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April 2013

A Students’ Union Publication

CAMPUS LAW CENTRE

STUDENT LAW REVIEW Volume I Issue I

ISSN 2321-0028


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C AMPUS L AW CENTRE

STUDENT LAW REVIEW

Volume I Issue I April 2013

Editorial Board 2012-2013

Editor-in-Chief President, Students’ Union

Siddharth Peter de Souza Ajitesh K Kir

Editors

Anu Chowdhry Udit Rastogi Sumedha Sarkar

Patron – in-Chief

Professor J.L. Kaul


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The Campus Law Centre Student Law Review (CLCSLR) seeks to publish and provide

avenues for student research and scholarship.

Published by the Students’ Union, Campus Law Centre, Faculty Of Law, University of

Delhi.

The publication of this Volume has been generously supported by Singh and Associates.

No reproduction, storage or transmission except via fair dealing of any part of this

publication may take place without prior written permission of the Students’ Union of

Campus Law Centre.

Please note that though every effort has been made to ensure that the information in

CLCSLR is accurate and appropriately cited/referenced, neither the Editorial Board nor

the Students’ Union shall be held liable or responsible in any manner whatsoever for any

consequences resulting from inaccuracies, errors or views taken by authors in the Journal.

Further, the views expressed by the authors are not necessarily those of the Editorial Board

or of any sponsors of Campus Law Centre Student Law Review.

©Campus Law Centre Student Law Review 2013. All rights reserved .

ISSN 2321 – 0028 (Print)

Supported by:

Mr. Manoj K. Singh,

Managing Partner

Singh and Associates


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C AMPUS L AW CENTRE

STUDENT LAW REVIEW Volume I Issue I April 2013

CONTENTSForeword vii

Editorial ix

Acknowledgments xi

Articles

1 Capital Punishment and the Cultural Discourse of Femininity 1 in the Offence of RapeVanya Kumar

2 Child Sex Abuse: The Menace Decrypted 21Susanah Naushad & Amana Ranjan

3 Democratic Dilemmas in Justifying Murder: The Case of 47 Targeted Killings under International Law Nidhu Srivastava

4 Collective Dominance: How Does India Fare? 67Charu Rawat

5 Anti-Competitive Implications of Reverse Payment 87 Settlements with Special Reference to India

Anirudh Krishan Gandhi and Hitakshi Mittal

6 GAAR-Is India Ready for a Double-Edged Sword? 107 Meghna Chandra

7 Understanding Traditional Knowledge in Post TRIPS Regime 133 Mayank Kapila

8 From Warsaw to Montreal-Ramifications of Developments in 151 Aviation Liability: An Indian PerspectiveSwati Singh Baghel and Gargi Rajvanshi


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9 The Dilemma of Prospective Overruling: One Step Forward or 163 Two Behind?Prithvi Rohan Kapur

10 The Curious Case of Shares with Superior Rights: Is The Ban 175 Imposed on Their Issue Justified?Srinivasan Ramaswamy

11 ‘Smile, You’re on Candid Camera’— Finding Solutions for 193 Privacy Violations by the Paparazzi in the Right of PublicitySamira Varanasi


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A tribute to

Justice Jagdish Sharan Verma

(1933 – 2013)

Who inspired and believed in young people


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2013 CLCSLR VOL.1 ISSUE 1

vii

FOREWORD

I am pleased to introduce the inaugural issue of the Campus Law

Centre Student Law Review. An initiative of the Students’ Union, it is the

first ever student-edited and peer reviewed publication of the Campus Law

Centre, Faculty of Law (University of Delhi).

The Law Review has two primary goals. First, it will provide a forum

for students to discuss, debate and deliberate on contemporary legal issues.

Second, the Review will fulfil the needs of the Campus Law Centre student

community by encouraging writing, editing and research among the student

community. It will be an annual, peer reviewed publication with a student

Editorial Board committed to promoting legal scholarship.

Campus Law Centre has an outstanding tradition of producing some

of India’s most erudite legal minds and it is this culture that needs to be

preserved and nurtured by creating opportunities for law students who will

eventually take up a career at the Bar or the Bench.

The inaugural issue of the CLCSLR covers multidisciplinary issues

such as Capital Punishment in Rape statutes, developments in Indian

Competition Law, GAAR and tax avoidance, Aviation Liability and Doctrineof Prospective Overruling amongst others.

I would like to commend the Editorial Board and Ajitesh K Kir,

President, Students’ Union, for this commendable effort and look forward to

the many contributions it is sure to make to legal discourse in the future.

Professor J.L. Kaul

Professor in-Charge

Campus Law Centre

April 2013

New Delhi


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EDITORIAL

In the academic session of 2012-2013, the Students’ Union of

Campus Law Centre, Faculty of Law, University of Delhi, resolved to start aStudent Law Review in the hope of encouraging legal research and

scholarship within the student community. The principle that the Students’

Union sought to uphold was that the initiative would be entirely student-

driven in order to enable capabilities and engineer creative freedom.

The Campus Law Centre Student Law Review (CLCSLR) was

established in October, 2012 with the aim of promoting the inter-disciplinary

study of issues concerning law and society. The past year has been a

fascinating one in the legal arena, giving the Editorial Board the exciting

opportunity to select articles that are both unique and original contributions

to existing literature.

The inaugural edition of CLCSLR received an overwhelming

response with over 110 submissions from students across law colleges in

India and abroad. The quality and diversity of submissions affirmed our

belief that an innovative spirit was alive and prospering within the student

community. The task before the Editorial Board was therefore a difficult andchallenging albeit exciting one.

In an effort to ensure the highest quality of student research, the

Editorial Board invited a team of accomplished Reviewers who included

graduate students at reputed Universities across the world, Supreme Court

and High Court Law clerks and young working advocates. Their inputs and

comments greatly facilitated the process of preliminary and final selection.

The present volume of CLCSLR is interdisciplinary in nature andcovers a wide spectrum of issues. Vanya Kumar has examined the provision

of capital punishment in rape statutes to ascertain whether such punishment

is in fact antithetical to the interests of the victim. Amana Ranjan and

Susanah Naushad have researched legislative attempts in India to tackle the

menace of sexual crimes against children as well as critically examined The

Protection of Children from Sexual Offences Act, 2012. Nidhu Srivasatava

has discussed the normative implications of the use of targeted killings by

States through an analysis of the legal basis and limitations of such actions.

Two articles in this volume deal with the nascent and evolving

domain of Competition Law in India. Charu Rawat has provided an analysis


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A CKNOWLEDGMENTS

The Editorial Board would like to thank Mr. Aayush Agarwala, Mr.

Abhinav Jaganathan, Mr. Aditya Mathur, Ms. Mythili Vijay Kumar Thallam,Ms. Preetika Mathur, Mr. Rohan Alva, South Asia Human Rights

Documentation Centre, Ms. Shivambika Sinha, Mr. Swapnil Gupta, Mr.

Utkarsh Saxena, Ms. Vindhya Srinivasamani, Ms. Vrinda Bhandari and Mr.

Zachariah Jacob for their invaluable counsel and assistance during the review

process, Mr. Abhishek Subarno for his assistance in publicity efforts and Ms.

Achala Upendran for her expert advice with the final manuscript. The

Editorial Board would also like to thank Mr. Anurag Rawal, Former

President of the Students’ Union for his support.

The publication of the volume would not have been possible without

the goodwill of Mr. Manoj K. Singh, Managing Partner, Singh and Associates

who supported and ensured the establishment of this Review .


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CAPITAL PUNISHMENT AND THE CULTURAL

DISCOURSE OF FEMININITY IN THE OFFENCE

OF RAPE

Vanya Kumar*

This article seeks to establish that the provision of capital punishment in

rape statutes, as well as the guiding rhetoric behind it, is antithetical to the interests

of the rape survivors, as it premised on the idea of rape as a ‘f ate worse than death ’ .

The equation of rape with death is purely linguistic, however, it functions as

justification for a societal order that ostracizes rape victims and renders them

‘ socially dead ’ . Further, in this context, models of ‘ ideal victims ’ are created, asdefined through Victorian notions of chastity, who deserves legal justice (and whose

rape is deserving of capital punishment), while relegating the other survivors and

their narratives to the margins. The marital rape exemption suggests that it is not

the violence, but rather the sexual nature of the crime which is often highlighted and

leads to the creation of categories of ‘ legitimate ’ rape. This legitimacy not only

devalues the victim, but also creates hierarchies which are often contingent upon the

sexual history of the victim. It is further argued that such a penalty for a non- homicide crime is contrary to all theories of deterrence and that the fundamental

message that is advocated through such a provision is primarily to the victim rather

than the perpetrator as it normalizes the need for sexual surveillance and moral

policing of the body of the woman and lays a greater burden of proof on her conduct.

