Just as the poor response of the union government to the Delhi gangrape and the subsequent public protests received all-round censure, the move to rush in an anti-rape ordinance has spread disquiet too. Not only are the women’s organizations objecting to the ad hoc and selective approach, even criminal lawyers are questioning the wisdom of promulgating a poorly thought out ordinance that amends criminal laws – both Indian Penal Code (IPC) and criminal procedure law (CrPC) – without sufficient deliberations and application of mind.

The first major objection is regarding the act of issuing the ordinance itself. It may be a legitimate tool of law making, but what is questionable is the unusual rush when parliament is about to meet (in two weeks). True, this is going to be the budget session and hence, budgeting activities will dominate. But given the favourable response of the opposition parties, there wouldn’t have been much trouble in taking up the matter for deliberations and passage, especially when the justice Verma committee report, which formed the basis for the ordinance, has been criticized by many.
The second is the failure to take a comprehensive and holistic view of the menace. The ordinance mandates harsher punishment for rape and other sexual offences, extending the sentence to life in some cases and defines certain some sexual offences like stalking, voyeurism and even marital rape (only when the spouses are living separately).

But more crucially, it leaves out many important recommendations like, keeping the criminals out of the legislative bodies, for example, to prevent conflict in discharge of duty and undue interference. It also asked for revisiting AFSPA and prosecuting security personnel for sexual offences under ordinary law, crackdown on khap panchayats, develop community policing, provide for stiffer punishment for police for not acting against the offenders and gender sensitization at every level, starting with school curriculum. All of these have been ignored.

Justice RS Sodhi, a retired judge of Delhi high court who practised criminal law from 1972 to 1999, says he doesn’t remember the last time the CrPC was amended through an ordinance. “These are procedural in nature and there is no tearing hurry really to amend it through an ordinance. More so when a parliament session is about to begin. It only tells you that the government has little confidence in itself to have these things passed in a rational manner,” he told Governance Now.

He also says that the move is nothing more than pandering to loud voices (which he says may not necessarily be the sound ones) without any rationale about what to achieve or any data to support the necessity of the amendments. “There is a random increase in sentences for some offences. Which data says higher punishment will bring the crime rate down? Has the death sentence for murder brought down the killings (to warrant a similar provision for rape)? Besides, how many death sentences have been executed (in India)?” he demands to know, dismissing the justice Verma committee report as a mere “cut-and-paste job”.

SS Gandhi, another eminent criminal lawyer, too doesn’t remember the last time the criminal law was amended through an ordinance. “Laws are not made on emotions. One horrible incident has taken place but that shouldn’t make us emotional. There are possibilities of its misuse…So, we must be careful about all the aspects of the changes being made. More laws encourage more inspector raj.”

Talking about laws like POTA, the anti-terror law brought in first through an ordinance too, Gandhi says the ordinance had followed serious deliberations at several levels in and outside the government for many months and various views were considered. He sees no problem if similar was the case with the anti-rape ordinance. “If not deliberated properly, I don’t think an ordinance (to amend criminal law) is a good thing”, he summed up his views.