Barbarous Rape Incident In India Nirbhaya Case
The law of rape is not just a few sentences. It is a whole book, which has
clearly demarcated chapters and cannot be read selectively. We cannot read the
preamble and suddenly reach the last chapter and claim to have understood and
applied it. {1}.
Introduction: At the beginning of human civilization all laws were religious laws, i.e., they expressed the will of some superhuman authority. The spirits, the gods, or God wanted human beings to behave in a certain way and promptly punished any disobedience. The laws, therefore, practically enforced themselves.
The earliest known sex laws were no exception to this rule. Originally, there was no difference between sin and crime. Sexual offenders were both sinners and criminals, and their punishment was certain. Where human law enforcement was necessary at all, it merely carried out divine orders.
As a matter of fact, this was the prevalent view throughout most of human history. For thousands of year’s religious belief remained the foundation of all law. On the other hand the sex law was based on rational and empirical grounds. As a result, many sexual acts that once had been crimes were now found to be permissible {2}.
However, sexual assault in any form is often a devastating crime. Accused can be strangers, acquaintances, friends, or family members. Assailants commit sexual assault by way of violence, threats, coercion, manipulation, pressure or tricks. Whatever the circumstances, no one asks or deserves to be sexually assaulted. A wide range of sexually violent acts can take place in different circumstances and settings.
These include:
Sexual trafficking uses physical coercion, deception and bondage incurred through forced debt. Trafficked women and children, for instance, are often promised work in the domestic or service industry, but instead are usually taken to brothels where their passports and other identification papers are confiscated. They may be beaten or locked up and promised their freedom only after earning- through prostitution- their purchase price, as well as their travel and visa costs {5}.
However, according to Prof. N.V. Paranjape {6}, sexual offences in India have been categorized into the following forms which has clearly been enshrined and punishable under Indian Penal Code. They are:
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.
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 {15}. The Act introduced unprecedented provisions in the Indian Penal Code which criminalizes 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 {16}.
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 come 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.
This incident generated huge international coverage and was condemned by the United Nations Entity for Gender Equality and the Empowerment of Women, who called up the Government of India and Delhi to do everything in their power to take up radical reforms and the like to make women’s lives safer and secure {17}.
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.
In a meeting at UN Women, Justice Verma stated that, to ensure its success, it is important that the Act be implemented with dedicated human and financial resources, and clarity in roles and responsibilities. A law is only as good as the systems and individuals that implement them. Mindsets and attitudes need to change, women can truly be respected equally and value in society {18}.
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 {20}. Similar protests took place in major cities throughout the country demanding stricter laws and speedy justice.
The gang rape in Delhi took place on the night of 16th December 2012. The victim, a 23 year old physiotherapy intern took a ride home in a private bus that night, with her friend. There were six other people on the bus, including the driver. The victim and her friend were beaten up when they raised their suspicions as to route of the bus to the destination. The woman was later raped by all the men while the bus was moving and her friend was beaten unconscious {21}. After the beatings and rape, both the victims were thrown out of the moving bus by their perpetrators and left on the side of the road, partially clothed.
Later, a PCR van arrived at the scene after receiving a call from a passerby. The victims were taken to the Safdarjung Hospital in Delhi for treatment. Medical investigation of the woman suggested she was penetrated by a blunt object, probably a rod-like object that had caused extensive damage to the internal organs of the victim.
Two blood-stained metal rods were retrieved from the bus on police inspection, which the medical staff later confirmed to be the object used for penetration that had caused serious injuries to the victim’s uterus, genitals and the abdomen. Within a day of the commission crime, arrests were made by the Delhi police in the case and all the six accused including a juvenile were arrested {22}.
There was a huge demand for speedy trial and immediate prosecution in the matter. While five of the accused were tried for the crime before the Additional Sessions Judge in the Special Fast Track Court, the sixth accused, who was a juvenile at the time of the crime, was tried before the Juvenile Justice Board. However, during the trial, one of the accused, Ram Singh was found dead in his prison cell. The remaining accused were booked for rape, murder, kidnapping, destruction of evidence, and the attempted murder of the woman’s male companion under Sections 120-B, 365, 366, 307, 376 (2)(g), 377, 396, 302, 397, 201 and 412 of the Indian Penal Code, 1860.
