Government to add death penalty for rape of boys under 12

“We are in the process of sending the proposal to all stakeholder ministries including law for consultation after which we will go to the cabinet,” the second official said.

Sections 4, 5 and 6 deal with aggravated penetrative sexual assault on children under 18 years, which is currently punishable with up to 10 years in jail, extendable to life imprisonment, under the POCSO Act.

One of the officials said that the ordinance that was promulgated on April 22 has to be approved by the Parliament within six weeks of reassembling, failing which it will cease to be functional. “By the time the Parliament reconvenes and the ordinance is approved and made into a law, we will try to get the POCSO amendments approved by the Cabinet and make them part of the common law,” he added.

Asked why similar punishment for sexual offences committed against minor boys was not part of the April 22 ordinance, the first official said, “Ordinances are temporary laws and are brought in as a response to extraordinary situation that required immediate intervention. In the present case it came in the aftermath of the brutal rape of an eight-year- old girl in Kathua district of Jammu & Kashmir.”

But legal experts said the Criminal Law (amendment) ordinance was “constitutionally unsound” and “legally questionable.”

“Article 14 & 16 of the Constitution provides for equality before law. One cannot differentiate between genders. The ordinance does not reflect equality of sexes. How can you have different punishment for male and female child when it comes to heinous crimes,” said Anil Malhotra, a family law practitioner.

Malhotra was part of the special investigation team constituted by the Punjab and Haryana High Court in 2012 to inquire into allegations of rampant sexual abuse of minors at Apna Ghar, a childrens’ home in Rohtak, Haryana.

“In the course of our investigation, we had come across several cases where minor boys were sexually abused by the accused who ran the children home. The boys were as traumatised as the girls. Having different punishment based on gender is legally untenable in such a scenario,” Malhotra said.

LEGAL EXPERTS HAVE SAID THE CRIMINAL LAW (AMENDMENT) ORDINANCE WAS CONSTITUTIONALLY UNSOUND & LEGALLY QUESTIONABLE