Legislative Commentary: CRIMINAL LAW AMENDMENT ACT, 2013
Palak P. Kumar,
Amity University Haryana
ABSTRACT
One of the most terrible cases which hit the nation was the Delhi Gang Rape case. This case made the nation look for a change in the laws that was on sexual offences. The Criminal Law Amendment Act of 2013 was one of the major legislative reforms initiated by the government that sought to address the rising incidents of sexual offences and sexual violence against women. The Criminal Law Amendment Act of 2013 which is generally known as the Anti-Rape Bill, took effect on 3rd February, 2013. It was passed by the Lok Sabha on 19th March 2013 by the Rajya Sabha on 21st March 2013 and on 2nd April 2013, it entered assent from the President of India. The Criminal Law Amendment Act of 2013, followed by the new amendments and the changes in the IPC, CrPC and the Indian Evidence Act, give a sense of safety to women in the country.
Keywords: Gang-Rape, Criminal Law Amendment Act of 2013, Anti-Rape
Bill.
2. INTRODUCTION
The Criminal Law Amendment Act,2013, is a significant legislative change in India that primarily aims that address and prevent sexual violence against women. The amendment came in the wake of the horrific gangrape incident in Delhi in December 2012 which sparked widespread protest and demands for stronger laws to protect women.
The Criminal Law Amendment Act of 2013, was passed in the aftermath of the Nirbhaya Case.
The 2012 Delhi Gang Rape and Murder Case, infamously known as the
Nirbhaya Case, involved a rape and feller salt that occurred on 16th December
2012 in Munirka (South Delhi). This incident took place when Jyoti Singh, (victim), a 22-year-old physiotherapy intern was beaten, gang-raped and tortured in a private bus in which she was travelling with her male friend. There were 6 others on the bus including the driver all of whom raped the woman and beat her friend. She was rushed to Safdarjung Hospital in Delhi for treatment and transferred to Singapore 11 days after the assault where she succumbed to her injuries 2 days later.
The incident generated widespread National and international coverage and was widely condemned both in India and abroad. Subsequently, public protests against the state and Central governments for failing to provide adequate security for women took place in New Delhi, where thousands of protesters clashed with security forces. Similar protests took place in major cities throughout the country.
All the accused were arrested and charged with sexual assault and murder. As a result of the protest in December 2012, a judicial committee was set up to study and take public suggestions for the best ways to a quicker investigation and prosecution of sexual offenders. After considering about 80,000 suggestions, the committee submitted a report that indicated that failures on the part of the
Government and police were the root cause behind crimes against women.
In 2013, The Criminal Law Amendment Act was promulgated by President, Pranab Mukherjee, and several new laws bypass and 6 new fast-track quotes were created to hear rape cases.
The Criminal Law Amendment Act of 2013, reflects the country's commitment to protecting women's rights and ensuring justice for victims of sexual offences. Though the following amendment has been passed, continued efforts are needed to address the challenges in implementation and to ensure that the legal provision translates into real-world safety and justice for women.
3. THE CRIMINAL LAW AMENDMENT ACT, 2013.
The Criminal Law Amendment Act, 2013, popularly known as the Anti-Rape
Act, was an act to amend the Indian Penal Code (IPC), 1860, The Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act (IEA), 1872 and the Protection of Children from Sexual Offences Act (POCSO), 2012.
The Criminal Law Amendment Act was passed within five months of the incident.
The act provided the punishment of death sentence in serious forms of rape causing the death of the victim or causing the victim to fall into a vegetative state and for repeat offenders.
The act does not criminalize marital rape.
The act rejects a proposal of the committee which prescribes that candidates facing charges for sexual offences should be banned from contesting elections.
The committee has also recommended that the senior officers of the police and army should be held liable for sexual offences committed by the juniors which was also rejected by the Amendment Act.
The committee advised making provisions for sexual assault committed against male transgenders or homosexuals but it was not included in the Amendment Act.
