The Criminal Law (Amendment) Bill, 2013, more popularly called the Anti-Rape Bill, is now law. The Act came into force on 3rd February, 2013 following the outrage of the entire nation behind the homicidal gang rape that took place in New Delhi on the night of 16th December 2012. The protest in the Delhi after the barbarous Rape Incident indicated the whole of India, the enormity as well as the seriousness for an immediate reform in Rape Laws. This paper discusses the major amendments of the sections regarding sexual offences in the Indian Penal Code. The insertion of the new provisions and the amendment of the existing provisions have been dealt with in detail in the present work. The Act recognizes the broad range of sexual crimes to which women may fall victim, and a number of ways in which gender based discrimination manifests itself. It also acknowledges that lesser crimes of bodily integrity often escalate to graver ones. It seeks to treat cases as “rarest of the rare” for which courts can award capital punishment if they decide so. The Act clarifies and extends the offense of sexual assaults or rape as a result of abuse of position of trust. This paper also in the end compares the rape laws in other countries and lays emphasis on the Justice Verma Committee report.
The Criminal Law (Amendment) Act, 2013, an Indian legislation passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013, provides for amendment of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences. The Bill received Presidential assent on 2 April 2013 and deemed to came into force from 3 February 2013. It was originally an Ordinance promulgated by the President of India, Pranab Mukherjee, on 3 February 2013, in light of the protests in the 2012 Delhi gang rape case. There had been widespread demand by the public as well as various human rights groups and women’s organisations to change or amend the existing law relating to sexual offences. A graver punishment for the accused was demanded for committing such a heinous crime. The nation-wide spread outrage over the brutal gang rape and subsequent death of the physiotherapy intern in India’s very own capital city, New Delhi was the driving force behind the passing of the Criminal Law (Amendment) Act, 2013 that sought to amend the existing laws regarding sexual offences in India. The Act is deemed to be one of the most important changes that have been made in the existing criminal laws namely the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act.
The 2012 Delhi gang rape case involved a rape and fatal assault that occurred on 16 December 2012 in Munirka, a neighbourhood located in the southern part of New Delhi, when a 23-year-old female physiotherapy intern was beaten and gang raped in a private bus in which she was travelling with a male friend. The victim later died due to her injuries. The incident generated widespread national and international coverage and was widely condemned, both in India and abroad. Subsequently, public protests against the Government of India and the Government of Delhi 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 demanding stricter laws and speedy justice.
As per the Act, the police will also be penalized for failing to register FIRs – this will make it easier for rape victims to report their cases. The Act introduced unprecedented provisions in the Indian Penal Code which criminalises sexual voyeurism and stalking and amends legal provisions to protect the privacy of individuals, such as discontinuing the practice of examination of the sexual history of the victim of a sexual assault for evidence. With instances of threats to individual privacy on the rise in India, it was high time that the criminal law expands its scope to deal with offences which violate physical privacy. The Act has also been widely criticized for not following the recommendations of the Verma Committee that had been specifically constituted to observe and recommend changes in the present penal provisions.
The Justice Verma Committee Report:
On December 23, 2012 a three member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The other members on the Committee were Justice Leila Seth, former judge of the High Court of Delhi and Gopal Subramaniam, former Solicitor General of India.
The committee urged the public in general and particularly eminent jurists, legal professionals, NGOs, women’s groups and civil society to share their views, knowledge and experience suggesting possible amendments in the criminal and other relevant laws to provide for quicker investigation, prosecution and trial, and also enhanced punishment for criminals accused of committing sexual assault of an extreme nature against women.
Objective of the Committee:
The key objective of the Commission was to review for possible amendments to the criminal law and suggest measures for faster trials and harsher penalties for vicious offences related to violence against women. Taking further cognizance of the strident storm of public protests in general and a tribute to Nirbhaya in particular, on January 23, 2013, the commission submitted its recommendations by identifying ‘lack of good governance’ as the central cause of violence against women. The commission goes on to criticize the government, the abysmal and old-fashioned police system alongside public apathy in tackling violence against women, and thereby, recommends dramatic transformation in legislations. It made recommendations on laws related to rape, sexual harassment, trafficking, and child sexual abuse, medical examination of victims, police, electoral and educational reforms.
