§ Section 6, as amended in 2019 (in substance)

(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

Minimum

Rigorous imprisonment of TEN years

Rigorous imprisonment of TWENTY years

Maximum imprisonment

Imprisonment for life

Imprisonment for life, meaning the REMAINDER OF NATURAL LIFE

Death penalty

Not available

Available as the maximum punishment

Fine

Liable to fine

Liable to fine, which must be just and reasonable and paid to the victim for medical expenses and rehabilitation

§ Four families, and a way to remember them

WHO, HOW, WHOM, WHERE:

• WHO the offender is. A police officer (a), a member of the armed or security forces (b), a public servant (c), a member of the management or staff of a jail, remand home, protection home or observation home (d), of a hospital (e), or of an educational or religious institution (f); a relative of the child through blood, adoption, marriage or guardianship, or a person in a domestic relationship or shared household with the child (n); the owner or management of an institution providing services to the child (o); or a person in a position of trust or authority over the child (p).

• HOW it is done. By a gang (g); using deadly weapons, fire, heated substances or corrosive substances (h); causing grievous hurt or injury to the sexual organs (i); repeatedly (l); with an attempt to murder the child (r); or stripping or parading the child naked in public (u).

• To WHOM. A child below twelve years (m); a child with a mental or physical disability, taking advantage of it (k); or a child known to be pregnant (q).

• WHERE, or WITH WHAT RESULT. Consequences including incapacity, pregnancy, HIV or a life-threatening disease, and death (j); during communal or sectarian violence or, after 2019, a natural calamity or similar situation (s); or by a person previously convicted of an offence under the Act (t).

§ What the 2019 Amendment added to Section 5

Clause (j)(iv): where the assault causes the death of the child.

Clause (s): extended from communal or sectarian violence to include a natural calamity or similar situation of violence.

Section 9 was amended in parallel, and a new clause was added there for administering or causing to be administered any drug, hormone or chemical substance to a child with the intention that the child attains early sexual maturity.

§ What the phrase does

A sentence of life imprisonment ordinarily means imprisonment for life, but is subject to remission by the executive, and in practice release commonly follows after a period of years.

By defining life as the remainder of natural life, Section 6 removes the expectation of release on remission under the ordinary statutory scheme, subject always to the constitutional clemency powers of the President and the Governor under Articles 72 and 161.

The idea has a judicial origin. In Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767, the Supreme Court recognised a special category of life sentence beyond remission as an alternative to death, and a Constitution Bench in Union of India v. V. Sriharan, (2016) 7 SCC 1, affirmed the power to impose it.

📖 Bachan Singh v. State of Punjab, (1980) 2 SCC 684

A Constitution Bench upheld the death penalty for murder but held that it may be imposed only in the rarest of rare cases, when the alternative option is unquestionably foreclosed, and that the court must weigh aggravating and mitigating circumstances, giving due weight to the circumstances of the offender as well as the crime, including the possibility of reform.

Rule: the same principles govern the choice of the death penalty under Section 6. Its availability as the maximum does not make it the norm.

📖 Manoj v. State of Madhya Pradesh, (2023) 2 SCC 353

The Supreme Court held that before imposing a sentence of death, the trial court must obtain material on the accused's circumstances, including a psychological and psychiatric evaluation, reports on conduct in prison, and information about background, so that mitigating circumstances are genuinely considered and not left to chance.

Rule: a death sentence under Section 6 requires a real inquiry into mitigation at the trial stage.

§ Three sentencing points specific to Section 6

• The minimum is binding. The court cannot impose less than twenty years' rigorous imprisonment once the offence is proved, whatever the mitigation.

• The fine goes to the victim. Section 6(2) requires it to be just and reasonable and paid to the victim for medical expenses and rehabilitation, which is in addition to compensation under Section 33(8).

• The debate on the death penalty for a non-homicidal offence. It has been argued that it may deter reporting where the offender is a family member, and may create an incentive to silence the child. The argument in favour rests on deterrence in the gravest cases. Both sides belong in an answer.