Features of the Criminal Law Amendment Act, 2013 are -
The Criminal Law Amendment Act, 2013 was enacted in response to the widespread public outcry and protests following the brutal gangrape and murder of a young woman in Delhi in December 2012. The act introduced several significant changes to the IPC, IEA the CrPC and other relevant laws.
Its features include-
A. New Offences and Enhanced Punishments - The act introduced new offences such as acid attacks, sexual harassment, voyeurism and stocking with strict penalties. It also amended existing lost to enhance punishment for various sexual offences including rape.
B. Definition of Sexual Offences -The act broadened the definition of rape and other sexual offences to include acts beyond penile-vaginal penetration, recognising the diverse forms of sexual assault and exploitation.
C. Fast Track Courts - Special fast track courts were established to expedite the trial of cases related to sexual offences to deliver justice swiftly and effectively.
D. Provisions for Victims - The act included provisions for the protection of victims during trials ensuring their privacy and dignity. It also mandates the provision of Legal aid and support services to victims of sexual offences.
E. Police Reforms - The act emphasised police reforms including mandatory registration of FIR in case of sexual differences and strict action against police officers for negligence or misconduct in handling such cases.
F. Legal Reforms - The changes were made in CrPC and the Indian Evidence Act, to improve the legal framework for handling sexual assault cases, including provisions for recording the statements of victims by women police officers or magistrates.
3. JUSTICE VERMA COMMITTEE
Justice J.S Verma, the Former Chief Justice of the Supreme Court was constituted to recommend amendments to the Criminal Law to provide quicker trial and enhanced management for criminals accused of committing sexual assault against women.
The other members of the committee are -
(i). Justice Leila Seth (Former Judge of the High Court).
(ii). Gopal Subramanian (Former Solicitor General of India).
The committee submitted its report on January 23, 2013. It made recommendations and laws related to rape sexual harassment, trafficking, child sexual abuse, examination of victims, police, electoral and educational reforms.
The following are the Recommendations of the Committee -
A. RAPE
The committee recommended that the gradation of sexual offences should be retained in IPC. The committee was of the view that rape and sexual assault are not only crimes of passion but an expression of power. Rape should be retained as a separate of it should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of sexual nature should be included in the definition of rape.
The committee recommended that the exception to marital rape should be removed. Merits you not be considered as an in revocable content to sexual acts. Therefore, concerning an enquiry about whether the complaint contended to sexual activities the relationship between the victim and the accused should not be relevant.
B. SEXUAL ASSAULT
Currently, assault or use of criminal force on a woman with the intent to outrage her modesty is punishable under Sec—354 of IPC, with two years of punishment. The term out raising the modesty of women is not defined in the IPC. Thus, where penetration cannot be proven the offences are categorised as defined under Sec—354 of IPC.
The committee recommended that non-penetrative forms of sexual contact should be regarded as sexual assault. The offence of sexual assault should be defined to include all forms of non-consensual and non-penetrative touching of a sexual nature. The offender should be punished with 5 years of imprisonment, sign, or both.
The use of criminal force to disrobe women should be punishable with 3 to 5 years of imprisonment.
C. VERBAL SEXUAL ASSAULT
At present, using words or gestures to insult a woman's modesty is punishable with 1 year of imprisonment or a fine under Sec. 509 of IPC. This section should be repealed. The committee has suggested that the use of words acts are gestures that create an unwelcome threat of your sexual later should be termed as sexual assault and be punishable by 1 year of imprisonment of fine or both.
D. SEXUAL HARASSMENT
Some of the key recommendations made by the committee on the Sexual
Harassment of Women at Workplace Bill, 2012 are -
(i).Domestic Workers should be included within the perfume of the bill. (ii). Under the bill a complainant and respondent are first required to attempt conciliation.
(iii). The employer should bake compensation to the women who have suffered sexual harassment.
(iv). The bill requires the employer to introduce an internal complaint committee to which complaints must be filed. Such an internal commitment feeds the purpose of the bill and instead, there should be an employment tribunal to receive and adjudicate all complaints.