Conviction and Sentencing
The juvenile defendant was found guilty of rape and murder of the victim under the Juvenile Justice Act by the Juvenile Justice Board on the 31st of August 2013. He was sentenced to three years imprisonment in a reform facility. The remaining four accused, after the death of Ram Singh, were found guilty of rape, murder, unnatural offences and destruction of evidence by the fast-track court. They were sentenced to death penalty by the court on 13th September 2013. After mercy plea rejection from President of India, on 20 March 2020, at 5:30 AM four adults convicts were executed by hanging at Tihar Jail.
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.
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 {24}.
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 {25}.
Recommendations of the Committee
The Justice J. S. Verma Committee recommended 20 years imprisonment for gang-rape and life imprisonment for rape and murder but refrained from using the term death penalty though there was public outcry to sentence rapists with death sentence following the brutal gang-rape and murder of a 23-year-old medical student in Delhi on December 16, 2012.
However, the ordinance passed by the Cabinet went for a harsher punishment for a rapist- a minimum of 20 years imprisonment for rapists and even death penalty in extreme cases.
Verma panel recommended criminalization of marital rape but the ordinance rejected it {30}.
The Justice J. S. Verma Committee recommended restriction of politicians facing sexual offence charges from contesting elections. Ordinance rejected this recommendation.
The panel recommended that the senior police or army officials be held responsible for sexual offences committed by their junior but the ordinance rejected it.
The Justice J. S. Verma Committee wanted to make videography of recording statement from victim mandatory but the ordinance made it optional.
The Justice J. S. Verma Committee wanted the definition for sexual offences as rape but the ordinance replaced it with the word sexual assault.
The Criminal Law (Amendment) Act, 2013 has been known 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 recognises new offences like acid attacks which earlier lacked a specific provision and definition in the Code.
The definition of rape has been amended to include not just vaginal intercourse but the insertion of an object or any other body part into a woman’s vagina, urethra or anus, and oral sex. This responds to a longstanding demand of women’s rights groups.
The issue of rape by different means was highlighted in the Delhi gang-rape case, where an iron rod was inserted into the young woman’s body. Despite its flaws, the Act bears a progressive insight to make an impact and fight a battle against violence against women.
However, the Act by itself is not sufficient to redress and seek justice for violence against women. For this, the Government of India needs to make colossal investments in building necessary infrastructure to deal with the crimes supplemented by meaningful reforms in judiciary (building fast track women’s courts, more engagement of women lawyers, women doctors to examine victims) and modernisation of the police system across whole of India.
The 2013 Act should be viewed as a mere placeholder in the ongoing struggle against sexual and gender-based violence in India. The most overwhelming prospect is the overhaul of prevailing attitudes to rape and sexual offenses in a populace ostensibly grappling with moral confusion, as economic modernization necessitates far-reaching changes in gender roles while social attitudes remain steeped in moral conservatism and misogyny.
There are already ample laws prescribing deterrent punishment for offences against women. What is actually required is a concrete legislation, this was however, partially achieved through the passing of the Criminal Law (Amendment) Act, 2013; to infuse sensitivity, understanding and more significantly, the mindset among police, executives to implement the laws more in spirit than in letter. Only then deterrent punishment can be awarded in crimes against women {31}.
Responding to the passage of the Bill in the Lok Sabha on July 30, Minister of State for Home Affairs Kiren Rijiju said that the POSCO was gender-neutral while the new law pertains to girls specifically. The Criminal Law (Amendment) Bill 2018 will amend relevant Sections of the IPC, Cr.P.C and also POCSO Act.
The Criminal Law (Amendment) Bill 2018 enhances the minimum sentence for offence of rape against girl children of all three age categories. Under new law, if the victim is under 12 years of age, the culprit faces minimum sentence of 20 years, up from 10 years previously. The maximum punishment is death penalty. In the cases of gang rape of child under 12, the minimum punishment is life sentence (earlier 20 years) while the maximum is death penalty.
