“CRITICAL ANALYSIS OF CRIMINAL LAW ( AMENDMENT) ACT, 2013”
Author:- Ankur Kumar Pandey, ICFAI University, Dehradun
Co-Author:- Surbhi, ICFAI University, Dehradun
ISSN: 2582-3655
ABSTRACT
This paper will critically analyze the criminal law amendment Act 2013 which has been brought to the law after a horrific incident that shaken the soul of the nation.
The vicious Delhi gang rape shook the conscience of the whole nation which lead the nation to demand change in the existing law of sexual offense. Keeping in mind the rate of sexual offence against women this amendment was need of time in order to provide safety to women. But parliament missed to bring some genuine change which was much needed .this paper would focus upon some missed opportunities and some hasty and ridiculous decisions of parliament related to sexual offenses in India, Such as why the offense of rape was not considered as gender-neutral? Why marital rape was not criminalized? Why there is no law for sexual offenses against men?
According to NCRB data, there is a 7% rise in crime against women i.e., 62.4% per lakh in 2019 in comparison with 58.8% in 2018.
However, it one of the most progressive changes that have been brought to criminal law. This paper will be discussing the amendment made to sexual offences in the Indian penal code. In this paper the insertion of new provisions and the amendment to the existing provisions will be discussed in detail.
KEYWORDS: – critical analysis, gang rape, missed opportunity, gender-neutral, crime rate.
Introduction
The Criminal Law (Amendment) Bill, 2013 is also called the Anti-Rape Bill. The Act came into force on 3rd February 2013 after the gang rape took place in New Delhi on 16th December 2012. Taking place of such an Incident indicated that there is a need to reform laws related to sexual offences against women.
The Act includes the insertion of new provisions and the amendment to the existing provisions brought to IPC in order to provide a sense of safety to women of India.
1) Criminal Law (Amendment) Act, 2013
The Criminal Law Amendment, Act, 2013 was passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013. On 2 April 2013, the president of India gave his assent to this bill and it shall be deemed to have come into force on the 3rd day of February 2013.
Reasons for the Enactment
The gang rape that led to the death of the victim was the reason behind the enactment of this act. The act is one of the important changes that has been brought to the law.
The Fact of Nirbahaya Case / 2012 Delhi Gang Rape Case
A country-shaking incident, gang rape happened in Delhi on the dark and cold night of 16th December 2012. The victim was traveling in a private bus with her friend. And there were 6 more people on the bus, including the bus driver who raped the woman in the moving bus and beaten and tortured her and her friend. After that, the rapist threw both of the victims out of the bus to die who was partially clothed.
After an investigation by the Medical investigator, it was cleared that the victim was inserted an iron rod inside her private parts and it caused huge damage and infection to her internal organ.
Trial, Verdict, and conviction
After the death of the victim, the whole nation was demanding speedy trial and justice for the sake of the dead victim.
After getting arrested within one day of the commission of the crime, five accused were tried in special fast-tracked court by an additional session judge while the sixth accused was tried by the Juvenile Justice Board because of being juvenile at the time of the commission of offence.
One of the accused named Ram Singh committed suicide in lock up during the trial. The other accused were charged under 13 section of IPC, some of them are : murder ( section 302), attempt to murder ( section 307) gang rape ( section 376 (2)(g)), unnatural offence ( section 377), 34 ( common intention) , destruction of evidence ( section 201) etc.
The accused who was juvenile at the time of the crime was punished for rape and murder under the juvenile justice act and given imprisonment of three years with a reform facility.
The other 4 accused were punished with the death penalty who was hanged in Tihar jail in the early morning of 20th March 2020.
3) The justice Verma committee:-
A committee of three members headed by justice J S Verma was constituted to recommend amendments to criminal law to bring effective change to law related to sexual offences against women and enhance punishment for accused of sexual offenses.
The key objective of the committee was to recommend possible amendments for quicker trials and harsher punishment for a vicious offense against women. It recommends the amendment related to provisions of rape, marital rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, etc.
The report of recommendation consisted of 630 pages which were framed in 29 days and it was appreciated, applauds, and welcomed by National and international human rights organizations, citizens and political parties. But the parliament overlooked the progressive recommendation of the committee and this failure of parliament is the reason behind the criticism of the criminal law amendment act, 2013.
Recommendation of the committee-
- In case of rape–
The committee had not recommended the death penalty for rapists. It recommended rigorous imprisonment for seven years that may extend to life.
It suggested that rape causing death or a ‘persistent vegetative state’ should be punishable with rigorous imprisonment of 20 years that may extend to life, for gang rape it suggested rigorous imprisonment of 20 years that may extend to life and gang rape causing death should be punished with life imprisonment.