E. ACID ATTACK
The committee opined that the open should not be gloved under the provisions of previous hurt which is punishable with 7 years of imprisonment under IPC. It noted that the offence was addressed in the Criminal Law Amendment Bill, 2012. The bill prescribes a punishment of employment for 10 years of life. It recommended that the central and state governments create Corpus to compensate victims of crimes against women.
F. TRAFFICKING
The committee noted that the Immoral Trafficking Prevention Act, of 1956, did not define trafficking comprehensively since it only criminalised trafficking for prostitution. It recommended that the provisions of the IPC on slavery be amended to criminalize trafficking by thread force on inducement; it also recommended criminalising employment of trafficked persons. The juvenile women's protective homes should be placed on the legal guardianship of high courts and steps should be taken to reintegrate the victims into society.
4. CASE LAWS
A. DELHI GANG RAPE CASE, 2012.[i]
The Nirbhaya Case also regarded as the Delhi Gang Rape Case,2012, is a case when a paramedical student does that act while going home after watching a movie with her friend. She was reputedly raped tortured brutally and thrown off the bus along with her friend. The attack occurred on the night of December 16, 2012, in South Delhi. The female victim who was later referred to as "Nirbhaya", was travelling with a male friend. They were returning on a private bus to return home after watching a movie.
Six men, including the bus driver, were present on the bus and attacked the male friend, beating him unconscious with an iron rod. The attackers then took turns on the woman and inflicted severe injuries on her using the iron rod causing extensive damage to her internal organs. The assailants threw both victims out of the moving bus. They were found by a passerby and taken to a hospital. Despite extensive medical treatment in India and later in Singapore, the woman succumbed to her injuries on December 29, 2012. All sex attackers were arrested quickly after the incident. One of them was a juvenile and was tried separately under the Juvenile Justice Act. The charges included gang rape, murder, kidnapping, destruction of evidence and other crimes.
The Nirbhaya Case is a catalyst for significant legal and social changes in India. It exposed the deep-rooted issues of sexual violence and gender equality and led to the enactment of more stringent lost protect women. The case remains the symbol of the struggle for women's safety and justice in India.
B. LAXMI VS. UNION OF INDIA, 2015.[ii]
In this case, Laxmi, who was a strong acid attack survivor, filed a PIL against the Union of India.
The Facts -
Laxmi, who was aged about 15 years suffered an acid assault and filed this PIL. She was raised in a middle-class household and held her parents by taking a part-time job as a salesman at a bookseller. Two acquaintances visited her on the tragic day of April 22, 2005, and they doused her in acid. When they heard her screams a crowd gathered but no one attempted to aid. After that, she was brought to the Ram Manohar Lohia Hospital, where she received medical care. According to the medical report, the girl got about 25% acid blisters on her face, chest, eyes as well as forearm.
The Issues -
Amendments must be made to pertinent laws, such as the IPC, CrPC and the IEA, to ensure that the criminal justice system recognises acid assault as a distinct crime and that the perpetrators of the attack face harsh punishment. Creating regulations to prohibit the selling and purchasing of acid.
The Judgement -
This resulted in the following changes to the laws governing the criminal justice system. Sec. 326A and B, which particularly addressed the offence of acid assault were added to Sec. 336 of IPC.
The Code of Criminal Procedure has been changed to incorporate Sec. 357B, which ensures that the victim will get reimbursement and addition to the penalties required under Sec. 326A and 376D of IPC.
Sec. 114B, which describes the purpose and knowledge that the preparatory is likely to have under Sec. 326A of IPC was also added to IEA.
The victim is entitled to a compensation of at least 3 lakh rupees according to the government Victim Compensation Scheme, which also established a consistent method for paying the compensation. Aligarh Services Authority was also established to help victims in obtaining justice.