In cases of child aged between 12 and 16, the offence of rape is punishable with the minimum sentence of 20 years, up from 10 years. Maximum punishment in such cases is life imprisonment. If a girl aged between 12 and 16 is gang raped, the convict faces minimum punishment of life sentence. If the victim is aged between 16 and 18, the offence of rape is punishable with minimum punishment of 10-year jail term and maximum is life imprisonment {33}.
Repeat offenders will be punished with life imprisonment or death. The Bill provides for time-bound investigation in cases of rape of girl children. The investigation into rape of a child must be completed within two months. The case is to be tried in a fast track court. The Bill states that any appeal against a sentence by the trial court must be disposed of within six months. Accused is not entitled to anticipatory bail, under new law, in offences of rape of child less than 18 years of age.
The recent incidences of rape in Kathua {34} and Unnao {35}, have re-ignited the fading memories of December 16, 2012. The most repulsive incidents of gang rape of a 23 years old physiotherapy student marked a watershed development in the post-independent India, when the society came in direct confrontation with the mighty system. In a country where rape culture was not only tolerated but also patronised, the civil society not only expressed its anguish at the existing status-quo, but aggressively rallied to battle the system. The massive public outcry and agitation post-nirbhaya, not only ensured radical amendments {36} in the criminal laws but also awakened the State, society and individual to recognise rape and crime against women as a mainstream societal issue.
Despite stringent laws passed post-nirbhaya, the collective conscience of the society was taken aback with Kathua rape case, where an 8-year-old girl fell prey to the savage lust of a gang, faced brutal sexual assault and murdered, to give vent to their pervert sexual appetite, and sadistic pleasure. These horrific incidences and the alleged political support to the perpetrators were reminder of the fact that rape culture in India has not only failed to wane but looms large in our society where such crimes are committed with impunity. As a consequence, to the extensive press reporting and public uproar, the government was prompted to take ‘corrective measures’. The cabinet approved the Criminal Law (Amendment) Ordinance, 2018 {37} (the Ordinance).
The Ordinance was signed by the President of India and it came into force on April 21, 2018. The Ordinance enhanced punishments (including capital punishment) for offenders convicted of raping minors, and wide ranging changes were introduced in procedural laws. As a law reform exercise the state adopted the same methodology based on impulses rather than sound legal prepositions and deliberations {38}. In the meanwhile, to fulfill the constitutional requirement, the Criminal Law (Amendment) Bill, 2018 (hereinafter the Bill) was introduced in the Parliament to replace the Ordinance with an Act of Parliament.
The Bill was passed by Lok Sabha on July 30, 2018 and Rajya Sabha on August 6, 2018. Thereafter it received the Presidential assent on August 11, 2018 and came into force as the Criminal Law (Amendment) Act, 2018 {39} (CLAA) from April 21, 2018. The CLAA, which replaced the Ordinance with a retrospective effect, amends four central legislations namely: The IPC, 1860 {40} the Code of Criminal Procedure, 1973 (Cr.P.C) {41} the Indian Evidence Act, 1872 (IEA) {42} the Protection of Children from Sexual Offences Act, 2012 (POCSO) {43}.
Appearing to be a knee jerk reaction to public protests, the present legislation suffers from several drafting ambiguities which have left an ample scope for the exercise of judicial discretion while interpreting the law in future. The paper seeks to examine various provisions of the CLAA in the light of ground realities of the existing criminal justice system. The author through this paper has tried to conduct an objective inquiry about the engagement of law with social problems relating to sexual offences, and critique the nature of solutions offered by the state (with reference to CLAA). Further the author has also tried to look into the hyped state narrative of deterrence sought to be created by extending death penalty to new offences, and changes in the procedural laws.
The former class of rape lays down the general offence of rape and invites a lesser punishment. Whereas, the latter class of rape provided under section 376 (2) lays down 14 circumstances where the nature of rape is considered more serious due to the presence of an aggravating factor {44} and therefore, has higher punishment. Any man who commits an aggravated form of rape is liable for prosecution u/s 376 (2) which have a minimum punishment of 10 years which may extend to life imprisonment.
