“EFFECTIVENESS OF CRIMINAL LAW (AMENDMENT) ACT, 2018 UPON THE CRIMES AGAINST WOMEN”
ABSTRACT:
At the moment, India is growing and developing in every way, and even the rest of the globe is observing its development and moving closer to globalization. Nonetheless, there is a phenomenon or area in which India is experiencing deterioration in their daily lives, namely the safety of women and girls, as well as the administration of criminal law procedures and policies to protect their rights and social respect. The Criminal Law (Amendment) Act, 2018 was enacted with several amendments to the Criminal Law (Amendment) Act, 2013 due to a concerning rise in rape cases, particularly involving young girls. After this bill was approved by both chambers and the president signed it into law, the 2018 Bill became an Act. Twelve Following the horrific Nirbhaya case, the Criminal Law (Amendment) Act, 2013 was approved. The strict provisions included in the 2013 amendment were passed with the intention of protecting women and girls and lowering the number of rape cases. However, there was an increase in rape cases, particularly small girl child rape cases, rather than a decrease in occurrences. Almost every day, numerous women and girls are raped and brutally murdered in different states, towns, villages, districts, cities, etc. The rapists were “outraging the women’s modesty” because they weren’t even protecting a few-month-old girl. Rape and sexual assault were subject to separate modifications as a result of the KATHUA and UNNAO rape cases. A new amendment legislation, known as the Criminal Law (Amendment) Act, 2018,was created.
KEYWORDS:
Woman, Protect, Rape, Penalty, Minor, Nation
INTRODUCTION:
The entire country was shocked by the inhumanity displayed towards a human simply because the person’s biological sex was that of a female, who should have been at home earlier and should not have been the one to enjoy life and try to live like the boys around her. This was the case after the gang rape incident on Nirbhaya in 2012, in which the identity of the girl involved was kept secret. One of the main issues facing our nation is that everyone, from academicians to accused people, and from political figures to spiritual gurus, is attempting to control a woman’s life by placing limitations on her. Even those close to the accused girl criticize her for going out late at night to have fun rather than the rapists.
2nd reference
The Criminal Law (Amendment) Act, 2013 was passed in response to the Nirbhaya Case in order to decrease the number of rape cases and give Indian women a straightforward and easy life instead of one in which they are constantly in danger of something happening to them that would ruin their entire existence. “To provide redress to victims of sexual assault and deter the increasing trend of sexual violence against minors” was the stated purpose of AIM of The Criminal Law (Amendment) Act, 2018. The Indian Penal Code, the Criminal Procedure Code, the Public Order and Security legislation, the Indian Evidence Act, and the POCSO (Prevention of Children from Sexual Offenses) Act were among the criminal laws that were amended by this legislation.
A RANGE OF CRIMES THAT OCCUR AGAINST WOMEN INCLUDE:
1. Acid Attack,
2. Rape and Gang Rape,
3. Attempt to commit rape,
4. Kidnapping and abduction for different purposes,
5. Murder, Dowry death, Abetment of Suicide, etc.,
6. Cruelty by husband or his relatives,
7. Outrage the modesty of women,
8. Sexual harassment,
9. Assault on women with intent to disrobe a woman,
10. Voyeurism,
11. Stalking,
12. Importation of girls up to the age of 21,and,
13. Word, gesture or act intended to insult a woman’s modesty.
RESEARCH METHODOLOGY:
Comparing pre 2018 criminal amendment laws to post 2018 criminal amendment laws-
Pre 2018 Amendments–
- 1961 Amendment
In this, the amendment was made under Criminal Laws, but were not based on rape and sexual assault acts.
2. 2013 Amendment-
It is considered as one of the major 4 Criminal Law Amendment Act, also known as ANTI-RAPE BILL, which came into force on 3rd Feb., 2013.
Mukesh & Anr v. State for NCT Of Delhi & Ors famously known as “NIRBHAYA CASE” was the major case due to which this amendment bill was passed.