C. TUKARAM AND ANR. VS. STATE OF MAHARASHTRA,
(MATHURA RAPE CASE), 1981.[iii]
The court found that all the following appellants along with two others were members of an unlawful assembly each one of them being armed with a deadly weapon. Accused 1, alone is shown to have fired shorts which result is covered by Sec.307. No overt act apart from membership of the local assembly has been brought home to any of the appellants except that they were also armed with the deadly weapon at the time of the occurrence. Their convictions for an offence under Sec. 307 r/with Sec. 149 is this well-founded but the fact that it is not proven that any of them use their respective weapons during the assault is certainly a mitigating circumstance.
D. STATE OF PUNJAB VS. GURMIT SINGH AND ORS, 1996.[iv]
In the following case, the Supreme Court observed that rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female.
E. BHARWADA BHOGIBHAI HIRJIBHAI VS. STATE OF
GUJARAT,1983.[v]
In the following case, the Supreme Court observed that in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule adds insult to injury.
F. TARKESHWAR SAHU VS. STATE OF BIHAR,2006.6
The Interpretation of the word ‘Penetration’, which was earlier urged by the Delhi-based NGO, Sakshi in its PIL, finally found its place in the legislation itself after this amendment. To constitute the offence of rape ‘Penetration’ is necessary, the depth and means of penetration do not matters. The explanation appended to Section 375, makes it clear that even the slightest penetration of male organs into the female is sufficient to constitute ‘sexual intercourse’ and the depth of penetration is immaterial.
G. NATHU RAM VS. STATE OF HARYANA,1995.
It was observed that it is the ‘Penetration’ not ‘Ejaculation’, which is the sine qua non for the offence.
5. CHANGES AND CRITICISMS TO THE CRIMINAL LAW AMENDMENT ACT, 2013.
5.1 Changes brought to the Indian Penal Code, 1860 by the Criminal Law Amendment Act, 2013.
❖ The Criminal Law Amendment Act, of 2013 introduced a new provision under Sec. 166A of the IPC, for punishing Police officers who do not record an FIR in cases of crimes against women, like rape.
❖The amendment also inserted a new proviso under Sec. 166B, for punishing those in charge of a hospital for refusing to provide free-of-cost treatment to victims of rape.
❖ The definition of the offence of rape in Sec. 375, was broadband to include acts other than possible sexual intercourse. The amended Sec. 375, after the act included forcible "penetration by a man of his penis, any part of his body or any object into the vagina, mouth, urethra or anus of a woman or making her do so with him or any other person", "manipulation of any part of the body of a woman to cause penetration into the vagina, urethra or anus of a woman or making her do so with him or any other person", and "applying his mouth to the vagina, anus, urethra of a woman or making her do so with him or any other person".
❖ Consent was defined by adding an explanation in Sec. 375, as
"unequivocally voluntary agreement", signifying willingness by the women by words, gestures or any form of verbal or nonverbal communication to participate in the sexual act. The definition clarifies that a woman's silence or absence of 'no' cannot be construed as a 'yes'. ❖ The age of consent was raised from 16 to 18 years.
❖ The ambit of Sec. 376(2), was expanded to include rapes committed by personal or armed forces deployed by the Central or State Government.
The expansion also included rape of a woman below the age of 16 years
to be considered as aggravated and hence enhance the punishment to be awarded for it.
❖ The act deleted the provision that the court supplying judicial discretion could impose a reduced sentence that was lesser than the minimum sentence that could be offered for a specific offence.
❖ Separate subsections were introduced under Sec. 376 (Sec. 376 D, A, E).
❖ Sec. 376C, was expanded to include the abuse of a position of authority or fiduciary relationship by certain persons to induce or seduce any women in his custody or charge to have sexual intercourse with him.
❖The Death Penalty was also introduced under the section as the punishment along with life imprisonment without parole.