I. INTRODUCTION

‘ It is a fate worse than death’.

‘ It is true rape is a most detestable crime, and therefore ought severely and impartially to be

punished with death; but it must be remembered, that it is an accusation easily to be made

and hard to be proved, and harder to be defended by the party accused, tho never so

innocent.’

Sir Matthew

Hale, 1676

1

* Ist Year, LL. B, Campus Law Centre, Faculty of Law, Delhi University1 Blackstone, William; Coleridge, John Taylor: Commentaries on the laws of England: In

four books, Volume 2, Pg. 215.


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The recent gangrape of a 23-year-old victim in Delhi and the

widespread protests that followed garnered much attention. So much so that

the outrage acted as the immediate framework for the introduction of TheCriminal Law (Amendment) Bill, 2012 in the Lok Sabha on 4 December

2012 by the Minister of Home Affairs, Mr. Sushil Kumar Shinde. This Bill

seeks to amend the Indian Penal Code, 1860, the Code of Criminal

Procedures, 1973, as well as the Evidence Act, 1872, specifically in the matter

of sexual offences. Following this Bill, the Criminal Law (Amendment)

Ordinance, 2013, was promulgated by the President of India, Pranab

Mukherjee, on 3 February 2013. This Ordinance has been criticized on the

grounds that it ignores some of the major provisions envisaged by the Justice Verma committee2, especially in the matter of marital rape and the

amendment of the Armed Forces (Special Powers) Act. However, External

Affairs Minister, Salman Khurshid, has stated that the ordinance serves the

sole purpose of addressing the sense of urgency within the country in the

interim period before the Bill is formally brought before the Parliament.3

One of the most contentious legal issues to have arisen from the case

in question is in relation to the repeated call for the provision of death

penalty in anti-rape laws. This call, while rejected by the Justice Verma

Committee, on grounds that ‘it was a unanimous suggestion of even women

leaders who have been fighting for the cause for decades. The current trend

against the death penalty ’4 found partial validation in Section 8, Criminal Law

(Amendment) Ordinance, 2013, which under Section 376A has included a

maximum provision of ‘death’ as punishment for instances of rape which

result in death or the persistent vegetative state of the victim.5

Coming as it did soon after the execution of Ajmal Kasab and justbefore the execution of Afzal Guru, respectively the third and fourth

executions in India since 1995, this demand has also further fuelled the

debate concerning the sustainability of the death penalty in a democratic

state, especially in an era wherein humanitarian concerns, as voiced by

organisations ranging from intergovernmental bodies like the UNHRC and

non-governmental organisations like Amnesty International, have become

2 Constituted to recommend amendments to criminal law relating to quicker trial andenhanced punishment for rape accused.

3 “Open to revisions in anti-rape bill: Govt”: Times of India. TNN 3 Feb 2013,4 “Didn't Talk to Shinde Even Once: Justice Verma”: Outlook India , 27 Jan 20135 The Criminal Law (Amendment) Ordinance, 2013, Pg. 10


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the recognised basis, as well as the primary goal, of various legal systems

across the world. Interestingly enough, India was one of the 39 countries to

vote against a recent UN General Assembly draft resolution calling for a

global moratorium on executions

6

with an agenda of further abolishing thedeath penalty, claiming the State’s non-encroachable ‘sovereign right’ to

determine its own legal system. Two days after this oppositional stance,

Kasab was executed.

The demand for capital punishment for rape has overwhelmingly

echoed from all strata of civil existence, including noted politicians like the

Leader of Opposition in the Lok Sabha Sushma Swaraj7, Punjab Chief

Minister Parkash Singh Badal8, AIADMK’s V. Maitreyan and DMK’s

Vasanthi Stanley 9. In this context, it is noteworthy that within the scope of

the individual case of the Delhi gang-rape victim, no separate law need be

enacted in order to facilitate the application of the legal provision of the

death penalty to the alleged perpetrators of this particular crime. The accused

had initially been booked under sections 307 (attempt to murder), 201

(destruction of evidence), 365 (kidnapping or abducting), 376 (2)(g) (gang

rape), 377 (unnatural sexual offences), 394 (voluntarily causing hurt in

committing robbery) and 34 (common intention) of the Indian Penal Code.10

However, the unfortunate death of the victim ensured that section 302 of the

Indian Penal Code, the legal provision for murder, could be added alongside

the other offences listed under the Act.

II. CAPITAL PUNISHMENT IN INDIA AND THE RAREST OF RARE

DOCTRINE.

A. JUDICIAL PRONOUNCEMENTS

In India, culpable homicide amounting to murder is at present acrime for which the death penalty may be invoked. Nonetheless, as is well

known, capital punishment in India is limited by the ‘rarest of rare’ doctrine.

This doctrine was evolved through the ruling of the Honourable Supreme

6 Moratorium on the use of the death penalty (Document A/C.3/67/L.44/Rev.1)7 Indian Express . N.p., n.d. Web. 15 Jan 2013.

8 “Parkash Singh Badal Wants Death for Rapists”, Times of India . N.p., 11 Jan 2013.9 “Delhi Gangrape Shakes Parliament; Jaya Bachchan Breaks Down, Sushma...” n.d.: n. pag.

Indian Express . 24 Dec. 2012.10 “Delhi Gangrape: Police Invoke Murder Charges against Accused”, Indian Express . N.p.,

29 Dec. 2012.


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Court in the 1980 case, Bachan Singh v. State of Punjab 11, which restricted the

application of the death penalty to cases wherein ‘the alternative option is

unquestionably foreclosed’. The reasoning behind the ruling highlighted that

‘a real and abiding concern for the dignity of human life postulates resistanceto taking a life through law's instrumentality ’. In Rajendra Prasad v. State of

U.P 12 it had earlier been held that the imposition of the death penalty must

relate not to the crime but to the criminal and that it was to be awarded only

when security of state or public order was threatened. In Machhi Singh v. State

of Punjab 13 the Apex Court established that the distinguishing factors of a

‘rarest of rare’ case are:

1. Is there something uncommon about the crime which renders the

sentence of imprisonment for life inadequate and calls for a death

sentence?

2. Is the crime such that there is no alternative but to impose a death

sentence even after according maximum weightage to the mitigating

circumstances which speak in favour of the offenders?

In other judicial pronouncements, including Swamy Shraddananda v.

State of Karnataka 14, the Supreme Court further restricted the grounds for

capital punishment by stating that the measurement of the ‘rarest of rare’ criterion is not only qualitative, that is, according to the subjective nature of

the crime, but also quantitative. In Santosh Bariyar v. State of Maharashtra 15 the

Apex Court stated that the burden is on the prosecution to prove that there

is no possibility of rehabilitation and ‘life imprisonment will be futile’. It is

understood that the demand for death penalty in cases of rape wherein the

victim dies would be irrelevant, as Section 302 of the IPC and the Criminal

Law (Amendment) Ordinance, 2013 incorporate the same. The call for the

‘death sentence’ therefore, in order to create a distinction from what the law

already provides for, must pertain to non-homicidal rape. That is, through the

public discourse, rape in itself is sought to be made a capital crime. It is

noteworthy that Section 8 of the Criminal Law (Amendment) Ordinance,

2013 has sought to contain the demand, by creating an aggravated category

11 AIR 1980 SC 89812 1979 AIR 91613 1983 SCR (3) 41314 2008 AIR 304015 Criminal Appeal No. 452 of 2006


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of rape contingent upon the condition of the victim, without including non-

homicidal rape per se within its ambit.

B. GLOBAL SCENARIO

It is therefore obvious that the legal system is increasingly moving

away from the death penalty, fortified perhaps by the global trend, as

international opinion of basic, standardized human rights gains worldwide

credence through general State consensus. According to a report published

by Amnesty International to mark the ‘10th World Day Against The Death

Penalty ’16, the number of abolitionist countries currently stands at 97, as

opposed to 80 in 2003, while 75 States are party to the ‘Second Optional

Protocol to the International Covenant on Civil and Political Rights’

(ICCPR-OP2), aiming at the abolition of the death penalty, a third having

joined in the last decade. Further, it was noted that even in retentionist

countries, severe legal restrictions are placed on the application of the death

penalty; for instance, in the case of Susan Kigula and 417 ors v. A.G.17 the

Supreme Court of Uganda found that prolonged periods on death row had

an adverse effect on the condemned prisoners’ physical and mental state and

thus held it unreasonable to hold a person beyond three years after

confirmation of the sentence.Keeping in mind both the national and global scenario; punishment

for rape, whether homicidal or non-homicidal, would necessarily be bound

by the same restrictions imposed by Supreme Court judgments and

guidelines. Within this context, the position of non-homicidal rape becomes

important. According to the data provided by the National Crime Record

Bureau - the statistical wing of Indian Police under the Ministry of Home

Affairs, the reported cases in 2011 marked an increase of 873% from 1971

when the first rape case was recorded by the Bureau. However, these

statistics only underscore the reported cases; in 1995, a survey conducted by

the Institute of Development and Communication (IDC) in Punjab observed

that for every case of reported rape, there were 68 unreported instances.

