'There Was A Strong Case To Promulgate An Ordinance'

Text of the opening statement by  P. Chidambaram Union Finance Minister and Chairman Group of Ministers on Media

We are dealing with a grave issue – crimes against women and punishment for such crimes. I would, therefore, appeal to everyone to deal with the issue with the utmost seriousness and sensitivity.

I would also appeal to everyone to respect the legislative process enshrined in the Constitution. Ordinarily, a Bill is introduced in Parliament and when Parliament passes the Bill, with or without modifications, it becomes law. However, the Constitution provides for making a law where “it is necessary….to take immediate action”. An Ordinance is such a law-when it is felt that the matter brooks no delay. Article 123 of the Constitution empowers the President to promulgate an Ordinance and further provides that the ordinance shall cease to operate at the expiry of six weeks from the reassembly of Parliament. Therefore, there is an obligation upon the government to introduce a Bill to replace the Ordinance and to get it passed in Parliament before the expiry of the period of six weeks.

The Justice Verma committee gave its report in a record time of 30 days. We are deeply grateful to Chief Justice Verma, Justice Leila Seth and Shri Gopal Subramanium. Chief Justice Verma has since stated that Government should act on the report promptly and make an Ordinance. The advantage of an Ordinance is that an Ordinance will amend the criminal laws immediately. On the other hand, if we took the route of a Bill, the changes to the law will take effect only upon the passing of the Bill and the grant of assent by the President and any crime against women committed during the period when the law is in the making will be punishable only under the existing law. Since there is a universal demand that the laws must be amended immediately, and criminal law can only apply prospectively, Government came to the conclusion that there was a strong case to promulgate an Ordinance. Government hopes that the stringent provisions in the Ordinance will have a deterrent effect on the potential criminals during the period between now and the date on which the new law will be enacted by Parliament.

Substantive amendments have been made to the Indian Penal Code. While the recommendations of the Justice Verma Committee on punishment have been accepted, death has been prescribed as the maximum punishment in the case of rape followed by injury which causes death or causes to the victim to be in a persistent vegetative state. Death has also been prescribed as the maximum punishment in the case of a second conviction for the offence of sexual assault or aggravated sexual assault. Besides, the Ordinance contains provisions amending the Code of Criminal Procedure and the Indian Evidence Act. These amendments are intended to protect the dignity of the victim, restrain any police excesses, and facilitate better recording of evidence. These provisions will ensure fair and speedy trial of such cases and more stringent punishment to the convicted persons.

Accordingly, after careful consideration, the Cabinet approved a draft Ordinance and advised the President to promulgate the same. The President promulgated the Ordinance yesterday.

I may point out that another Bill to amend the criminal laws is pending in Parliament. That is the Criminal Law (Amendment) Bill 2012 which was introduced in the Lok Sabha on 4.12.2012 and referred to the Standing Committee.

The Ordinance that was promulgated yesterday contains 22 clauses. Of these, 11 clauses have been taken from the pending Criminal Law (Amendment) Bill, either wholly or substantially. I may note that the Justice Verma Committee also agreed with these clauses and hence there is broad convergence between the provisions taken from the pending Criminal Law (Amendment) Bill and the recommendations of the Justice Verma Committee. A part of one clause has been taken from the definition clause of the Protection of Children from Sexual Offences Act, 2012.

The remaining clauses reflect the recommendations of the Justice Verma Committee.

Let me emphasise that the Ordinance is only the starting point of a legislative process. It begins with Article 123 and will end when Bill is passed by Parliament under Article 107 and such Bill is assented to by the President under Article 111. I would, therefore, like to emphasise that the legislative process is not yet complete. I would appeal to everyone to allow the legislative process to be completed in the forthcoming session of Parliament.

It would not be correct to say that any recommendation of the justice Verma Committee has been ‘rejected’ by the Government. The correct position is that some recommendations of the Justice Verma Committee have not been incorporated in the Ordinace because of divergence of opinion on the issues. These issues require more consultations and deliberations. For example, on the presumption of consent where a marital relationship exists between the complainant and the accused (case of ‘marital rape’) there is divergence of opinion. Similarly, there is divergence of opinion whether the age should be 16 years or 18 years for defining the offence of “rape of an under-age person”. The Justice Verma Committee has recommended the creation of the offence of “breach of command responsibility”; amending section 197(1) of the Criminal Procedure Code (relating to sanction); and amending the Armed Forces (Special Powers) Act, 1958. These recommendations have far reaching implications and have to be carefully considered after consulting the stakeholders concerned, including the Armed Forces and the Police and para-military forces.

Government wishes to assure everyone that further consultations will take place. There will be discussions with the political parties. There will be a debate in Parliament when the Bill is introduced to replace the Ordinance. These consultations, discussions and debate will afford ample opportunity to make changes in the Ordinance which was promulgated yesterday. Government is confident that when the Bill to replace the Ordinance is introduced and passed in Parliament, the Bill will reflect the broadest possible consensus on the imperative and urgent need to have an effective law to protect women and to punish crimes against women.

Government welcomes suggestions from the public on the Bill that will be introduced in Parliament to replace the Ordinance.