This amendment took a commendable step and bought new categories of crime that take place against women. They are:
Section 354(A)- SEXUAL HARRASMENT AT WORK-PLACE
Section 354(B)- ASSAULT OR USE OF CRIMINAL FORCE TO WOMEN WITH INTENT TO DISROBE
Section 354(C)- VOYEURISM
Section 354(D)- STALKING
The underlying premise of this act was that women would always be the victims of crimes committed by men, who should be held accountable for them. Neither the idea of “ROLE-REVERSE” nor the crimes perpetrated against the same sexes were taken into consideration. As a result, this Amendment Act did not take the LGBTI population into consideration.
Even the definition of rape was expanded beyond “penile-vaginal intercourse and penetration of penis or any object in mouth, anus, vagina, or urethra was termed as rape.Several new provisions were also created for Sections 375 and 376, which define and specify the punishment for rape. Section 376(1), also known as “Normal Rape,” increased the punishment from a minimum of seven years to life in prison, while Section 376(2), commonly known as “custodial rape,” increased the penalty from a minimum of ten years to life in prison.
Various new offences were being categorised under this:-
Sec 376A- PUNISHMENT WHEN THE FEMALE VICTIM DUE TO“ACT OF RAPE” IS IN VEGITATIVE STATE {Punishment- 20 years}
Sec 376B- INTERCOURSE BY HUSBAND WITH WIFE DURING SEPARATION {Punishment- 2 to 7 years}
Sec 376C- INTERCOURSE BY A PERSON IN AUTHORITY {Punishment- Minimum 5 to 7 years}
Sec 376D- GANG RAPE {Punishment- Minimum 2o years to Life Imprisonment}
Sec 376E- REPEAT OFFENDERS- Life or Death
REALITY of CRIMINAL LAW (AMENDMENT) ACT, 2013-
When India’s criminal laws underwent a major overhaul in 2013, it was promised by the legislation that the other half of the nation would now be safe and that the tragic Nirbhaya incident, which is said to have shocked every Indian, would never happen again in the present-day nation. But very quickly, the hopes of Indian women were dashed, and their lives, dignity, and human status—as guaranteed by Articles 14 and 21 of the Constitution of India, 1950—were once more mocked by the barbaric rape, gang rape, and child rape incidents that kept occurring in increasingly gruesome ways.
For instance,
– Shakti mill gang Rape
– Badaun gang rape
– Rohtak gang rape victim assaulted by same men
– 11-year-old gang raped by 22 men
– Kathua gang rape
– Surat gang rape
Example- A girl aged 15 years enters into a consensual relationship with a man (aged 18 years). Once it is established in the Court of law that the prosecutorix is below the age of consent (18years as per POCSO) it will be seen as a case of Statutory rape. Consent here becomes unimportant and besides of the fact that the intercourse sexually done was consensual with him, it will still be amounting to rape. Dr. K.I Vibhute contends that this is based on the notion that a woman below the age of sixteen years is not capable to think rationally and efficiently. Presumption of legislature with this that her consent of her gullibility to be lured into consensual sexual intercourse and her inability to appreciate its implications.
Post 2018 Amendments-
2018 Amendment:
- Amendment for 2018:
The horrific Mohd. Akhtar v. State of Jammu and Kashmir rape case, popularly referred to as the KATHUA RAPE CASE, was the catalyst for the scandal surrounding the 2018 changes. In one case, an eight-year-old Muslim girl from the Bakarwal clan was abducted on January 10 and subsequently raped and killed near the Jammu and Kashmir village of Kathua. The accused comes from a very prominent family, thus the case was transferred from J&K to Pathankot, Punjab, for a fair trial. In one case, six adults and a toddler sexually molested the girl before killing her. This rape attack was caused by the religious differences between the Bakarwal Muslim group and the Hindu community in that area. During the hearing of this case, it was even found that the youngster was under the influence of a sedative before she was raped and murdered.