While comparable statistics are not available for other cities, the widely-cited

number for the rest of the country is 1:10.18

1610th World Day Against the Death Penalty: Ten Years of Progress : Amnesty International: ACT50/009/2012

17 Constitutional Appeal no.3 of 2006, Uganda.18“Imposing Restrictions on Women like Dress Code Ensures More Violence against them”, Economic Times .N.p., 9th Jan. 2013.


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Within a superficial reading of the concerned data, it is immediately

evident that regardless of the qualitative nature and brutality of individuated

crimes, quantitatively speaking, ‘rape’ in itself cannot be regarded as an

offence that comes under the doctrine of ‘rarest of rare’ cases. It is implicitthat the inclusion of the death penalty in the Ordinance is suggestive rather

than absolute, and that judicial discretion will be paramount even in

pronouncing sentences for cases wherein the rape victim dies or enters a

permanently vegetative state. In fact, the sole interpretation of what

constitutes ‘rarest of rare’ seems to rest in the hands of the higher judiciary;

in a 2013 judgment in Mohinder Singh v. State Of Punjab 19 a two-judge bench of

the Supreme Court commuted to life sentence the death penalty awarded by

the lower courts to a man accused of raping his minor daughter and killingboth the daughter and his wife20, stating that though the crime was

‘gruesome’ and ‘grotesque’, it could not be categorized as ‘rarest of rare’,

which, of course begs the question as to whether the doctrine can indeed

ever be understood objectively. A study of the Supreme Court’s judgments

from 1950-200621 by Amnesty International and the People’s Union For Civil

Liberties disturbingly highlights that the cases in which the death penalty was

imposed are often indistinguishable from those in which it was commuted.22

III. CAPITAL PUNISHMENT FOR RAPE: LEGAL PROBLEMATICS

Regarding the question of capital punishment for rape, concerns have

also been raised by groups such as Citizens’ Collective against Sexual Assault,

Sangat23, National Alliance of People’s Movements, All India Progressive

W omen’s Association, National Forum for Single Women’s Rights, etc.24

that, as in a vast majority of cases the perpetrator is known to the victim, the

possibility of the death penalty being applied will ensure that even fewer casesare reported, as the victims will either be coerced into keeping silent or may

themselves shy away from assuming responsibility for the possible deaths of

19 1 Criminal Appeal Nos. 1278-1279 OF 201020 “Supreme Court saves from noose man who raped daughter, killed her, wife”, The Indian Express .29 Jan, 2013 URL: http://www.indianexpress.com/news/supreme-court-saves-from-noose-man-who-raped-daughter-killed-her-wife/1066129/.

21 ‘Lethal Lottery: The Death Penalty in India ’. 2008. Amnesty International and the People’s

Union for Civil Liberties.22“Alarming Vengeance”, The Telegraph. 14thMarch, 2013.23 A South Asian Feminist Network24 “Demand Justice and Equality for Women, Say NO to Death Penalty and Violence: Joint

Statement by Women’s Groups”, India Resists. December 24th, 2012

http://www.indianexpress.com/news/supreme-court-saves-from-noose-man-who-raped-daughter-killed-her-wife/1066129/http://www.indianexpress.com/news/supreme-court-saves-from-noose-man-who-raped-daughter-killed-her-wife/1066129/http://www.indianexpress.com/news/supreme-court-saves-from-noose-man-who-raped-daughter-killed-her-wife/1066129/http://www.indianexpress.com/news/supreme-court-saves-from-noose-man-who-raped-daughter-killed-her-wife/1066129/


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relatives or friends. Further, if ‘death’ is introduced as the penalty for both

rape and murder, then it would ensure that, in a low-risk, high-reward

scenario, the rapist would prefer killing his victim rather than risk the

implications of survival. The Supreme Court in various judgments includingState of Punjab v. Gurmit Singh & Ors 25 has waived the need for corroboration

of the testimony of a rape victim which seems reliable in itself; however, the

greater the punishment for a crime, the greater becomes the standard of

evidence required for conviction. Rape, as an offence, is extremely hard to

prove beyond ‘reasonable doubt’ in a court of law, as the case is usually based

on mere circumstantial evidence and lacks witnesses. Realistically, a higher

standard of evidence can only be understood as lowering the conviction rates

further, which are already abysmally low, standing at around 26% of the totalcases that make it to court26. Even now, the discretionary clause in Section

376 of the I.P.C. which allows for lowering the sentence of a rape accused

below the provided minimum of seven years for ‘adequate and special’

reasons, is made use of by various courts for biased judgments that often

consider the time elapsed since the incident, as in Baldev Singh & Ors. v. State

Of Punjab 27 , or the proposal of marriage by the rapist28, as both ‘adequate’ and

‘special’, and sometimes, grounds for acquittal altogether29. Even in State of

Punjab v. Gurmit Singh 30 , an otherwise landmark judgment because of theguidelines laid down to facilitate the understanding of the rape survivor as a

‘ victim’ rather than ‘accomplice’, the accused were sentenced to 5 years

R.I. — clearly less than the statutory minimum of 10 years for gang-rape —

taking into account that ‘they were aged between 21-24 years of age at the

time when the offence was committed [and have] not been involved in any

other offence [since]’.

25 1996 SCC (2) 38426 Source: Ministry of Home Affairs.27 AIR 2011 SC 1231. The Supreme Court reduced the sentence of the three appellants,

found guilty of committing gang rape, to the period of only about three and half years’imprisonment already undergone on the inexplicable grounds that the incident had takenplace fourteen years ago and that the perpetrators and victim had all been individuallymarried since.

28 Additional Sessions Judge of Karkardooma court, Justice J M Malik deferred his judgmentby a day and ordered the victim to reply to a proposal by the rapist to marry her,

‘Manufacturing Consent: Rape verdicts reflect social prejudice’. The Times of India 29Mumbai sessions court judge B. C. Singh acquitted Firoz Muneer Shaikh, the 25-year-old

accused in a 2003 rape case, after he agreed to marry his victim, ‘Assault ends in wedlock’.The Times of India,.5 May, 2005

30 AIR 1996 SC 1393


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entails; that is, what precisely it serves as a symbol of. Significantly enough,

most of the recent debate and scholarship on capital punishment for rape

has centred on capital punishment in itself, with the advocates and

opponents propounding the pros and cons and efficacy of such apunishment and the largely humanitarian concerns that it brings to the fore,

without interrogating the specificity of the demand or the more important

question that is implicit within it — what distinguishes rape from other non-

homicide crimes and makes it an offence deserving of the death penalty in

the eyes of society?

B. LEGAL DEVELOPMENTS IN THE UNITED STATES

Tracing the parallel developments in the law of the United States in

regard to non-homicidal rape, it is noteworthy that the trend has been the

reverse — away from the death penalty rather than towards it. In Rudolph v.

Alabama , three dissenting judges of the U.S. Supreme Court raised

contentions as to the constitutionality of a non-mandatory death penalty for

rape, questioning whether:

1.

In light of the trend, both in [United States] and throughout the

world against punishing rape by death, does the imposition of the

death penalty […] for rape violate 'evolving standards of decency’that mark the progress of [our] maturing society?

2. Is the taking of human life to protect a value other than human

life consistent with the constitutional proscription against

‘punishments which by their excessive severity are greatly

disproportioned to the offenses charged?’40

These contentions were obliquely examined in the case of Furman v.