- In case of other sexual offenses-
Keeping in mind all the offenses against women, the committee recommended punishment with imprisonment up to seven years for voyeurism, Imprisonment up to three years for stalking, imprisonment up to seven years for acid attack, rigorous imprisonment of seven years that may extend to 10 years for trafficking.
- In case of Registering complaints and medical examination-
Committee recommended that registry of every single FIR of rape must be done by the police and if any civil society discovers the taking place of any rape case then he must report the case of rape to the nearest police station. If any officer denies registering an FIR of rape or attempts to terminate its investigation, shall be punished as prescribed in law.
- Bill of rights of women-
Committee recommended that A separate bill for the right of women should be framed that provides a life with dignity and security to women.
4) Amendment made to the existing Provisions of the Indian Penal Code, 1860
The Criminal Law (Amendment) Act, 2013, amended as well as inserted new sections in the IPC regarding various sexual offenSes like acid attacks, sexual harassment, voyeurism, stalking has been inserted into the Indian Penal Code.
i) Sexual Harassment
It is given in section 354 A of the IPC. sexual harassment is unwelcome sexual advances, requests for sexual favor, or other unwelcome sexual conduct that is offended, humiliated, or intimidated.
The essentials of sexual harassment stated in the case of Vishaka v. State of Rajasthan[1] are as following –
- Physical contact and advances involving unwelcome and explicit sexual overture.
- demanding or requesting sexual favors; or
- Showing pornography against the will of a woman; or
- Making sexually colored remarks, shall be guilty of offense of sexual harassment.
Provisions before amendment
The provision related to sexual harassment was mentioned in the law before the amendment. But there was no clear punishment laid down in the act for the commission of such offence.
Provisions after Amendment
Sexual harassment has been considered a gender-specific crime. a man who makes physical contact involving unwelcome sexual overture, or forcefully shows any women pornography, or demands or requests any woman for sexual favour, shall be guilty under section 354A. and he shall be punished with imprisonment of three years. A man Making sexually colored remarks will be punished with imprisonment of one year.
- Assault or use of Criminal Force to a woman with intent to disrobe
This offense is mentioned in section 354 B of IPC.
Provisions before amendment
Before the amendment, the provision that dealt with this offence was not mentioned in the IPC. The act was given under Section 354 and was punishable with imprisonment of 2 years.
Provisions after Amendment
Any man who assaults or uses criminal force against a woman or abets the commission of such offence with the intention to disrobe or compel her to get naked in any public place shall be punished with imprisonment of three years that may extend to seven years.
iii) Voyeurism
This offense is given in section 354 C of IPC. If a man watches a woman engaging in private activities, where the woman have no expectation of being watched then he will be guilty of committing the offence of voyeurism.[2]
Provisions before amendment
Before the amendment, The provision that dealt with this offence was not given in the IPC. But in the information technology act, 2000, it is a crime irrespective of gender and punishable with imprisonment of 3 years.
Provisions after Amendment
If any man commits the offence of voyeurism, shall be punished with imprisonment of one year that may extend to three years on the first conviction, and on other conviction, shall be punished with imprisonment of three years that may extend to seven years with fine[3].
iv) Stalking
this offence is given in section 354 C of the IPC. any man who follows a woman and contact or attempt to contact for personal interaction repeatedly, despite a clear indication of disinterest by such woman or monitor the use by a woman of the internet, email, or any form of electronic communication, then the man will be guilty of stalking[4].
Provisions before amendment
Before the amendment, the provision that dealt with this offence was not given in the IPC.
Provisions after Amendment
Any man who is guilty under this offense shall be punished with imprisonment of three years on first conviction and with imprisonment of five years on the subsequent conviction. However, there is some exception to this offense, like if the act was pursued under any law, reasonable or justified or the act was done with the responsibility of prevention of some crime
v) Rape – Section 375 and 376
In the case of Rafiq v. State of U.P[5], justice Krishna Iyer Stated that “a murderer kills the body, but a rapist kills the soul”. The Parliament has broadened the scope of rape by inserting some more provisions to the act under the criminal law amendment act, 2013.
Provisions before amendment
Section 375 – 376 dealt with rape. Before the amendment, medical procedure and intervention were not considered as an exception in the definition of rape and only penile-vaginal intercourse was used to come under the ambit of rape.
