The constitutional validity of the Delhi Victims Compensation Scheme, 2011 which treats male and female child victims of sexual abuse in two different manners by considering the crime with former as ‘child abuse’ and with latter as ‘rape’ has been challenged before the Delhi High Court.
Two years back, a 13-year old boy was sexually assaulted by his three seniors who were later convicted of unnatural sexual offences. However when it came to the grant of compensation, the victim was granted an amount of Rs. 50,000 considering the crime as ‘child abuse’. As per the Delhi Victims Compensation Scheme 2011, the maximum compensation for the victims of child abuse is Rs. 50,000 while that for rape victims is Rs. 3 lakh.
The guardian of the minor boy through the Advocates Diya Kapur and Tejaswi Shetty of the group iProBono, have filed a writ petition under Articles 226 and 227 of the Constitution of India before the Delhi High Court.
||Writ Petition (Criminal) No. 798 of 2015
||The Minor Through Guardian Zareen v. State ( Govt of NCT of Delhi)
|Date of filing
||17 April 2015
The Petition seeks directions to the respondent – State of Delhi (NCT) declaring the Schedule of the Delhi Victims Compensation Scheme, 2011 relating to victims of child sexual abuse and assault, as contrary to Articles 14, 15 and 21 of the Constitution of India. Petition also seeks directions to the respondent – State of Delhi (NCT) to reformulate the Schedule with an enhanced and more rationale scheme of compensation.
Petition further seeks directions to adopt the scale of compensation notified by the State of Goa in terms of the judgment of the Supreme Court of India in the case of Suresh & Anr. v. State of Haryana – (2015) 2 SCC 227.
The impugned schedule [of the scheme] also effectively discriminates against male and female victims, as a minor female may be entitled to compensation of Rs three lakh under the head of rape whereas a male victim will only be entitled to compensation of Rs 50,000 under the head of child abuse. [Business Standard]
The petition claims that a compensation of Rs 50,000 under the head of child abuse was “arbitrary, grossly inadequate and discriminatory” as a minor girl would be entitled to compensation of Rs 3 lakh under the head of rape for a similar crime. The petition hence contends that the aforesaid scheme suffers from the “vices of vagueness, lack of clarity, arbitrariness, unfair discrimination and non-application of mind”.
A compensation of Rs 10 lakh has been sought for the minor boy on the grounds that he minor boy was a victim of a brutal sexual assault which resulted in him undergoing “immense and irreparable physical and psychological trauma and his parents suffered severe financial hardship as an aftermath of the incident”.
Laws in India
Indian laws as such do not recognize rape of a male and the only section which can be invoked for prosecution of the accused is the controversial Section 377 of the Indian Penal Code, 1860 which deals with what it calls ‘unnatural offence’.
As per the data released by iProBono, in a survey of children who reported sexual abuse, including rape or sodomy, 57.3 per cent of the victims were found to be boys and 42.7 per cent were girls. [Indian Express]
Interestingly, the Criminal Law (Amendment) Ordinance, 2013 promulgated in wake of 2012 Delhi gang rape had replaced the existing definition of rape under Section 375 of the IPC – ‘375. Rape: A man is said to commit “rape”…” to a gender neutral crime as “375. A person is said to commit “sexual assault” if that person:…“
However the Criminal Law (Amendment) Act 2013 which was subsequently passed by the Parliament to replace the ordinance removed this gender neutral feature of the crime and restored the earlier status of the offence in terms of the gender.
20 April 2015
Matter was listed before Justice Sunita Gupta. Advocate Mukesh Gupta, ASC who appeared for the State submitted before the Court that as the matter involved the challenge to the constitutional validity of the scheme, it should be heard by the Division Bench.
Justice Gupta then ordered:
As such, subject to orders of Hon’ble the Chief Justice, list this matter before the concerned Division Bench on 30.04.2015
30 April 2015
Matter was then listed before a division bench of Delhi High Court comprising of Justice Sanjiv Khanna and Justice Ashutosh Kumar. The bench issued notice in the matter and sought a response from the State Government over the issue.