Georgia wherein in a 5 - 4 decision of the Supreme Court, the death penalty

laws of states were effectively suspended as their discretionary application by

the authorized judges was held to be ‘arbitrary’ and ‘capricious’41. However, it

was in Coker v. Georgia that the constitutionality of the death penalty for rape

of an adult woman was challenged and the provision first abolished. It was

held that a state-sponsored death of the rape-accused is a disproportionate

punishment and hence a violation of the Eighth Amendment to the United

States Constitution, which prohibits the federal government from imposing

40 375 U.S. 889 (1963)41 408 US 238 (1972)


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cruel and unusual punishments.42 As argued by David J. Karp in his analysis

of the judgment43, two models of excess can be developed in this crime-and-

punishment scenario; firstly, the punishment for an offence may be

disproportionate because of a legally insupportable disparity between thepunishment for a particular crime and punishments for other crimes of

apparently more grave nature. And secondly, that the punishment in itself

may be disproportionate in terms of its severity as opposed to the harm

threatened or caused by the crime. Both these models were conflated in the

proceedings on rape in Coker v. Georgia , as, describing the punishment as

‘grossly disproportionate and excessive’, it was explicitly stated that the

reasoning behind the distinction developed between the case of homicide

and non-homicide rape in the judgment was that: ‘rape [… ] in terms of moraldepravity and of the injury to the person and to the public, does not compare

with murder, which involves the unjustified taking of human life. The

murderer kills; the rapist, if no more than that, does not. Life is over for the

victim of the murderer; for the rape victim, life may not be nearly as happy as

it was, but it is not over and normally is not beyond repair.’44

C. SYMBOLIC JUSTICE AND THE INDIAN JUDICIAL BURDEN

While the above judgment has been widely criticized on various

grounds including its alleged disjunction with the lived social realities of rape

victims, it combats one of the most prevalent beliefs that forms the driving

force behind the demand for capital punishment for rape: the idea that rape

is a ‘fate worse than death’. This viewpoint, which is continuously reiterated

in the present debates with various parliamentarians referring to the rape

victim(s) as a ‘zinda laash ’45, implying that a rape survivor (as pointed out by

Flavia Ages, a vocabulary shift from ‘ victim’ to ‘survivor’ is desirable)46

occupies a liminal space between the dead and the living. That this

perspective has pre-existed in the country, including the governmental

domain of the political elite, can easily be grasped by noting that in 2002, the

then Deputy Prime Minister advocated the death penalty for rape in the Lok

42 433 U.S. 584 (1977)43 Karp, David J. ‘Coker v. Georgia: Disproportionate Punishment and the Death Penalty

for Rape.’ Columbia Law Review, Vol. 78, No. 8 44 Coker v. Georgia , 433 US 584 - Supreme Court 1977, p. 59845 “Take the shame out of rape”. The Indian Express , 28 Dec 201246 Agnes, Flavia: “No Shortcuts on Rape: Make the Legal System Work”. Economic andPolitical Weekly, Vol XLVIII No. 2, pp. 12-15


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Sabha on behalf of the government47 claiming that many members were of

the opinion ‘if someone committed murder, the person was hanged. But for

rape, which was worse than murder , no such punishment is meted out to the

culprit’. In which context, the Supreme Court in State Of Uttar Pradesh v. RamSewak And Ors 48 restated that penal laws, regardless of the fact that their

deterrence factor were no guarantee in prevention of crime, which could only

be curbed by ‘change brought about in the way of life, thinking and

outlook ’.49 The judicial burden, therefore, has always been to curb the

societal need for ‘easy solutions’, wherein every once in a while a pyrrhic

victory is won by raising a particular instance of violence against women in

India and fighting an emblematic battle for justice in an individuated case,

which does not address the entrenched misogyny within the system ordemand the stricter implementation of prosaic but vital demands, like non-

tinted vehicle windows and setting up of rape trauma centres, or exclusion of

sexual behaviour evidence like the archaic two-finger test. The ‘ worse than

death’ standpoint often serves to form the rhetorical justification for the

provision of capital punishment. The implicit suggestion, within the same

model of proportionality as suggested above, is that, if rape is ‘ worse than

death’ and death warrants capital punishment, then rape, by default, warrants

the same, at the very least.

V. RAPE STATUTES: RHETORIC AND ACTUALITY

A. PARLIAMENTARY DIALOGUE

However, as is immediately obvious on analysis, this manoeuvre of

equation is purely linguistic; the metaphorical death of the rape survivor is

herein equated with the real death of a homicide victim. The so-called

‘death’ of the former is bound by the discourse of shame, wherein there

exists a correlation of family and territory with the body of the woman and

the defilement of one is taken as an attack on the other. This

conceptualization is also prevalent within war scenarios within which the

primary mode of assertion of supremacy over an enemy region is often to

‘rape their women’, as it is the woman who is associated with the male

territory, as well as the family unit, and thus, her chastity is symbolic of the

‘pride’ and ‘honour’ of the family or nation. The current demand inherently

47 “Advani favours death sentence for rapists”: The Times of India, 26 Nov 200248 AIR 2003 SC 214149 “Deterrent laws no guarantee to prevent crimes: SC”,

http://www.rediff.com/news/2002/dec/23sc.htm, last accessed on March 10, 2013

http://www.rediff.com/news/2002/dec/23sc.htmhttp://www.rediff.com/news/2002/dec/23sc.htm


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legitimises systemized sexual control of women by seeking to establish a

regulatory framework that ‘protects’ women by imposing restrictions on

their behaviour. As noted by sociologist Pratiksha Baxi, ‘the proposal to

hang the rapist is squarely located in the politics of memory, whichmanipulates public outrage, to deflect attention from those conditions

which create, normalise and sustain violence against women’.50 This image

of the protector then becomes a ‘natural’ form of social definition for the

male figure, further vindicating an excess of aggression and machismo that

the law in itself seeks to curb.

This is obvious through the contradictory dichotomy that is created

within this discourse; wherein the speech-making runs tangential to the

actuality of the situation, as is explicit within the parliamentary dialogue on

the issue. While overtly, the concern addressed is the legitimate fear of

abuse of due process of law, couched within it are misogynistic terms that

reiterate a cynical vision of rape survivors, as substantiated by statements

made within the Lok Sabha itself. For example:

‘Some girls are very clever and are the agents of police. These days it's the world of

politics, police can falsely accuse anyone it wants on charge of rape. What is the

way of saving oneself from them? You have written here that the girl's past historywill not be asked, then how will you come to know about the girl? ’51

Flavia Agnes, exploring this issue, notes that ‘the fear of ‘false

complaints’ is all pervasive within our legal system right from the time a

victim tries to register the complaint to the time of the trial’.52 The actual

implementation of graver forms of legal punishment is resisted, because it

is essentially a burden on the masculine agenda on which the rape statues

are premised; mostly created and implemented by male figures, however,

the rhetoric of death penalty consistently remains strong as in a 2002 case, in

which the then Defence Minister joined the chorus for capital punishment

for rape.53 As the statutes are not actually influenced by the grandiloquence

in the public sphere and oftentimes even the minimum prescribed penalty

for the offence is waived in individual cases, the conclusion to be drawn

from this paradox seems to be that the discourse of death penalty is a

50Baxi, Pratiksha. “Rape, Retribution, State: on Whose Bodies?” Economic and Political Weekly,

Vol. 35, No. 14 (Apr. 1-7, 2000), pp. 1196-120051 Moolchand Daga, Lok Sabha Debates,1983: 431, 21 November52 Agnes, Flavia. “No Shortcuts on Rape: Make the Legal System Work”. Economic and

Political Weekly, Vol XLVIII No. 2 53 “George Fernandes joins death-for-rapist chorus”, Sunday Observer , 1 Dec 2002.


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societal comment not on the rapist, but on the position of the rape

survivor.

B. IMPLICATIONS OF THE MARITAL RAPE EXEMPTION

This distinction from other non-homicide crimes is drawn in cases

of rape because, rather than the experience of violence, it is the taboo

sexual nature of the crime that is often highlighted. This is clearly the case

even under statutory law, as suggested by the marital exemption for rape

under section 375 of the I.P.C. This exemption can be traced back to the

seventeenth century when Lord Chief Justice Matthew Hale opined, ‘ The

husband cannot be guilty of rape committed by himself upon his lawful

wife, for by their mutual matrimonial consent and contract, the wife hathgiven up herself in this kind unto her husband, which she cannot retract’54.