5.2 Changes brought to the Code of Criminal Procedure by the Criminal Law Amendment Act, 2013.
❖ Sec. 154 (1), which deals with the recording of FIR was amended to include that in certain offences against women including rape, the FIR has to be recorded by a women police officer or any women officer. It also added that in case of a woman who is temporarily or permanently mentally or physically disabled and commissions or attempts of an offence under sections - 354, 354 A-D, 376 - 376E or Sec. 509, of the IPC, search information shall be recorded by a police officer at a residence or a place of a choice in the presence of an interpreter or a special educator. Along with this such information shall be videographed and her statement before the Magistrate under Sec.164 of CrPC, shall be recorded as soon as possible by the police officer.
❖ In addition to the changes made in Sec. 154(1), a new subsection 165(A), was inserted which made it necessary for the recording of statements given by the victim of offences under sections - 354 (A-D), 376 subsections one or two, 376 (A-E) or 509 of the IPC, by the Judicial Magistrate, as soon as the commission of such offences brought into the notice of the police authorities.
❖ An explanation was added to Sec. 197(1), to the effect that it would not be necessary to see prior sanction from the appropriate government for the prosecution of a public servant for any of the offences of sexual abuse. These are the apparent reasons that Sec. 197, is intended to protect public servants from malicious prosecution of acts in the discharge of duties. At any stretch of the imagination, it cannot be argued that sexual abuse happened as a part of public duties hence the said amendment was made to enable expeditious prosecution of public servants for rape and other forms of sexual abuse.
5.3 Changes brought to the Indian Evidence Act by the Criminal Law Amendment Act, 2013.
❖ A new section, Sec. 53A was inserted by the amendment which deals with 'evidence of character or previous sexual experience'. As per this section, in the prosecution of the offence of rape where the question of consent is in issue, evidence of the character of the victim or sponsons reviews rational experience with any person shall not be relevant to the question of such consent or quality of consent.
❖ The existing Sec. 114A was substituted by a new one stating that in a prosecution for rape under clause (a) to (n) of Sec. 376(2) of IPC, where sexual intercourse between mothers is proven and the question is whether it was without the consent of the women alleged to have been raped and search women states in her evidence before that she did not consent the court shall presume that she did not consent.
❖ The proviso of Sec. 146, was substituted with the existing 1 to state that in the prosecution of rape, it should not be permissible to reduce evidence auto put questions in the cross-examination of the victim as to the general immoral character of previous sexual experience ab such person with any person for proving such consent or quality of consent.
Following are the Criticisms of the Criminal Law Amendment Act 2013 (i). It is not a Gender Neutral Law.
(ii). Non-inclusion of provisions from marital rape.
(iii). Non-debarment of politicians charged with sexual offences.
6. CONCLUSION.
The Criminal Law Amendment Act, 2013 has been all over as one of the most concrete steps taken by the Indian government to curb violence against women. Major amendments by the act in the Indian Penal Code not only widen the ambit of certain offences but also recognise new offences like acid attacks which earlier lacked a specific provision and definition in the code.
The Criminal Law Amendment Act, of 2013, significantly strengthened the legal framework to bring back sexual violence in India. It aims to provide better protection for women and ensure swift justice deterrent against such crimes. These reflected a societal shift towards recognising and addressing the security of sexual offences and the need for more stringent laws to safeguard women's rights and safety.
The 2013 Amendment Act, should be viewed as a mere placeholder in the ongoing struggle against sexual and gender violence in India. What we require is concrete legislation to infuse sensitivity, understanding and more significantly the mindset among police executives to implement the laws more in spirit than in letter and only then deterrent punishment can be awarded for crimes against women.
7. BIBLIOGRAPHY.
Websites -
❖ https://www.legalservicesindia.com
[i] Delhi Gang Rape Case, 2013.
[ii] Laxmi vs. Union of India, 2015.
[iii] Tukaram vs. State of Maharashtra, 1981.
[iv] State of Punjab vs. Gurmeet Singh and Ors, 1996.
[v] Bharwada Bhogibhai Hirjibhai vs. State of Gujarat, 1983. 6 Tarkeshwar Sahu vs. State of Bihar, 2006