On Friday (August 5), Rajasthan Chief Minister Ashok Gehlot courted controversy after he blamed the Centre for increased murders following rapes in the country. He made the contentious remarks during a press conference.
The Congress leader claimed that the Union government had passed a law, making it mandatory to award death penalty to all rape convicts after the Nirbhaya case.
At about 4 minutes 36 seconds into his press conference, Gehlot alleged, “The situation is extremely grim in the country. Children are being raped! And the situation has worsened after law was made to award capital punishment to all rape convicts, following the Nirbhaya case.”
“After such a law was made, the killings of rape victims have increased. When the perpetrators see that the government is against them, they not only rape the victims but also kill them,” he claimed.
“I am seeing this trend across the country. This is a state of crisis for a democracy like India. I have never encountered such a situation before,” the Rajasthan Chief Minister concluded.
The truth behind the claims made by Ashok Gehlot
To begin with, there is no law that makes death penalty mandatory for all convicts of rape. Following the Kathua and Unnao rape case, the Modi government passed the Criminal Law (Amendment) Act of 2018 [pdf].
The Centre had then amended the Indian Penal Code of 1860 and Prevention of Child Sexual Offences Act of 2012 to introduce harsher punishments for the rape convicts. One of the major highlights of the legislation was the increase of minimum punishment for rape from 7 years to 10 years.
The law was made even stricter for the rape and gang rape of minor children. For instance, the punishment for rape of a girl below the age of 16 years is punishable by a minimum sentence of 20 years or life sentence.
The biggest amendment was perhaps in relation to the rape and gang rape of children below the age of 12 years. For the first time, a provision to award death penalty to the rapist was introduced in the IPC Section 376 (punishment for rape). A new section ‘376AB’ was incorporated into the existing law. It states –
“Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death.“
Another section of 376DB was inserted to account for gang rape of victim below the age of 12 years. It states –
“Where a woman under twelve years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life,which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death.“
Apart from introducing the provision of the death penalty for the rape of minors under the age of 12 years, another provision in rape law has been for awarding the death penalty, which is for repeat offenders. Section 376E of the IPC says if someone who was convicted of rape commits another rape, that convict can be given capital punishment.
Indian Penal Code section 376E says, “Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376AB or section 376D or section 376DA or section 376DB and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.”
Although the provision for capital punishment has been introduced for a certain cohort (victim age <12 years or repeat offenders) of rape victims, it does not automatically imply that the convict will be awarded the death penalty. The discretion ultimately lies with the Judiciary to decide the quantum of punishment on case-by-case basis.
Moreover, the death penalty is not even a provision in the law for rape cases, where the maximum punishments are jail of 10 years, 20 years and life imprisonment. Therefore, courts can’t award the death penalty if the age of the victim is above 12 years or if it is the first conviction of the accused in a rape case.
The Indian courts abide by the doctrine of rarest of rare case to award capital punishment to a convict. While some convicts were awarded the death sentences depending on the severity of case, all of those are generally rape and murder cases. And even in those cases, many convicts are pardoned and their death sentence is then converted to life imprisonment. In the 21st century, it has been used twice in India – one in the Hetal Parekh case and another in Nirbhaya case, both of which were rape and murder cases.
Thus, the Rajasthan Chief Minister is wrong in claiming that the Union government has made death penalty mandatory for all and that it is to somehow blame for the alleged rise in the killing of rape victims by the perpetrators.