According to Susan Estrich, the continued force of the marital exemption

clause is the taking to the extreme of social notions that have made all

‘simple rapes difficult to prosecute’, that is, the notions of presumed

consent made absolute.55 Indeed, the existence of an exemption is in itself

sufficient proof that the offence of rape highlights the sexual humiliation

while simultaneously erasing the violent base of the act; marital rape is not

legally culpable as it falls outside the realm of stigmatisation, falling underthe social jurisdiction of ‘accepted relationships’. The Joint Parliamentary

Committee report on the Criminal Law (Amendment) Bill, 1983, stated

that, ‘under the decree of judicial separation, there is a possibility of

reconciliation between [the husband and wife] until a decree of divorce is

granted. Hence, intercourse by the husband with his wife without her

consent during such period should not be treated as, or equated with

rape.’56 Pratiksha Baxi, in her analysis of the aforementioned report is of the

opinion that ‘clearly then the rights of the husband over the wife and the

'interests' of the patriarchal family were privileged, normalizing the wide

scale violence used by men to enforce relationships of marriage.’57

Outside of marriage, the prioritisation of the sexual integrity of the

feminine body as the sole relevant factor in the identity of the woman

herself has often led to arbitrary application of rape laws wherein

54 Gallo, Nancy R. Introduction to Family Law , pg. 13755 Estrich, Susan. Real Rape, .pg. 7256 JPC 1982:857 Baxi, Pratiksha. ‘Rape, Retribution, State: On Whose Bodies?’ , Vol. 35, No. 14 (Apr. 1 -7,

2000), pp. 1196-1200


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conviction of the perpetrator is contingent upon the perceived manner and

attitude of the victim, as in case of the Mathura judgment58 or the equally

infamous Suryanelli rape case59 wherein the Kerala High Court’s acquittal of

the 35 accused was based on the assumption that the victim's statementscould not be taken at the face value, because, in attempting to mortgage

ornaments earlier, she had shown ‘deviant behaviour’ and the gang-rape

was described as the ‘ willing journey of a misguided girl’.60 As argued by

David J. Giacopassi and Karen R. Wilkinson, there now exist ‘degrees of

rape’ and, for all practical purposes, a woman can be raped ‘a little’.61 This is

because the important determining criterion of the offence is no longer

solely non-consent, which is an absolute, but often other ‘mitigating ’ factors

are taken into consideration to adjudge the culpability of the accused; thedegree of force used to overcome resistance and cause injury, the manner

of dress and style of the victim, etc. This subtle but important shift places

less value on the right to withhold consent, while elevating to a principle of

law the obligation of the female to place herself in jeopardy by resisting to

the point of injury before the courts will recognise a ‘serious case of rape.’

VI. HIERARCHIZATION AND CREATION OF THE ‘IDEAL VICTIM’

A.

SOCIAL NORMS AND RAPE CULTURE

In the on-going public debate, hierarchies have been created in rape

cases for determining the degree of justice that is ‘deserved’ by certain

victims. The entire gamut of rape culture and victim-blaming has been

ranged and everything stated from the ‘the rape of a grown-up woman is

understandable; but rape of a minor is a heinous crime’62 to ‘your child

doesn't seem to be suffering that much,’ (in the recent case of the alleged

rape of a seven-year-old in a school toilet in Goa).63

The demand for capitalpunishment is premised on a similar construction of the ‘ideal victim’. Such

a victim is also the ‘ideal’ woman according to social norms and Victorian

models of chastity and the one whose violation is most deserving of justice.

58 Tuka Ram and Anr vs State of Maharashtra AIR 1979 SC 18559 Joseph@Baby v.S.I. Of Police , CRL A No. 590 of 2000 (B)60 ‘A R ehearing in Kerala.’Frontline. . Vol. 30.No. 04. 61Giacopassi, David J.; Wilkinson, Karen R. ‘Rape and the Devalued Victim. ’ Law and Human

Behavior, Vol. 9, No. 4 (Dec., 1985), pp. 367-38362“Rape of Grown-up Girls May Be Understandable but Assault on Infants Heinous”, Indian Express . N.p., 10 Jan. 2013.

63“Goa Rape Case: Chief Minister Directs Cops to Act against Official”, NDTV . N.p., 19th Jan. 2013.


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This concept has been examined by Ann Cahill wherein she notes64 ‘it is in

the specific moments and movements of this [feminine] body [that] the

defence of the sexual offender [is written]: she was somewhere she should

not have been, moving her body in ways that she should not have’. Thesefactors are often viewed as extenuating rape, as society places the burden of

self-surveillance on the woman, to be able to either ‘avoid being raped’ or,

at the very least, function as an ‘ideal victim’ and ask for justice in case of a

sexual offence against her.

This oratorical construction has real implications in the context of

legal credibility of rape victims, which is one of the essential elements in

eliminating the need for corroboration of their testimony. The fringe

minorities, including wives, sex workers, etc., do not form a part of this

central discourse, as they are often seen as deserving of the violence they

experience, or at the very least, outside the domain of the law. Corollaries

to the discourse of capital punishment are often added, which place the

burden of receiving justice on the victims themselves; the district

government pleader in the matter of the aforementioned 2002 gang rape

case stressed that capital punishment for rape should be awarded ‘only if

the victim is not in a position to fight back and defend herself ’.65 This

derives from archaic notions of feminine selfhood as being defined through

‘chastity ’ wherein it is popularly believed that a ‘good’ woman, applying an

absolute moral categorization, would rather die than be raped. This

interpretation of femininity not only adds to the notion of rape as worse

than death, but also plays a role in socially shaming the rape survivors, who

are them understood as not placing the same valuation on their sexual

integrity, as the rational conclusion of the above premise is that a ‘decent’

woman would have resisted the rapist, even to the point of death. Arelatively greater burden of proof is imposed on the conduct of the victim.

In the United States, this was typified in Mills v. United States, wherein it was

made explicit that ‘in the ordinary case where the woman is awake, of

mature years, of sound mind and not in fear, a failure to oppose the carnal

act is consent; and though she object verbally, if she make no outcry and no

resistance, she by her conduct consents, and the act is not rape’.66 While the

same perspective is no longer made explicit, the judgment in Tukaram v.

64 Cahill, Ann J. ‘Foucault, Rape, and the Construction of the Feminine Body .’ Hypatia, Vol.15, No. 1

65 “Legal experts split over death rap for rapists” - TNN 28th Nov, 2002, 09.36pm IST66 164 U.S. 644 (1897)


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State of Maharashtra 67 , or even the subsequent Supreme Court warnings to

the lower courts to not insist on corroboration of the victim’s testimonies

logically implies that courts often have the tendency to do so.

B.

WORSE THAN DEATH PERCEPTION

However, the ‘ worse than death’ perception on which the discourse

of capital punishment is premised sends a far more distorted message to

rape survivors. As argued cogently by Corey Rayburn in his analysis of the

patriarchal rhetoric driving capital rape statutes:

‘The evidence is clear and is echoed by those who support the death penalty for

rape: being raped increases the rates of suicide for children and adults. Why then,

against what these advocates ‘know,’ do they invoke rhetoric that makes death a preferred option for those who have been raped? The most pernicious message

conveyed by comparisons to death is that those who have been raped have no

reason to live. If death is truly the lesser of two evils, why would someone hesitate

to embrace it as an escape from the horrific experience of rape? Such rational-

choice type evaluation may seem out of place in discussing the impact of rape and

the decision to commit suicide, but given that those invoking it are wedded to

deterrence theories that rely on the same premises, it seems a horrific oversight not

to consider the signals sent to women and children.68

Even apart from the burden of ‘proving ’ a case of rape, rape

survivors often function within a system that alienates them and inherently

views them as ‘dead’, implicitly suggesting that they should either have died

during the course of the rape while protecting their modesty, or have no

further reason to live. Far worse, these insidious communications are made

under the blanket idealization of providing justice to the victims through

imposition of harsher penalties on their perpetrators. ‘Death’ hereinfunctions as a social death, that is, it is not defined as an individual experience

that aims to substantiate and delineate the trauma of a rape survivor, but

rather as their collective ostracism. This expression operates as the

justification of the attempts of a society to obliterate the narrative of violence

that it allows against its female citizens.

67 AIR 1979 SC 18568 Rayburn, Corey. ‘Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Rape

Statutes.’ St. Johns Law Review, Vol. 78, No. 4


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VII. CONCLUSION

The rationale of the early laws which provided for death sentence

for rape dealt not with concerns of the bodily autonomy of women, but

rather, was understood as property crimes against the sexual exclusivity of aman to his wife. Even today, in societies that increasingly aim for

egalitarianism as the fundamental base of Constitutional authorities, the

patriarchal foundation of the statutes, as well as societal demands for

further amendments, expose the same attitudes couched in pleasing,

postmodern legal terms. Revealingly, most of the countries that currently

authorize the death penalty for rape69 are also the ones that historically and

globally have been condemned as being the most restrictive and indifferent

to the rights of women in general. The death rhetoric legitimises victim

blaming and normalizes the need for sexual surveillance and moral policing

of the body of the woman; in a State of the Nation survey on the safety of

women as part of CNN-IBN's Agenda for Change , the majority said that a

rape victim is ruined for life and that women should abide by a certain dress

code in public.70 The recent suggestions for the prevention of rape have

focused on gendered separation in public life and curbing the subversive

sexuality of women, which has historically been viewed as a threat to

masculine domination. However, following the Delhi gang-rape case and

the consequent public outrage and outpourings, many hitherto marginalized

victim narratives have, for the first time, made their way into the fold of the

mainstream, wherein the survivors have elucidated that they may have been

raped but are not dead, and refuse to let themselves be defined by a single

act of violence.71

That the death penalty, even if provided for within statute, will

neither act as a deterrent to rape itself or actually be implemented in a courtof law for non-homicide cases of rape is practically indisputable. However,

it is not only the legal changes envisioned, but the cultural discourse that

informs those changes which provides a glimpse into the legal system; as,

law after all, primarily serves as a means of regulating social interaction.

