The Chief Justice of India has decided to examine a petition challenging the constitutional validity of the Indian Penal Code (IPC) Section 376 DB.
Section 376 DB of IPC describes the punishment for gang rape of a minor under 12 years of age; it prescribes a ‘minimum mandatory sentence’ of life imprisonment for the remainder of the convict’s life and even death.
Mandatory minimum sentencing refers to “a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed,”
This provision predetermines the minimum punishment or sentence for certain offences which are considered to be more serious than others, intending to ensure justice and not letting the perpetrator go unpunished.
No matter what the unique, individual circumstances of the offender or the offence might be, the court must mandatorily award this minimum period of sentencing for the offences which prescribe it.
In India, mandatory minimum sentencing is prescribed for all sexual offences under thePrevention ofChildren from Sexual Offences (POCSO) Act except for the offence of sexual harassment.
Under Section 8 of the POCSO Act, a punishment of 3-5 years has been prescribed for offences of sexual assault against children.
Argument in support of Minimum mandatory sentencing;
It limits the scope for judicial discretion and arbitrariness, thereby enhancing the cause of justice.
It acts as a deterrent for serious or harsh offences by ensuring that the perpetrator doesn’t go unpunished.
Concerns raised by some social and judicial activists;
This leads to overcrowding of prisons and is unfair as the convict’s mitigating circumstances, such as if they are a first-time offender or the sole breadwinner in the family, are often overlooked.
According to the official statistics issued by the National Crime Records Bureau, there has been no significant increase in the conviction rate despite an increase in reported cases.
A possible factor could be that judges still have enormous discretion in such cases.
Protection of Children from Sexual Offences (POCSO) Act
The POCSO Act was enacted in 2012.
It is a gender-neutral act; it also recognizes that boys can also become victims of sexual violence as well.
It defines a child as someone under the age of 18.
It also specifically lays down stringent punishment for exposing children to or using them to create child sexual abuse material.
The law lays down the procedures for reporting sexual crimes against children.
It places the burden of proof on the accused, following ‘guilty until proven innocent’ unlike the IPC.
The Act penalizes storage of pornographic material for commercial purposes with a punishment of up to 3 years or a fine, or both.
Challenges with the act
Lack of complaint: Most of the victims experience terrific social humiliation and feelings of shame and guilt when they report that they are sexually assaulted. It either delays or leaves out a no of victims.
Lack of awareness: Parents or guardians often do not have the knowledge to safeguard their children either by educating the children about sexual abuse or by being watchful to prevent abuse on their children.
Poor rate of conviction: POSCO act is plagued by the low rate of conviction. It was 14% in 2014 and 18% in 2018.
Many states have not complied with the provisions of the act as they have not established special children's courts.
The act doesn't cover all aspects of the crime against children. It doesn't cover cyberbullying and other types of online crime against children.
Ineffective training of public prosecutors has often led to the acquittal of the perpetrator.
Way Forward
More awareness needs to be generated to make more children come forward for their child abuse.
Proper training of police, forensic staff and public prosecutors need to be put in place for enhancement o the conviction rate.
The introduction of sex education in schools and educating the children about good touch and bad touch is significant. In 2008-09 Parliamentary committee report mentions the introduction of sex education, but it never materialized. It has to be implemented.
The Supreme Court issued a direction to set up special courts within 60 days in the districts that are having more than 100 pending POCSO cases. This has to be implemented urgently.
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