Indian President Pranab Mukherjee signed an ordinance approved by the Union Cabinet to strengthen sexual assault laws in response to a January 2013 government report that called for sweeping changes in how the country addresses sexual violence against women. Although women’s rights activists praised the Cabinet for including some provisions from the report, they also criticized the ordinance for what one advocate called its “piecemeal” approach. The ordinance incorporates some suggestions from the report, such as making voyeurism, stalking, and acid attacks criminal offenses, but it diverges from the report in other areas such as marital rape.
One point of concern is that the revised law was enacted through an ordinance rather than through Parliament. An ordinance is an executive branch order to address urgent legal matters when Parliament is not in session. Although the laws become effective immediately, Parliament must ratify them within six months. Some legal experts in India called the ordinance a hasty reaction to public demand and pointed out that when a law creates a new offense or changes the definition of an offense, the law should be fully debated in Parliament before passage.
The ordinance introduces capital punishment for certain types of sexual violence, including rape that results in a victim’s death, that leaves the victim in a persistent vegetative state, and gang rape. Capital punishment is legal in India, but it has been reserved for “rarest of rare” cases since 1983. Crimes for which a defendant may be executed include murder, waging war against the nation, abetting the suicide of a child or insane person, and committing an honor killing. Critics of the ordinance have called the inclusion of capital punishment regressive at a time when the majority of countries are moving toward abolishing the death penalty. According to Amnesty International, 140 countries have abolished capital punishment in law or in practice. Of the countries that retain the death penalty, only 21 carried out executions in 2011.
Although the right to life has not been interpreted to prevent capital punishment, it is relevant when considering the movement away from its use. Article 6 of the International Covenant on Civil and Political Rights (to which India became a State Party without reservation in 1979) protects that right and limits the death penalty’s application. Given the current controversy in India over sexual assault, Parliament could have weighed the pressure to vindicate the rights of sexual-violence victims against the concerns over the right to life issues raised by the death penalty provision. However, the Union Cabinet’s method of implementation did not allow room for this debate.