Theories of deterrence and retribution are based on the hypothesis of dis-

incentivization of offences, as the practical origin of the theoretical models

69 Some examples include Iran, Egypt, Pakistan, Saudi Arabia, Vietnam, etc.70 “Rape victims are ruined for life, women should abide by a dress code in public, feels

India”: CNN-IBN. 24 Jan 2013.71 Abdulali, Sohaila. ‘I Was Wounded; My Honor Wasn’t’. The New York Times.7 Jan 2013.


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is that if the punishments meted out were equivalent, the offender would

have no incentive to commit the lesser crime than the greater. In this

context, if the heated demand for capital punishment is any indication, it is

unfortunate that even today, in the rape-murder scenario; the greater of thetwo crimes is believed to be rape and the rape survivors socially informed

that they would have been better off dead.


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Delhi.3 These children were allegedly raped and murdered, causing a huge

public outcry which brought out the lackadaisical attitude of the government

towards rampant child abuse. This pressurized the Ministry of Women and

Child Development to expeditiously draft the Offences from Children(Prevention) Bill, 2005 and lobby hard for its passage. In 2012, the

Parliament finally passed the Protection of Children from Sexual Offences

Act which has been hailed as a bold step towards protecting the children of

our country.

II. PROVISIONS HITHERTO

Indian children, who account for an overwhelming forty per cent4 of

the entire population of the country, have, until recently, been placed in astate of extreme vulnerability due to the indifference of the Legislature. The

lack of legal framework protecting children has only encouraged sexual

predators. One of the problems is that under the Indian legal system the

definition of 'a child' differs from law to law. Irrespective of the various

definitions however, there lies a mandatory obligation of Centre and State to

provide for and protect children. The Constitution of India under Article

21A says that States must provide free and compulsory education to all

children between the ages of six and fourteen in such manner as the State

may by law determine. Article 45 of the Constitution specifies that the State

shall endeavour to provide early childhood care and education for all children

until they complete the age of six. Article 51(k) lays down a duty that parents

or guardians provide opportunities for education to their child/ward between

the age of six and fourteen years.

The Indian Penal Code states that nothing is an offence done by a

child under seven years, and further, under twelve years, till he has attainedsufficient maturity of understanding as regards the nature of the Act and the

consequences of his conduct thereof.5 However, while punishing the

perpetrators of rape, the Code defines the age of consent to be below sixteen

3 Neelam Raaj, “Children at Risk” (14 Jan 2007), http://articles.timesofindia.indiatimes.com

/2007-01-14/special-report/27872204_1_nithari-migrants-crime-stats (last visited on 1

Sep 2012).4 Government of India, Ministry of Home Affairs, Office of the Registrar General & Census

Commissioner, India, 2001 Census Data, Age Structure and Martial Status ,

http://censusindia.gov.in/Census_And_You/age_structure_and_marital_status.aspx (last

visited on 17 March 2013)5 PEN.CODE.§§ 82 and 83.


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penetration, its high bench mark of the word 'penetration' leaves several

forms of abuse like molestation and penetration with objects unaddressed.

Unfortunately, such grave and rampant form of abuse can only be

prosecuted in the case of girls under the provision of the Code dealing with‘outraging the modesty of women.’11 However, the Supreme Court’s

interpretation of what constitutes ‘modesty of women’ has rendered this

provision inadequate as it states that children may find themselves incapable

of possessing this modesty.12 Furthermore, in cases of child abuse prosecuted

under section 354, the quantum of punishment is reduced to two years as

opposed to a minimum of seven years in the case of rape. Therefore, sexual

abuse in cases of boys and girls can only be prosecuted under simple or

grievous hurt13

which is extremely ineffective to address the offences of suchnature. The law treats instances of obscene gestures14 with relatively less

gravity, even though it may affect the child's psyche as severely as rape.

Similarly, the law is ill equipped to deal with instances of repeated abuse

against children.

In spite of the absence of legal mechanisms, the Supreme Court was

able to deliver justice in the Anchorage case .15 Anchorage Shelter was a home

for street children run by two retired British Navy Officers in Mumbai. In

2001, Childline India Foundation16, an emergency outreach service for

children in need of protection, received a call regarding abuse of children at

the shelter.17 After investigating the matter it was found that Duncan Grant,

Allan Waters and William D'Souza and the manager of the shelter were

inflicting chronic abuse upon their charges. After further investigation, the

three accused were charged when Waters and Duncan were found to be

absconding. To commence the trial, Grant had to be extradited from Africa

and Waters from the United States. The Sessions Court, after depositions were made by f our prime witnesses, convicted D’Souza, Duncan and Waters

11 PEN.CODE. § 354.12 State of Punjab v. Major Singh , AIR 1967 SC 63 (The judges of the Supreme Court decided

that a seven and a half year old girl did not possess the modesty that could be outraged).13 PEN.CODE.§§ 319, 320.14 PEN.CODE. § 509.15 Childline India Foundation v. Allan John Waters & Ors , (2011) 6 SCC 26116 Childline India, Anchorage Case History, http://www.childlineindia.org.in/anchorage-

case-history-updated.htm( last visited Oct. 27, 2012).17 Childline India Foundation v. Allan John Waters & Ors, (2011) 6 SCC 261.

http://www.childlineindia.org.in/anchorage-%20case-history-updated.htmhttp://www.childlineindia.org.in/anchorage-%20case-history-updated.htmhttp://www.childlineindia.org.in/anchorage-%20case-history-updated.htmhttp://www.childlineindia.org.in/anchorage-%20case-history-updated.htm


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for offences punishable under unnatural offences against man18, abetment19,

criminal conspiracy 20, voluntarily causing hurt21, selling 22 and buying 23 minors

for prostitution and for subjecting children to cruelty 24.

An appeal was sought by the accused. The State Government alsofiled an appeal for enhancement of punishment. However, the High Court

set aside the conviction on grounds that the depositions were ‘suspicious,

unreliable, not proved beyond shadow of doubt and not creditworthy ’.

Furthermore, it declared the statements of the prime witnesses inadmissible.

However, the Supreme Court adjudicated that the evidence and omissions

were not fatal to the prosecution's case as stated by the High Court as the

depositions clearly established rampant abuse. Corroborative evidence is also

not mandatory in cases of a sensitive nature and the testimony of the victims

makes for a stronger case. Lastly, the court, in the absence of any law

specifically protecting children from sexual abuse, drew reference from the

constitution which envisages a childhood free from any abuse and

exploitation. It mandates that the states make special provisions for children25

provide them with free and compulsory education26 and prohibits trafficking,

beggary and other forms of forced labour and exploitation27. It also relied on

the Directive Principle of securing health of children of a tender age28 to

uphold the convictions.

In Prerana v State of Maharashtra ,29 the Bombay High Court slammed

the Juvenile Justice Board for its gross errors and inefficiency in protecting

and upholding the rights of children and laid down guidelines to make the

functioning more effective. Prerana, the petitioner, is a non-governmental

organisation that works with the aim objective of preventing trafficking of

women and children. It also rehabilitates victims of forced prostitution in

18 PEN.CODE. § 377.19 PEN.CODE. § 109.20 PEN.CODE.§ 120B.21 PEN.CODE. § 323.22 PEN.CODE. § 372.23 PEN.CODE. § 373.24 Juvenile Justice (Care and Protection of Children) Act, 2000, § 23.25 INDIA CONST. art.15, cl. 3.. 26 INDIA CONST. art.21-A..27 INDIA CONST. art.23..28 INDIA CONST. art.45.29 Prerana v State of Maharashtra , 2003 2 MLJ 105.


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Mumbai. In the present case, the Social Service Branch raided a brothel

where four persons identified as brothel keepers were arrested and 24 twenty

four girls were rescued. The four arrested were charged for allowing the use

of the premises as a brothel

30

, for living on earnings from prostitution

31

and,permitting prostitution on the premises for the purpose of trade32 while the

twenty four females girls that were taken into custody pursuant to the

provisions33 of the Immoral Traffic (Prevention) Act, 1956 to ascertain their

age and family background. The results of the ossification test showed that

fourteen of the girls were adults while the rest of them were minors. The

court released the adults and directed the minors to appear in the Juvenile

Court. The Magistrate finally discharged the minor girls on the grounds that

they had not committed any offence, but and they were in custody for over amonth. It is pertinent to note here that firstly, minor girls who were forced

into the flesh trade were treated as the accused in spite of there being no

fault of their own. Under the Juvenile Justice Act, a juvenile who is found

soliciting can be classified as a ‘‘juvenile in conflict with law’’34 as well as a

‘‘child in need of care and protection’’35 and thus cannot be treated as the

accused. Secondly, since they were children ‘‘in conflict with the law’’, they

should have ideally been produced before the Child Welfare Committee and

not the Juvenile Board. And thirdly, the Juvenile Board committed a seriouserror by releasing the minors; as the provisions of the Juvenile Justice Act

clearly state that minors must be sent to protective homes in the absence of

parents or guardians. By releasing them, the Juvenile Board has driven them

back to the flesh trade. In the Anchorage Case 36 , the Court relied on the

Constitutional obligations and the Directive Principles to emphasize that

children have to be protected and have a right to a free, healthy and an

abuse- free childhood.