The Committee adopted a multidisciplinary approach interpreting its mandate expansively. The Report deals with sexual crimes at all levels and with the measures needed for prevention as well as punishment of all offences with sexual overtones that are on affront to human dignity. This is on the basis that the issue of sexual assault against women is one that goes to the core of social norms and values. The Report also deals with the construct of gender justice in India and the various obstructions to this. The Committee’s approach is founded on achieving the guarantee of equality for all in the Constitution of India.
The comprehensive 630 page report, which was completed in 29 days, was appreciated both nationally and internationally. This eventually led to the passing of the Criminal Law (Amendment) Act, 2013, which was criticised as not adequately applying the Committee’s work and recommendations. The committee in its report blamed the government, police insensitivity and gender bias for the rising crimes against women in the country. It also created some offences like disrobing a woman, voyeurism, stalking and trafficking.
Indian Penal Code, 1860 (IPC)
The amendment inserted a new provision under section 166 A for punishing public servants who refuse to record a FIR in cases of specified crimes against women including rape.
The amendment also inserted a new provision under section 166 B punishing those in charge of a public or private hospital for refusal to provide free medical treatment for victims of rape.
The definition of rape in section 375 was widened to include acts other than forcible peno-vaginal penetration or sexual intercourse. The amended section 375 includes forcible penetration by the 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 so as 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 or urethra of a woman or making her to do so with him or any other person.
Consent was defined by adding an explanation to section 375 as “unequivocal voluntary agreement” signifying willingness by the woman by “words, gestures or any form of verbal or non-verbal communications” to participate in the sexual act. This definition clarifies that women’s silence or absence of ‘no’ cannot be construed as a “yes”.
The age of consent was raised from 16 to 18 years.
Section 376 (2) was expanded to included rape committed by a member of the armed forces deployed in an area by the Central or a State Government in such area.
Section 376 (2) was also expanded to consider rape of a woman below the age of 16 years as aggravated and hence enhanced punishment for it.
The judicial discretion available to impose a reduced sentence (lesser than the required minimum) was deleted by the Amendment.
A separate section 376 D was made for the offence of gang rape with a higher punishment. The section states that, where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine.
The amendment made separate section for rape that caused death or persistent vegetative state of the victim under section 376 A. With this section, the amendment introduced death penalty as a punishment for rape that caused vegetative state or death.
Section 376 C was expanded to include the abusing of a position of authority or fiduciary relationship by certain persons to induce or seduce any woman in his custody or charge to have sexual intercourse with him.
The amendment also included a section 376E for repeated offenders and laid down stricter punishment for persons convicted under this section. Death penalty was also introduced in this section as the punishment along with life imprisonment without parole.
Earlier, section 376A (intercourse by a man with his wife) provided for a punishment of imprisonment for a term, which may extend to two years. After the 2013 amendment, punishment for sexual intercourse by a husband upon his wife during separation without her consent (section 376B, substituting section 376A) was increased to seven years, with a minimum punishment of two years.
Code of Criminal Procedure, 1973 (CrPC)
Section 154 (1) that 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 woman police officer or any woman officer. It also added that in case of a woman who is temporarily or permanently mentally or physically disabled and alleges commission or attempt of an offence under section 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E or section 509 of the Indian Penal Code, 1860, such information shall be recorded by a police officer, at her residence or at a place of her choice, in the presence of an interpreter or a special educator. Along with this, such information shall be video-graphed and her statement before the Magistrate under section 164 CrPC shall be recorded as soon as possible by the police officer.
Section 164(5A) was inserted by the Criminal Law Amendment Act 2013, which makes it mandatory for recording of statement of the victim/survivor by the Judicial Magistrate, as soon as the commission of the offence is brought to the notice of the police.
An explanation was added to section 197(1), CrPC to the effect that it would not be necessary to seek prior sanction from the Appropriate Government for prosecution of a public servant for any of the offences of sexual abuse. This is for the obvious reason that the section 197 is intended to protect public servants from malicious prosecution for acts done in the discharge of duties. It cannot be argued by any stretch of imagination 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.
