By: Surbhi Karwa

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INTRODUCTION

Well-known criminal law scholar Andrew Ashworth in his brief examination of criminal laws of the United Kingdom enacted in the year 1997 argued that use of criminal law in contemporary confirms to ‘historical contingency’ thesis meaning thereby enactment of criminal provisions by government is ‘unprincipled’ and ‘chaotic’ done in response to a particular event or events of social or political significance. Governments in hope of ensuring their political points, use criminalisation and sentencing to send out a message that, “certain misconduct has been taken seriously and dealt with appropriately”, but in the process, it pays little attention to principled questions of:

how criminal law ought to be shaped, when it should be used, when it should not be used, and how it should be used

Indian legislative history to rape law reforms also presents a similar picture where major reforms were brought after large-scale public uproar with little attention to taking a principled approach to use of criminal law especially the sentencing framework. Rape law reforms thus have been ‘reactionary and sporadic’. In the 19^th century, post-Queen-Empress v Hurree Mohun Mythee reforms were brought in the minimum age of consent and then in 1980’s post-Tuka Ram v State of Maharashtra reforms were brought in form of aggravated rape under Section 376(2), with little reform in between the two. Similarly, in 2013 major and much-needed reform were brought in criminal statue post-December 16 gang rape incident where brutal rape and homicide of a woman led to the nationwide demand for reform in laws.  If one looks at the parliamentary debates on 2013 amendment, it is clear that little attention was paid to taking a principled approach towards criminalization and sentencing, so much so that even the grammatical errors in the bill were not corrected and the same continue to exist till today. And 2018 has been yet another year of such an unprincipled approach in form of the 2018 Criminal law amendment after public protests post-Kathua and Unnao rape case.

ANDREW ASHWORTH’S FOUR CORE PRINCIPLES OF CRIMINAL LAW

Arguing that normative content of what crime is itself no longer provides an answer to the question of what deserves to be criminalized, Ashworth attempted to provide a principled core of criminal law through following principles which he argues, should be followed both at the time criminalization of an act and determining sentencing framework.  Any derogation made therefrom should be principled and explained. Following are those principles:

1. Criminal law should be used and only used, to censure persons for substantial wrongdoing

Ashworth’s First principle while recognising the prevention of misconduct as the reason for criminalization, warns against the tendency to over-estimate the deterrent efficacy of criminal sentencing. This principle questions the prepositions that – prevention of misconduct is sufficient reason to criminalize and that criminal law in its own or combination of other social policies sufficient to prevent conduct.

2. Criminal law should be enforced with respect for equal treatment and proportionally

This principle originates from the well-known principle that like should be treated alike i.e. those who commit wrongs of equivalent seriousness in similar situations shall be subjected to censure of similar magnitude.

3. Persons accused of substantial wrongdoing ought to be afforded the protections appropriate to those charged with criminal offence i.e. at least minimum protections declared by Article 6.2 and 6.3 of European Convention on Human Rights (in case of Europe)

This principle provides that making something criminal offence requires a certain minimum level of protection since criminal law as distinguished from civil law necessarily involves deprivation of liberty.

4. Maximum sentences and effective sentence level should be proportionate to the seriousness of the wrongdoings

Ashworth has argued that parliament in the United Kingdom continues to raise or lower maximum penalties in an ad hoc manner without revising the same so as to achieve an appropriate degree of principles coherence. There is a lack of consistency across the sentencing framework. This brought him to the fourth principle that proportionality and equal treatment require that degree of censure embodied in courts’ sentence shall relate carefully and consistently with the seriousness of wrongdoing in the particular case as well as in the overall sentencing framework of criminal laws of a country.

Testing the 2018 Criminal Law Amendment on Andrew Ashworth’s Core Principles of Criminal Law

The 2018 Amendment mainly deals with the sentencing framework for sexual offences, thus the current article would focus mainly on principles concerning sentencing framework and evaluate the amendment on the said principles.

Let us understand the main features of the 2018 amendment- Enacted in the background of heinous rape of a small girl in Kathua, the 2018 amendment brings following amendments to IPC:

1. It increases minimum punishment for non-aggravated rape under Section 376(1) from 7 years to 10 years.
2. It omits Section 376(2)(i) which treated rape of a woman below 16 as aggravated rape. Instead, it introduces 376(3) whereby rape of a woman below 16 years of age is a new category punished with minimum 20 years imprisonment or imprisonment for life.
3. It adds Section 376AB whereby rape of a woman below 12 years of age is punished with minimum 20 years of imprisonment, life imprisonment or death.
4. It adds Section 376DA whereby gang rape of a woman below 16 years is punished with imprisonment for life.
5. It adds Section 376DB whereby gang rape of a woman below 12 punished with imprisonment for life or death.