The first legislation for the protection of children against abuse came

in the form of the Goa Children’s Act of 2003. It adhered to the United

Nations Conventions on the Rights of the Child. The Act criminalized child

abuse and meted out punishments for sexual assault, grave sexual assault and

30 Immoral Traffic (Prevention) Act, 1956, § 3.31 Immoral Traffic (Prevention) Act, 1956, § 4.32 Immoral Traffic (Prevention) Act, 1956, § 7(2)(a).33 Immoral Traffic (Prevention) Act, 1956, § 15, 17.34 Juvenile Justice (Care and Protection of Children) Act, 2000, § 2(1).35 Juvenile Justice (Care and Protection of Children) Act, 2000, § 2(d)(vi).36 Supra note 16.


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incest.37 It prohibits soliciting children for commercial exploitation in the

form of pornography or suggestive and obscene photographs.38 The act has

an all-encompassing definition of ‘commercial sexual exploitation of

children’ as it includes ‘all forms of sexual exploitation of a child including visual depiction of a child engaged in explicit sexual conduct, real or

stimulated, or the lewd exhibition of genitals intended for sexual gratification

of the user, done with a commercial purpose, whether for money or kind.’39

In 2005, the definition of ‘grave sexual assault’ in the Act was amended40 to

include acts such as causing children to pose for pornographic photos and

films, forcing minors to have sex with each other, deliberately causing injury

to sexual organs of children, etc. Lastly, it laid responsibility on the Airport

authorities, border police, railway police, traffic police and developers ofmovies and photos to report any inappropriate depiction of children in print

media or suspicion of trafficking 41. Another initiation taken up by the Goa

Police was the drafting of a Child Code.42 This Code laid down several

guidelines on adopting child-friendly procedures due to the sensitivity of the

issue. Among other things, the Code included establishing child-friendly

police stations, prohibiting minors below fourteen from entering or using

cyber cafés unaccompanied, non-stigmatising semantics and the principle of

best interest. However, in spite of these legislations, several perpetrators ofpaedophilic abuse have been acquitted due to lack of evidence.

Similarly, the Commission for Protection of Child Rights Act 2005

was a national legislation that put forth the constitution of children's courts

in states and districts to ensure expeditious trial for offences against

children.43 The Karnataka Government also implemented the Karnataka

Devadasis (Prohibition of Dedication) Act, 1982 and Rules, 1987 to put an

end to the devadasi system by penalizing those who encourage it. The

37 Goa Children’s Act, 2003, § 8(1)-(3).38 Goa Children’s Act, 2003, § 8(15)-(3).39 Goa Children’s Act, 2003, § 2(jj). 40 Goa Children’s (Amendment) Act, 2005. 41 Goa Children’s Act, 2003, § 7(9). 42 Goa Children’s Act, 2003, § 13(14). 43 Mathew A. Lina,, ‘Online Child Safety from Sexual Abuse in India , 2009(1)’ Journal of

Information, Law & Technology (JILT) (May 28, 2009), http://go.warwick.ac.uk /jilt /

2009_1 / mathew (last visited on 27 Oct 2012).


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legislation also arranged facilities for the rehabilitation of innocent victims.44

However, these laws were still insufficient to curb the menace of child sexual

abuse. The following section will address concerns as to why perpetrators

can slip through the net of these protective legislations. It will also carve outthe need for a separate legislation.

III.

NEED FOR A SEPARATE LEGISLATION

There has been extensive debate on whether the Indian Penal code

should be amended to include perpetrators or whether a separate law should

be drawn up to specifically address child sexual abuse. Child rights activists

have been pushing for a separate law to combat child sexual abuse, insistingthat it is the need of the hour`. In the case of Sakshi v Union of India 45, a step

forward was taken to examine shortcomings of the Indian Penal Code when

dealing with cases of this nature. However, the Court did not adequately

address the entire breadth of issues, thereby failing yet again to effectively

insulate children in India from sexual abuse.

The Supreme Court’s timely acknowledgement of the prevalence of

child sexual abuse in India and its alarming increase only increases the

necessity of creating and enforcing laws that protect children. In 2005, a bill

specifically protecting the rights of children against this menace was drawn

up while drafting the ‘Offences Against Children’ Bill. This bill was drafted

and approved by the National Commission for Women (NCW) and the

Ministry of Women and Child Development. The bill sought to deal with a

spectrum of offences against children including sale/transfer sexual assault,

sexual/physical/emotional abuse, commercial sexual exploitation, child

pornography, grooming for sexual purpose, incest, corporal punishment,

bullying and economic exploitation.46 Furthermore, the bill made it clear that

these provisions were formulated to supplement the provisions and address

the shortcomings of the Indian Penal Code and the Juvenile Justice Act.

However, in 2007 the Ministry of Law rejected the Bill, stating that there was

no need for a separate legislation and that it would be repetitive of the

provisions of the Penal Code, Code of Criminal Procedure and the Indian

44 N.D. Shiva Kumar, Times of India (23 Jan 2009) http://articles.timesofindia.indiatimes.com

/2009-01-23/hubli/28030078_1_devadasi-system-ddpos-project-officer (last visited on 5

Sept 2012).45 Sakshi v Union of India , [2004] 3 LRI 242. 46 Offences Against Children (Prevention) Bill, 2005.


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Evidence Act.47 This was primarily due to the lack of sufficient conclusive data

reporting instances of child abuse.48 While the National Crime Records

Bureau reported a significant increase in sexual offences against children that

included rape and trafficking of minor girls, it constituted only a negligentpercentage of the total crimes committed against children.49 However, it did

acknowledge the requirement of laws protecting children.50 It is extremely

unfortunate how legislative lethargy is becoming the root cause51 of the

under-reported nature of crimes against children and cognisance not being

taken thereof. The Ministry of Women and Child Development in 2007

initiated a National Study on Child Abuse to understand the extent and

magnitude of the problem. In 2009 the Ministry of Law prepared a tentative

draft of the Protection of Children from Sexual Assault Bill, 2010. This Bill was unique as it stated that the onus of proving their innocence rested on the

accused, unlike the existing legislation where the onus lay on the

prosecution’s ability to prove guilt. The Ministry of Law simultaneously

worked on the draft of the Prevention of Offences Against the Child Bill,

2009, which sought to address all offences against children, including sexual

offences. However, after several delays and complications in 2011, a specific

bill for prevention of sexual abuse against children was drafted

comprehensively and exhaustively under the initiation of the TULIR Centrefor the Prevention and Healing of Child Sexual Abuse which was finally

passed by the Rajya Sabha in 2011.52 This bill is now known as the Protection

of Children from Sexual Offences Act, 2012 (Hereinafter referred to as the

Act).

47Chetan Chauhan, Ministry Rejects Bill for Child Protection (4 Sept 2007)

http://www.hindustantimes.com/News-Feed/India/Ministry-rejects-bill-for-child-

protection/Article1246151.aspx (last visited on 1 Oct 2012).48Ministry of Women and Child Development, Study on Child Abuse INDIA 2007,

wcd.nic.in/childabuse.pdf(last visited on Oct. 27, 2012).49 Id. 50 Id. 51Havovi Wadia, The Sounds of Silence: Child Sexual Abuse in India,

http://infochangeindia.org/children/analysis/the-sounds-of-silence-child-sexual-abuse-in-

india.html (last visited 27 Oct 2012).52 Id.

http://www.hindustantimes.com/News-Feed/India/Ministry-rejects-bill-for-child-protection/Article1246151.aspxhttp://www.hindustantimes.com/News-Feed/India/Ministry-rejects-bill-for-child-protection/Article1246151.aspxhttp://infochangeindia.org/children/analysis/the-sounds-of-silence-child-sexual-abuse-in-india.htmlhttp://infochangeindia.org/children/analysis/the-sounds-of-silence-child-sexual-abuse-in-india.htmlhttp://infochangeindia.org/children/analysis/the-sounds-of-silence-child-sexual-abuse-in-india.htmlhttp://infochangeindia.org/children/analysis/the-sounds-of-silence-child-sexual-abuse-in-india.htmlhttp://www.hindustantimes.com/News-Feed/India/Ministry-rejects-bill-for-child-protection/Article1246151.aspxhttp://www.hindustantimes.com/News-Feed/India/Ministry-rejects-bill-for-child-protection/Article1246151.aspx


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IV. PROVISIONS OF THE ACT

This legislation is in response to the increasing instances of grave

sexual offences against children and low rates of conviction for the same. Itseeks to safeguard children from heinous offences of sexual assault, sexual

harassment, human trafficking and pornography.53 This is the first legislation

in the country that deals specifically with offences against children and clearly

defines them. It includes within its purview the abuse of boys as well as

girls.54 The penalties for offences under this Act have been classified as per

the gravity of the offence, ranging from simple to rigorous imprisonment of

several years. The Court can also impose an additional fine on the

perpetrator.55

The Act also penalizes the attempt to commit an offence andthe abetment of an offence.56

The Act has made a distinction between sexual assault and aggravated

sexual assault, the penalty for the latter being more stringent.57 An offence is

treated as ‘aggravated’ when it is committed by a person who holds a position

of trust or authority in the eyes of the child, such as a member of security

forces, police officer, public servant, etc.

