The recent 2018 amendments to Indian Penal Code, Code of Criminal Procedure and  Protection of Children from Sexual Offences Act, 2012, by way of Criminal Laws (Amendment) Ordinance, 2018 (CLO 2018) was hastily introduced by the Central Government in response to the widespread protests after the Kathua and Unnao rape cases among others.

ApneAap Women Worldwide, an anti-sex trafficking organization working in brothels, red light districts, and caste-ghettos, has challenged the constitutionality of the Criminal Law (Amendment) Ordinance 2018 and contended that it lacks application of mind, is unconstitutional, and completely disregards established and accepted recommendations of the Justice Verma Committee with respect to the utility of the death penalty.

The matter was listed and heard on the 1st of June 2018 before the Bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar, which decided to issue a notice to the Central Government and direct it to file its response by the 31st of July, 2018.

The Petitioners have challenged the constitutionality of the CLO 2018 on multiple grounds including but not limited to the increase in mandatory punishment for rape under Section 376 IPC from seven to ten years without any rational nexus for the same, the gender-based discrimination in investigation period and punishment as amended by the CLO 2018, which is contrary to the gender-neutral provisions of POSCO.

The Petition (copy available below) also contends that it is the certainty of punishment and not the severity of the punishment which acts as a deterrent to crime.

It is important to note here that as on 26th April 2018, over 12,000 sexual assault cases pending due to the backlog at forensic labs in India, as reported by Hindustan Times. India currently has only 3 labs – Chandigarh, Hyderabad and Kolkata which have the facility to test DNA samples. In multiple cases, DNA evidence to convict accused is destroyed or damaged before it reaches the three centers from remote parts of the country due to lack of trained personnel to handle the same and accessibility of the centers. These issues would not get solved by the mere implementation of the death penalty.

Further, the Petitioners have also contended that the ordinance carves out distinctions between classes of rape victims on the basis of age which indicates that it is knee-jerk reaction since there are other vulnerable categories of persons like pregnant women, elderly, differently-abled and homeless and completely disregards multiple factors including implementation, speedy action, protection and rehabilitation of victims, access to justice, which play important factors in prosecution and conviction.

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