unconstitutional.
  • Further, it asked an additional solicitor general, as well as the petitioner to submit written submissions and propositions on the issue.
• Historical Perspective:
  • Also, the SC in 'Mithu Vs Punjab' in 1983, had ruled that Section 303 of IPC was unconstitutional to the extent it provided for the mandatory death penalty to a person who committed a murder while serving a life sentence in another case.
    • Section 303 had mandated that courts would impose no other punishment but the death penalty in such cases.

What are the Other Related Initiatives for Child Protection?

• POSCO (Protection of Children from Sexual Offences).
• Child Abuse Prevention and Investigation Unit.
• Beti Bachao, Beti Padhao.
• Juvenile Justice Act/Care and Protection Act, 2000.
• Child Marriage Prohibition Act (2006).
• Child Labour Prohibition and Regulation Act, 2016.

Source: TH