Haryana Lawyer Informs PMO of a Major Flaw in the Post Nirbhaya Case Rape Laws

Though the word “rigorous” wasn’t there in the draft, it made its way into the final ordinance along with “either description” despite both terms being contradictory.

Protesters hold a sign as they participate in a demonstration to mourn the death of Nirbhaya in Mumbai in December 29, 2012. Credit: Reuters/Vivek Prakash

New Delhi: A major flaw relating to 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, which was promulgated in the wake of the brutal Nirbhaya gangrape case, has been pointed out by a Haryana-based advocate-journalist in a grievance sent to the Prime Minister’s Office (PMO).

In his complaint, received at the PMO on February 6, Hemant Kumar has 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 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 noted that the discrepancy existed.

Kumar said 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 said 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 has now urged the ruling dispensation to rectify this anomaly at the earliest.

In his complaint, the lawyer-journalist has also mentioned that it has now been five years 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 now 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 exist, Kumar had sought its urgent rectification.

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