The UNNAO RAPE case was another painful, horrific, and amusing example. In this case, a 17-year-old Dalit girl was gang-raped in Uttar Pradesh on June 4, 2017. After a woman convinced her to go to an MLA’s house, the victim was kidnapped from her village. MLA Kuldeep Singh Sengar, his brother Jaideep, also known as Atul Singh, and other people then sexually abused the victim. Because of the defendants’ political ties, this case was forwarded to the Central Bureau of Investigation (CBI) in response to strong public and media pressure. As India was recovering from the most horrific rape case, NIRBHAYA (FEARLESS), the events of KATHUA and UNNAO shocked the entire country and caused us to question the laws that are already in place. After the Nirbhaya tragedy, many changes were made to the criminal laws, yet terrible crimes still occurred in our country, which begs the crucial question for all of us: Were the laws implemented by the government tough enough to reduce the rates of crime against women? In order to address this issue, the government once more passed the CRIMINAL LAW (AMENDMENT) ACT, 2018, which made numerous amendments to the Criminal Procedure Code (CrPC), the Indian Evidence Act (IEA), and the Indian Penal Code (IPC).
Major changes proposed in Criminal law-
In IPC, the minimum punishment for rape upon a girl below 12 years of age was just
10 years and the maximum punishment was life imprisonment. While, in the
Amendment Act of 2018, the minimum punishment has been increased to 20 years and the maximum punishment consists of the death penalty for convicts.
In IPC, the minimum punishment for gang rape upon a girl below 12 years of age was just 20 years and the maximum punishment was life imprisonment. While, in the Amendment Act of 2018, the minimum punishment has been increased to life imprisonment and the maximum punishment consists of the death penalty for convicts.
In 2018 Bill, the amendment permits the death penalty only for convicts who are found guilty of committing rape or gang rape upon girls below the age of 12.
In IPC, the minimum punishment for rape upon a girl below 16 years of age was just 10 years and the maximum punishment was life imprisonment. While, in the Amendment Act of 2018, the minimum punishment has been increased to 20 years, the maximum punishment has not been changed for convicts, i.e., it still is life imprisonment.
In IPC, the minimum punishment for gang rape upon a girl below 16 years of age was just 20 years and the maximum punishment was life imprisonment. Whereas, in the Amendment Act of 2018, the minimum punishment has been increased to life imprisonment and the maximum punishment has not been changed for the convicts, i.e., it still is life imprisonment.
In IPC, the minimum punishment for rape upon a girl of 16 years and above was just 7 years and the maximum punishment was life imprisonment. While, in the Amendment Act of 2018, the minimum punishment has been increased to 10 years along with the maximum punishment has not been changed for the convicts, i.e., it still is life imprisonment.
Comparing Rape punishments for Minor boys and girls-
In the age slot of Below 12 years, it has been seen that for boys, the punishment remains the same even after the 2018 ordinance, i.e., 10 years of imprisonment or life imprisonment. Whereas, in girls below 12 years of age, the punishment before the 2018 ordinance was 10 years of imprisonment but after the ordinance was 20 years of imprisonment to life imprisonment or maybe to death penalty, depending upon the brutality of the Rape.
In the age slot of between 12-16 years, it has been seen that for boys, the punishment remains the same even after the 2018 Amendment, i.e., 7 years imprisonment or life imprisonment. Whereas, in girls BETWEEN 12-16 years of age, the punishment before the 2018 ordinance was 10 years of imprisonment but after the ordinance was 20 years of imprisonment to life imprisonment.
In the age slot of between 16-18 years, it has been seen that for boys, the punishment remains the same even after the 2018 ordinance, i.e., 7 years imprisonment or life imprisonment.
Whereas, in girls BETWEEN 16-18 years of age, the punishment before the 2018 ordinance was 7 years of imprisonment but after the ordinance was 10 years of imprisonment to life imprisonment.