In my opinion, the sentencing framework under the amendment is unprincipled where principle 2 and principle 4 have been completely ignored without providing any justifiable explanation for such derogation.

Firstly, the amendment has led to equal punishment for offences under both 376(1) and 376(2) creating a chaotic situation whereby the aggravated form of rape has been provided in the statute book but sentencing has been made equal to rape under Section 376(1).

Post-Mathura Rape case, Section 376(2) was introduced to punish aggravated rape keeping especial vulnerability of the survivor in mind arising from unequal power dynamics between her and the accused. Thus, the Section made aggravated forms of rape like rape by a police officer, persons in the position of trust and authority more heavily punished than rape under Section 376(1). 2013 amendment introduced various new categories to the said provision – rape by members of armed forces, rape during communal and sectarian violence, etc. However, the 2018 amendment increases the punishment under Section 376(1) from minimum 7 years to minimum 10 years bringing punishment under both Section 376(1) and 376(2) at par at 10 years minimum. The equal minimum sentencing under both 376(1) and 376(2) fails to differentiate the more severe nature of wrongdoing under Section 376(2) than rape under Section 376(1).  Every rape is an act of assertion of power but the instances of 376(2) have an element of coercion and undue influence to them and thus are deserving of more censure, it was argued during bringing of the Section. But now the situation has been changed, what policy is guiding the same is not clear.

Did the legislature aimed at treating both at par, does it no longer believes that aggravated forms of rape shall be treated separately? If yes, then why does Section 376(2) exists separately then? Clearly, little attention has been paid to these policy questions.

Secondly, the sentencing framework creates an unequal application of criminal law by introducing mandatory minimum sentencing framework and complete removal of discretion of judges.

Prior to 2018 amendment, rape of a woman under 16 years of age was punished with a minimum 10 years imprisonment. The 2018 amendment by deleting Section 376(2)(i) and insertion of Section 376(3) raise the minimum punishment for rape of woman below 16 years of age to 20 years. The maximum punishment for the said offence is imprisonment for life. In addition, Section 376AB creates a new category for sentencing whereby rape of a woman below 12 years of age is punished with from minimum 20 years imprisonment to imprisonment for life or death.

At the time of introduction of the mandatory minimum sentencing framework in 2013, it was heavily criticized by scholars.  The mandatory minimum sentencing framework was brought to reduce judge-centric nature of punishment whereby irrelevant considerations like past sexual history, marital status of the victim etc. were used to provide sentence below the minimum sentencing. However, imposing a mandatory minimum sentence as done in the 2013 amendment does not help the case of reducing arbitrariness either. Treating every case similarly and providing the same punishment is as arbitrary as treating like cases differently. The 2018 amendment has created a further problematic situation by a whopping increase in minimum sentencing.

The 2018 provisions have created normative confusion on policy regarding what is aggravated or more severe form of rape. What are the factors for determining the aggravated nature for policy formulation regarding sentencing, remains unclear and thus disturbing the link of the level of wrongdoing to nature and severity of punishment? While rape with a woman below 16 years or 12 years is severely punished, the aggravated form of rape is punished at the same level with rape under Section 376(1). This raises questions as to what is the nature of gradation for the offence of rape for determining the level of punishment? Is rape of minor a separate category more severe than aggravated forms of rape? What principle determines the same? There are no answers in terms of principles guiding the policy formulation for sentencing. Maximum sentences have been raised in an ad hoc manner, with no discretion left with judges and with no guiding policy on what is aggravated rape? Thus, the fourth principle of Ashworth stands violated by such an ad hoc amendment. Now, there is little consistency in the overall sentencing framework for sexual offences in IPC.

Further, the amendment violated the second principle of Andrew Ashworth by creating unequal enforcement of criminal law. This must be especially read in light of the fact that the criminal law in India does not distinguish between consensual and non-consensual sex between minors whereby any sexual encounter with a woman below 18 years is statutory rape irrespective of the consent of the woman. This blurring of distinction has already received heavy criticism because it treats unequal individuals with equal heavy-handedness. A case of teenage consensual sex and rape are treated equally. The 2018 amendment further complicates the matters by increasing the harshness of sentence whereby every sexual encounter with the woman below 16 years of age is considered statutory rape with accused getting minimum 20 years sentence. A child of 18 years and one month may end up with 20 years imprisonment for a consensual sexual act just like a person convicted of rape.

CONCLUSION

Clearly, the principles of Ashworth have been derogated with little justification. In the times of sex offenders registry amendment to criminal law should have been guided with more principled approach than our legislatures have currently adopted.

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(Surbhi graduated from Dr. Ram Manohar Lohiya National Law University, Lucknow in 2018 and is currently pursuing LL.M. in Constitutional Law and Criminal Law from National Law University, Delhi. She would like to thank Prof. Mrinal Satish whose class assignment, class readings and class discussions led to the writing of this article.)