Section 375C, inserted by the Criminal (Amendment) Act 2013, makes it mandatory for all public and private hospitals to immediately provide free first aid or medical treatment to victims of acid attack and rape, and to immediately inform the police of such incident.
Indian Evidence Act, 1872
A new section 53 A was inserted by the Criminal Law Amendment Act 2013 which deals with ‘evidence of character or previous sexual experience’. As per this section, in a prosecution for an offence of rape, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the question of such consent or quality of consent.
The existing section 114A was substituted by a new one stating that in a prosecution for rape under clauses (a) to (n) of section 376(2) IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
The proviso to section 146 was substituted with the existing one to state that, in a prosecution for rape, it shall not be permissible to adduce evidence or to put questions in the cross examination of the victim as to the general immoral character or previous sexual experience of such person with any person for proving such consent or quality of consent.
Rape Laws in other Countries:
United States of America:
Rape is sexual intercourse that is forced on another without the person’s consent or against the person’s will. This act is criminalized throughout the United States, but the legal term for it varies from state to state. Some states label this crime as rape, while others refer to it as sexual assault, sexual battery or criminal sexual penetration. Regardless of what a state calls this offense, however, most agree on the definition as sexual penetration or sodomy without consent. Sexual penetration is defined in most, if not all, states as penetration of the vagina with a body part or an object. Sodomy is defined as oral sex – contact between the mouth and penis or female genitalia – or penetration of the anus with a body part or object. Heavy petting or other unwanted sexual touching that does not involve penetration usually does not constitute rape or criminal sexual penetration. It is still is a crime but considered less serious than one involving penetration. This lesser crime often is referred to as criminal sexual contact, molestation or sexual battery.
Sentences for rape can range from one year to even life in prison, depending on the provisions of each state’s sentencing statute or sentencing guidelines, the victim’s age or status, and the circumstances of the crime. Some states require a minimum prison sentence or require the court to impose a prison sentence without probation or early parole. In other states, the judge may have some discretion on the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation rather than in prison.
The age of consent to any form of sexual activity is 16 for both men and women. The age of consent is the same regardless of the gender or sexual orientation of a person and whether the sexual activity is between people of the same or different gender. It is an offence for anyone to have any sexual activity with a person under the age of 16. However, Home Office guidance is clear that there is no intention to prosecute teenagers under the age of 16 where both mutually agree and where they are of a similar age. It is an offence for a person aged 18 or over to have any sexual activity with a person under the age of 18 if the older person holds a position of trust (for example a teacher or social worker) as such sexual activity is an abuse of the position of trust. The Sexual Offences Act 2003 provides specific legal protection for children aged 12 and under who cannot legally give their consent to any form of sexual activity. There is a maximum sentence of life imprisonment for rape, assault by penetration, and causing or inciting a child to engage in sexual activity.
In each UK country, a man would commit rape if he intentionally penetrates with his penis the vagina, mouth or anus of another person, male or female, without that person’s consent or if they are under 13, as young people aged 12 and under are not legally able to give consent to any sexual activity. This particular sexual offence can only be committed by a man. A woman cannot be charged with the offence of rape as this is defined as penile penetration, but she could be charged with another offence such as causing a person to engage in sexual activity without consent, sexual coercion or assault, or assault by penetration. These offences may not all apply in each different UK country.
One of the important lacunas is that Death Penalty was not included as a punishment for rape under section 376 of the Code neither in The Justice Verma Committee report nor the act or ordinance. Instead, the court held that Death Penalty should be awarded only in “Rarest of Rarest case”. Another major criticism received by this act was that the act did not include the Political Reforms Recommended by the Justice Verma Committee i.e. disqualification of persons with pending criminal proceedings to contest from election and resignation of elected members in case of a criminal charge. The offence of marital rape was not included in the act which is now emerging as a serious threat to the society. Thus the Criminal Law Amendment Act, 2013 was a cornerstone in the history of the Criminal Legal system, as it fixed the emerging threats in the society by way of introducing new offences and increasing the punishments to reduce the crime rate. But the society wants the punishments to be more heinous to completely eradicate this violence against women in this society.