The burden of proof for offences such as ‘Penetrative Sexual

Assault,’ ‘Aggravated Penetrative Sexual Assault,’ ‘Sexual Assault’ and

‘Aggravated Sexual Assault,’ has been shifted on the accused.58 This has been

done keeping in mind the greater vulnerability of children and the heinous

nature of the offences.59 Concurrently, the Act also provides for punishment

for making a false complaint or giving false information with malicious

53 Ministry of Women and Child Development, The Protection of Children from Sexual

Offences Act, 2012 (22 May 2012), http://pib.nic.in/newsite/erelease.aspx?relid=84409

(last visited on 21 Aug 2012)54 The Protection of Children from Sexual Offences Act, 2012, § 2 (1) (d).55 The Protection of Children from Sexual Offences Act, 2012, § 4, 6, 8, 10, 12, 14, 18, 21,

22, 23.56 The Protection of Children from Sexual Offences Act, 2012, § 16, 17, 18.57 The Protection of Children from Sexual Offences Act, 2012, § 7, 9.58 Ministry of Women and Child Development, The Protection of Children from Sexual

Offences Act, 2012 (22 May 2012), http://pib.nic.in/newsite/erelease.aspx?relid=84409

(last visited on 5 Aug 2012)59 Id.

http://pib.nic.in/newsite/erelease.aspx?relid=84409http://pib.nic.in/newsite/erelease.aspx?relid=84409http://pib.nic.in/newsite/erelease.aspx?relid=84409http://pib.nic.in/newsite/erelease.aspx?relid=84409


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intent.60 However, the degree of punishment has been kept relatively low (six

months) to encourage reportage of crimes.

The Act has dropped the ‘age of consent’ (16-18 years) clause and

labels any person below the age of 18 as a ‘minor’.61 This was done after acontroversial recommendation of a parliamentary committee on the pretext

of uniformity of laws (under the IPC and the Prohibition of Child Marriage

Act, a person below 18 is considered a minor).62 This effectively means that

any sexual interaction with a person below 18 years of age would constitute

an offence if a complaint is filed, or if it is discovered.

The Act specifies the establishment of Special Courts for trial of the

listed offences, keeping the interest of the child paramount at every stage ofthe process by incorporating child-friendly procedures for reporting,

recording of evidence, investigation and trial of offences.63 The evidence of

the child has to be recorded within 30 days of reporting and as far as

possible; the trial has to conclude within a year. It also makes provisions for

the relief and rehabilitation of the child. Once a complaint is lodged at the

nearest Special Juvenile Police Unit (SJPU) or local police, the police is

required to make special arrangements for the child such as admitting the

child into a shelter home or to the nearest hospital within twenty-four hours. They also have to report the matter to the Child Welfare Committee within

the same time frame. While reporting, the media cannot disclose the identity

of the child without taking prior permission from the Special Court.64

The National Commission for the Protection of Child Rights

(NCPCR) and State Commissions for the Protection of Child Rights

(SCPCRs) have been made the designated authorities to monitor the

implementation of the Act.65

60 The Protection of Children from Sexual Offences Act, 2012, § 22.61 The Protection of Children from Sexual Offences Act, 2012, § 2 (1)(d).62 Ministry of Women and Child Development, The Protection of Children from Sexual

Offences Act, 2012 (May 22, 2012), http://pib.nic.in/newsite/erelease.aspx?relid=84409

(last visited on 5 Aug 2012).63 The Protection of Children from Sexual Offences Act, 2012, Chapter VII.64 The Protection of Children from Sexual Offences Act, 2012, § 23.65 Ministry of Women and Child Development, The Protection of Children from Sexual

Offences Act, 2012 (May 22, 2012), http://pib.nic.in/newsite/erelease.aspx?relid=84409

(last visited on 5 Aug 2012).

http://pib.nic.in/newsite/erelease.aspx?relid=84409http://pib.nic.in/newsite/erelease.aspx?relid=84409http://pib.nic.in/newsite/erelease.aspx?relid=84409http://pib.nic.in/newsite/erelease.aspx?relid=84409


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V. A CRITIQUE

The IPC does not take into account the range of sexual offences

committed on children and does not differentiate effectively between anadult and a child. Also, it does not address sexual violence against the male

child except under Section 377 that criminalizes homosexual behaviour. The

present Act has the potential to instil hope in many child victims of abuse

who have been denied justice due to the loose ends in penal laws. The Act is

progressive in its approach. It is gender-neutral and lays down stringent

punishments for a range of sexual offences. It has introduced several

measures to prevent the re-victimization of children at every step of the

judicial process. It sets out provisions for the rehabilitation of these children.However, there are several provisions in the Act that continue to serve as

causes for concern.

A. NO PREVENTIVE MEASURES

Overall, the Act does a fine job in dealing with cases of child sexual

abuse. However, nowhere does the Act mention provisions to prevent

abuse.66 The Act only lays down measures to be taken after the child has

suffered sexual abuse. It should certainly include provisions for prevention as well, since punishment should never be the sole deterrent.67 In cases of child

abuse, prevention is certainly the best cure. Preventive measures should see

efforts from both family members and the state machinery.

A possible preventive measure can be the setting up of a website

which has details of first time offenders.68 Studies indicate that in most cases,

a perpetrator does not stop after abusing one child.69 This website will ensure

that such deviants are not hired by any school, universities, hospitals and

places where children traditionally assemble in large numbers.70

66 Jose Parapully, ‘Questions of Protection’ (14 August 2012),

http://www.telegraphindia.com/1120814/jsp/opinion/story_15851586.jsp#.UIazp2CpSn

M (last visited on 6 Sep 2012).67 Id. 68Pinky Virani, Child Sex Abuse and the Law (23 Jul 2011),

http://www.openthemagazine.com/article/nation/child-sex-abuse-and-the-law (last

visited on 6 Sept 2012).69 Id. 70 Id.

http://www.telegraphindia.com/1120814/jsp/opinion/story_15851586.jsp#.UIazp2CpSnMhttp://www.telegraphindia.com/1120814/jsp/opinion/story_15851586.jsp#.UIazp2CpSnMhttp://www.openthemagazine.com/article/nation/child-sex-abuse-and-the-lawhttp://www.openthemagazine.com/article/nation/child-sex-abuse-and-the-lawhttp://www.telegraphindia.com/1120814/jsp/opinion/story_15851586.jsp#.UIazp2CpSnMhttp://www.telegraphindia.com/1120814/jsp/opinion/story_15851586.jsp#.UIazp2CpSnM


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Also, the Human Resource Development Ministry must develop and

introduce modules on sex education at the primary, secondary and senior

secondary level.71 The content of these manuals should include user-friendly

guidelines on identifying signs of child abuse and protection from the same,and be upgraded with every successive class. This should also be

accompanied by teachers holding interactive sessions, where parents can also

participate.72

B. AGE OF CONSENT

Raising the age of consent for sex from 16 to 18 is definitely a step

back. A study conducted by the International Institute for Population Studies

(IIPS) and Population Council in 2010 in six states - Andhra Pradesh, Bihar, Jharkhand, Maharashtra, Rajasthan and Tamil Nadu - on youth between the

ages of 15 to 21 years revealed that instances of pre-marital relationships

amongst those above 16 years is higher than ever before.73 There was a

definite progression in reported physical intimacy and sexual experience with

romantic partners: 42 per cent of young men had indulged in consensual

sexual activity with their partners, while 26 percent of young women had

engaged in se

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