Provisions after Amendment[6]
A man is said to commit rape if he:-
- Penetrates his penis to any extent, into vagina, urethra, mouth, or anus of any woman, or makes her do so with him or any other person, or:
- Inserts, to any extent, any object or body part, other than the penis, into vagina, urethra, or anus of any woman, or makes her do so with him or any other person, or:
- Manipulates any body parts of woman to cause penetration into vagina, urethra, or anus of any woman or makes her do so with him or any other person, or:
- Applies his mouth to the vagina, urethra, or anus of any woman or makes her do so with him or any other person.
Punishment:-
- Any man who has been convicted of rape shall be punished with the rigorous imprisonment of seven years which may extend to life.
- If any person being a police officer, medical officer, public servant, member of armed force, jail officer, has been convicted of rape shall be punished with imprisonment of 10 years that may extend to life.
- If any man commits rape that led to the death of victim or puts the victim into a vegetative state, shall be punished with life imprisonment that may extend to life.
- Any man involves in gang rape, shall be punished with at least 20 years of imprisonment.
Exception to this section-
- Marital rape is an exception to this section unless the wife is under the age of 15 years.
- The Exception has been made for medical procedures or interventions.
In the case Lillu @ Rajesh vs state of Haryana[7] , SC criticized the two-finger test of victims for inquiry of rape and stated that the center needs to come up with some other medical test that does not violate the dignity of victims.
Gender-neutral law-
In Indian law, rape is considered a gender-specific offense and it is an assumption that only a man can be committing sexual offenses against women but in recent times we can easily see that rape is a crime that can be done against any gender that is man, women, homosexual and transgender, irrespective of their age, gender, and sexual attitude. Rape done with a person other than a female mostly goes unreported because there is no law in India for their protection against such offense.
So we need to accept the fact that the victim and perpetrator of rape can be of any gender. And the government must come up with a law to provide them equal protection against such sexual offenses.
Around 77 countries of the world have accepted gender-neutral laws against sexual offenses. United States, United Kingdom, Australia are some countries out of the countries having general neutral laws.
Marital rape-
The Decriminalization of marital rape shows the failure of parliament as married women are not protected from their own husbands.
With the passage of time, the increase in the case related to Marital rape can easily be seen, that can’t be ignored and it is worth noticing. According to the report of The National Crime Records Bureau’s (NCRB) in 2019 about 70% of women in India are victims of domestic violence.
This is high time that the legislature should take cognizance of this legal fragility and bring marital rape within the ambit of rape under section 375 of the Indian penal code.
Some genuine recommendations of commitment that was rejected by ordinance-:-
- Committee recommended to criminalize marital rape but The ordinance rejected this recommendation
- The committee recommended that the politician who is facing sexual offenses charges should be restricted from contesting election but the ordinance rejected this recommendation.
- The committee recommended that the senior police and army official should be held responsible for sexual offenses committed by their juniors but the ordinance rejected it.
- The Committee recommended that videography of recording statements of victims should be declared mandatory but the ordinance made it optional.
5) Criticism of the Act
The Criminal Law (Amendment) Act, 2013 has been faced enough criticism by some national and international human rights organizations as well as by women’s rights organizations for not going with some reasonable and justifiable recommendation recommended by the Verma Committee. The Government of India had justified their failure by stating that they have not rejected the suggestions completely, but it can be made to act after proper discussion.
One of the major remarkable criticisms of the Act is its negligence towards the criminalization of marital rape that is one of the serious problems that can’t be ignored against women. Criminalizing marital rape would make it easier for women to get justice in case of marital rape, which violates a woman’s physical integrity and sexual autonomy by compelling her to involve in intercourse against her will.
CONCLUSION
The criminal law amendment act 2013, is one of the progressive steps that has been taken by the Indian government to control or reduce violence against women.
Despite having some flaws, it is one of the major amendments that not only broaden the ambit of rape but also inserted certain offenses in the ambit of sexual offenses, acid attack is one of them. The 2013 Act also expanded the ambit of rape by including oral sex and the insertion of any object or any other body part into a woman’s vagina, urethra, or anus.
The 2013 Act is an appreciable step taken to control or reduce the rate of crime against women. But yet there is some major amendment that needs to be brought under the ambit of sexual offense in order to provide a life with dignity to the women of India. And keeping in mind the rate of sexual offenses irrespective of gender, the sexual offence must be made a gender-neutral offence in India.
After introducing the act, the most essential thing which is required is proper implementation of this act.
[1] ishaka v. State of Rajasthan and Ors. AIR 1997 SC 3011
[2] Supra note 15
[3] Section 7, criminal law amendment act, 2013
[4] Supra note 7
[5] Rafiq v. State Of U.P. 1981 SCR (1) 402
[6] Section 9 of criminal amendment act, 2013.
[7] AIR 2013 SC 1784.