NEW DELHI: Death penalty will not just be restricted to rapists in cases where the victim dies or is pushed into a persistent vegetative state, but will also be awarded to those who “repeat” the offence of aggravated sexual assault.

The provisions of the ordinance on sexual assault laws, made public by the government on Monday, put repeat offence of rape in the “rarest of rare category” which will attract maximum punishment of death penalty.

Significantly, government also indicated on Monday that it had an open mind on contentious issues such as whether martial rape should be treated as an offence, and defended the decision to bring in the ordinance by asserting that it would deter potential rapists during the period Parliament enacts the new law.

Explaining the provision of death for repeat offenders, finance minister P Chidambaram said, “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.” He said such a provision would apply to those who committed the crime a second time after being released from jail on completion of post-conviction jail term, as well as those who committed a repeat offence while out of prison on parole.

The finance minister, along with I&B minister Manish Tewari , was talking to reporters about the finer points of the ordinance which has come under attack from women’s rights activists for not incorporating Justice (retired) J S Verma committee’s recommendations for punishing marital rape as well as failure of officers to prevent rapes by men serving under their “command”. The ministers turned down the contention that the government had rejected important, if contentious, recommendations of the Justice Verma committee.

Activists have attacked the ordinance also for ignoring the Justice Verma panel ’s recommendation to amend the Criminal Procedure Code and the Armed Forces Special Powers Act and do away with the requirement to obtain sanction for proceeding against armed forces personnel facing rape charges.

Chidambaram termed the ordinance “only the starting point of a legislative process”, adding the legislative process was not yet complete. “I would appeal to everyone to allow the legislative process to be completed in the forthcoming session of Parliament,” he added.

Chidambaram and Tewari assured more consultations over a range of issues like marital rape, reduction of juvenile age, creation of the offence of “breach of command responsibility” and amending CrPC relating to sanction and the Armed Forces Special Powers Act, 1958. They, however, ruled out the possibility of chemical castration for rapists.

The ministers also explained that since criminal law could not have retrospective effect, the provisions contained in the ordinance would not be applied to the Nirbhaya case accused. But they said the ordinance with provisions for changes in the CrPC and the Indian Evidence Act can help speed up the trial of Nirbhaya’s case along with all pending rape cases.

On why government took the ordinance route, Chidambaram said, “Government hopes that stringent provisions will have a deterrent effect on potential criminals during the period between now and the date on which the new law will be enacted by Parliament.”

Explaining it further, the finance minister said, “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 affect 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.”

As already reported, the ordinance has also introduced a range of new offences against women – voyeurism, stalking and employing a trafficked person – as specific crimes in the IPC. It also provides for maximum punishment up to five years for offences of sexual harassment like explicit sexual overtures, request for sexual favours, forcibly showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Asserting that the government has not rejected any of the recommendations of the Justice Verma committee, Chidambaram said all suggestions were not incorporated in the ordinance as these would be studied and could be incorporated at a later stage.

Since the issues have far reaching implications, he said stakeholders concerned, including the armed forces, police and paramilitary forces have to be consulted.

Chidambaram said there was an obligation on the government to introduce the bill to replace the ordinance and get it passed before six weeks within reassembly of Parliament as required under the Constitution.

The ordinance contains 22 clauses and of these, 11 clauses have been taken from the pending Criminal Law (Amendment) Bill, 2012 either wholly or substantially. “While a part of one clause has been taken from the definition part of the Protection of Children from Sexual Offences Act, 2012, the remaining clauses reflect the recommendations of the Justice Verma committee,” Chidambaram said.

The parliamentary standing committee on home affairs – which is examining the pending bill – on Monday decided to seek the views of the Rajya Sabha chairman on whether the legislation was still “alive” after promulgation of the ordinance.

Chairman of the committee, Rajya Sabha member M Venkaiah Naidu (BJP), is learnt to have told the panel that it can still go ahead with examining the bill and give its report to Parliament. Some members are understood to have termed the timing of the ordinance ahead of the budget session as “unprecedented”.