LITERATURE REVIEW:
Important Changes in Indian Penal Code and Code of Criminal Procedure post Criminal Law( Amendment) Act,2018;
- INDIAN PENAL CODE-
The minimum penalty for sexually assaulting a woman has been increased from seven to ten years. The execution or death penalty for those who rape females under the age of 12; the minimum penalty for raping a girl under the age of 16 is 20 years in jail, but it can be raised to life in prison. A clause regarding the victim’s fine has also been added as a result of the modification. In order to pay for the victim’s medical and rehabilitation expenses, this fine must be just and reasonable.
Consequently, section 376D, or group rape, is extended by sections 376DA and 376DB. In addition, section 376E (punishment for repeat offenders) has been updated to include sections 376AB, 376DA, and 376DB in addition to sections 376, 376A, and 376D. If someone is found guilty of an offense punishable by any of the aforementioned Sections 3 after having previously been found guilty of an offense punishable by Section 376, Section 376A, Section 376AB, Section 376D, Section 376DA, or Section 376DB, they will either be executed or imprisoned for the rest of their natural l376DB.
- CODE OF CRIMINAL PROCEDURE-
The two-month time limit for investigations into offenses under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the Indian Penal Code was eliminated by amending subsection 1A of section 173 of the Criminal Procedure Code. An amendment to section 374 of the CrPC included clause 4 pertaining to the resolution of appeals involving sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the IPC within six months of the appeals’ filing date. Section 377 of the CrPC was changed to include a similar provision to section 374, but in response to a state government appeal.
In order to address the non-application of anticipatory bail provisions granted under Sections 376, 376AB, 376DA, and 376DB’s Clause 3 offenses, Section 438 of the Criminal Procedure Code was revised.
Section 439 of the CrPC was amended to require the High Court or Court of Session to notify the Public Prosecutor of the bail application within 15 days of receiving two notices of the application. It also requires the informant to attend the hearing for the applicant’s bail request or the attendance of any other person designated by him before granting bail to an individual accused of violating clause 3 of sections 378, 378AB, 378DA, or 378DB.
The Criminal Law (Amendment) Act of 2018 is in direct opposition to the POCSO Act, even if it modified the age and trial-related conditions for accused parties. The question of who would have the last word in deciding the penalty is often raised by the various laws on the punishment for incidents of minor rape found in the IPC and POCSO Act. However, the POCSO Act explicitly states that the IPC or the POCSO Act, whichever carries the severe penalty, will be applied in situations of rape of a minor.
SUGGESTIONS:
- Enact and enforcing a comprehensive legislation
- Stringent rules and punishments for the offenders
- Increased Public investment scheme aiming to protect the integrity of women at all levels and places in India
- Promote Literacy and Awareness of Rights- Awareness about the laws and offenses against women to the general public
- Criminal laws to be applicable without a scope of bias or scope of getting out of jails.
- Mandatory heaviest penalty for the cases of Rape
- Accountability and Efficiency at all state levels
- Criminalisation of Marital Rape
CONCLUSION:
To summarize, it is only possible to say that an offense must be treated as such. Simply establishing categories after categories won’t do any help. In fact, it will simply serve to further the ugliest argumentative disagreement about a person’s age, sexual orientation, sex, and what constitutes natural order, etc., which amounts to double victimization of the individual. Despite considering biological sex, the seriousness of the offense should be considered. Criminal law amendments from 2013 and 2018 are both nothing more than an illusion that provide the impression that a problem has been solved when there actually isn’t any justice. Civil communities have maintained that using violence as vengeance is not the best method to end the rape epidemic. It is said that the state uses the death sentence as a form of retaliation. The problem is that society at large isn’t doing anything to elevate women’s standing in society—not in terms of wealth or property, but rather in terms of their basic dignity. Morality has no bearing on men, even though it is measured by what women say, dress, and walk. Justice is not served and patriarchy reigns due to the stark gender gap in thought. Furthermore, boys and intersex individuals are no longer regarded as victims of sexual offenses, and they are largely left to fight for themselves and obtain justice. Due to the arbitrary and unbalanced application of the law’s black-and-white rules, creative advocacy is used to further close the legal system’s doors.
Submitted by:
ANGEL VOHRA
BHARATI VIDYAPEETH UNIVERSITY, DELHI