New Delhi: Despite a Haryana-based advocate-journalist pointing out a major flaw relating to the punishment for rape under Section 376 (1) and 376 C of the Indian Penal Code (IPC), that had crept into the text of the Criminal Law (Amendment) Ordinance, 2013, to the Prime Minister’s Office, the President’s Secretariat and the ministry of home affairs, the same error has crept into the Criminal Law (Amendment) Bill, 2018 which was tabled by Home Minister Rajnath Singh in Lok Sabha on July 23.
Use of ‘rigorous’ and ‘either description’ for punishment is contradictory
In February 2018, advocate Hemant Kumar had in a complaint to the PMO referred to his research on how the word “rigorous” got prefixed to imprisonment for the crime when the ordinance was finally approved despite not having figured in its draft.
Pointing out that in Section 376(1) of IPC it is mentioned that “whoever, except in the cases provided for in sub-section(2), commits rape, shall be punished with RIGOROUS imprisonment of EITHER DESCRIPTION for a term_____”, Kumar said the use of both the terms “rigorous” and “either description” was itself contradictory.
He had wondered “how if the term ‘rigorous’ is itself incorporated in this Section, then why the term imprisonment of ‘either description’ appears thereafter since in criminal law imprisonment means either simple or else rigorous as per section 53 of the IPC”. Similarly, in the case of Section 376C IPC, he had stated that the discrepancy existed.
Lawyer had earlier written to PMO about the discrepancy
Kumar had then written to the PMO that when he went deep into the issue, he learnt that “actually the Criminal Law Amendment Bill, 2012 as introduced in Lok Sabha on December 4, 2012, just days before Nirbhaya case, did not contain the term ‘rigorous’ but only “imprisonment of either description”, but thereafter when Justice J.S. Verma Committee recommended this imprisonment to be ‘rigorous’ then perhaps in a bit of haste, the word ‘rigorous’ was used in the text of this ordinance but without omitting the terms ‘either description’.”
Stating that the two terms were contradictory to each other, Kumar had said that they nevertheless got included. Wondering how such a “grave error” was committed despite this law being “thoroughly debated in both Houses before being passed and getting duly enacted”, he had urged the ruling dispensation to rectify this anomaly at the earliest.
In his complaint, the lawyer-journalist had also mentioned that five years had lapsed since the Criminal Law (Amendment) Ordinance, 2013 got promulgated by then President of India on February 3, 2013, in the aftermath of the Nirbhaya case. In April 2013, the Criminal Law Amendment Act, 2013, was duly enacted by Parliament but it came into force retrospectively from the date of promulgation of the Ordinance, i.e. February 3, 2013.
Stating that both in the text of the ordinance as well as the Amendment Act, 2013 the discrepancy pertaining to the terms “rigorous” and “either description” for the imprisonment existed, Kumar had sought in his representation to PMO as also the President’s Secretariat its urgent rectification.
Words that should have been corrected found mention in both ordinance, amendment bill moved this year
However, to his horror, he found the discrepancy again raising its head in the Criminal Law (Amendment) Bill, 2018.
Reacting to the development, Kumar said “it is highly expected that this legislation would get passed from both Houses” and would then get the assent from President thereby becoming a duly enacted Act.
He said three months back, this Bill had got promulgated as Criminal Law (Amendment) Ordinance, 2018 which resulted in its immediate enforcement. Even then, he said, he was “utterly surprised” that the Centre had failed to rectify the anomaly that occurred at a couple of places in Section 376 of the IPC and has been prevalent therein ever since the previous anti-rape law was promulgated over five years back.
In view of the anomaly not getting rectified despite his caution, Kumar has again tweeted to the President, prime minister, Union home minister and law minister to seek their immediate intervention in this matter.