EXECUTIVE LAWMAKING
THE “NIRBHAYA” (FEARLESS) ORDINANCE: EXECUTIVE LAWMAKING IN INDIA
A vicious fatal attack on a young couple on a bus in Delhi in late 2012 shocked the world and prompted the Indian government to respond quickly with an executive ordinance strengthening the punishment for such an act. Although the attack was exceptional, the former Secretary-General of India’s Rajya Sabha writes that the practice of executive law- making in India is not as exceptional as would be expected in a vibrant and experienced parliamentary democracy.
Dr Vivek K. Agnihotri in New Delhi.
Dr Agnihotri was the Secretary-General of the Rajya Sabha, the upper House in the Parliament of India, until September 2012. He was Secretary for the Ministry of Parliamentary Affairs from 2003 to 2005 and an Administrative Member of the Central Administrative Tribunal (Principal Bench) of New Delhi from 2006 to 2007.
On 17 December 2012, India (and the rest of the world, a little earlier or later) woke up to a disconcerting media report of a barbaric incident. A 23-year old female physiotherapy intern was brutally assaulted and raped in Delhi, perhaps on account of her “fearless” protests, in a bus in which she was travelling late in the evening with a male companion. When the woman’s companion tried to intervene, he was reportedly beaten and knocked unconscious with an iron rod. The alleged assailants (a group of six males) then are said to have beaten the woman with the rod and raped her. The attack eventually led to her death.
Medical reports later indicated that she suffered serious internal injuries during the assault, and doctors said that a blunt object (possibly the iron rod) may have been used. That rod was later described by police as being a rusty implement resembling a wheel jack handle. According to the International Business Times, a police spokesman said that a minor was the most brutal attacker and had “sexually abused his victim twice and ripped out her intestines with his bare hands”.
132 | The Parliamentarian | 2013: Issue Two
Dr Vivek K. Agnihotri
The horrendous event caused widespread local, national and international outrage and public protests against the concerned authorities, including the government as well as civil society, for not being able to provide adequate security to women in India.
An executive response On 22 December, a judicial committee headed by Justice J.S. Verma, a former Chief Justice of the Supreme Court of India, was appointed by the government of India to submit a report within 30 days on possible amendments to criminal law
to deal sternly with sexual offences. The committee submitted its report after 29 days. Taking note of the recommendations of the committee, the President of India promulgated the Criminal Law (Amendment) ordinance on 3 February 2013 which provided for amendments to the Indian Penal Code 1860, the Indian Evidence Act 1872 and the Code of Criminal Procedure 1973 on laws related to sexual offences. The ordinance, inter alia, provided for rigorous imprisonment for at least 20 years or the death penalty in the case of a rape leading to the death or persistent vegetative state of the victim.
When the Indian Parliament assembled on 21 February for its first session of the year (the Budget Session), the government, in keeping with the time-honoured convention, laid a copy of the ordinance on the Tables of the two Houses of Parliament. A Bill to replace the ordinance was placed before cabinet which referred it to a group of Ministers and, based on its recommendations, finally approved the Bill.
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