Whereas any man who commits an act, on a woman, which falls within the definition provided under section 375, IPC is liable for prosecution u/s 376 (1), provided it doesn’t fall in any of the clauses of section 376 (2). Prior to the CLAA, minimum punishment for rape simplicities was 7 years, whereas maximum punishment was life imprisonment. However, the CLAA has increased the minimum sentence from 7 years to 10 years. On the face of it the amendment appears to be a strong provision against rape.
However, on a careful look, one can appreciate its real implications. The worrisome aspect of the new law is the fact that it obliterates the distinction between rape simpliciter and aggravated form of rape. Now logically speaking the presence of any aggravating factor, as enumerated in 376 (2) from clause (a) to (n), should have warranted a greater punishment.
But, post-CLAA, both classes of rape will invite same punishment. There appears to be no rational basis as to why rape simpliciter should have the same punishment as awarded in aggravated forms of rape. Moreover, when the scheme of IPC itself recognises classification based on aggravated nature of offence, then punishment should also be in proportion to such classification. Whether this oversight is intentional or result of a ham-fisted drafting is difficult to say but has wide and serious ramifications.
With regard to rape of a woman under 16 years of age, section 376 (2) clause (i) {45} has been deleted; and sub-section (3) {46} has been inserted which provides a minimum punishment of 20 years which may extend to life imprisonment (which means the remainder of that person’s natural life). However, the constitutional validity of the minimum imprisonment of 20 years provided under section 376 (3) is questionable when judged on the ground of proportionality.
At a time when sexual experimentation among adolescents is not an uncommon phenomenon, the severity of the minimum 20 years’ imprisonment, transcends the limits reasonableness and fairness. Let’s assume a girl who is under 16 years of age enters into a consensual physical relationship with a man (18 years’ age).
This being a case of statutory rape, once the fact that the prosecute is below the age of consent (18 years in India), is proved, the question of consent becomes irrelevant and sexual intercourse with her amounts to rape irrespective of her consent {47}. But a sentence of ‘20 years’ imprisonment to the boy, in the absence of judicial discretion (which existed prior to 2013) {48} appears to be unreasonable and too harsh.
The judge will be mandatorily required to sentence the man 20 years’ imprisonment, who will eventually get released at the age of 38 years or may never get released in the event of life imprisonment. The law will also create counterproductive results when the offender is a minor. For instance let’s assume that the offender is 17 years of age, after the enactment of the Juvenile Justice Act (Care and Protection of Children), 2015 {49} (hereinafter JJA) a juvenile may be tried as an adult {50} and may be awarded imprisonment under the provision of IPC (except death and life imprisonment) {51}.
In view of the lacunas in the practical implementation of the JJA and shoddy compliance by law enforcement agencies is always a cause of concern. Various experts have red flagged ambiguities in the JJA which is resulting in abrogation of justice in cases pertaining to juveniles in conflict with law {52}. In such cases, a juvenile in conflict with law may be awarded a sentence of 20 years. This sentence, which is not a short period of time, may cause injustice to a juvenile and frustrate the object of reformation.
While the amendment of 2013 also introduced a mandatory minimum sentence of 10 years, from there to mandatory sentence of 20 years as introduced by the CLAA, without any credible research or justification is a substantial increase. Senior Advocate Indira Jai Singh argues that the mandatory nature of the offence takes away the discretion of the judge. Every sentence must fit the crime {53}. Absence of judicial discretion would make sentencing process more rigid and static. A straight jacket sentencing policy without any scope for judicial discretion in awarding sentences would hamper individualisation of sentencing.
New offences after Amendment 2018 for rape and gang-rape of minor’s
The CLAA creates three new offences (ss. 376AB, 376DA, 376DB, IPC). These offences cater specifically to the rising cases of rape against minors. These new offences make gradation in terms of severity and punishment for raping minors. Section 376AB creates a new offence where minimum punishment for raping a woman less than 12 years of age is 20 years imprisonment which may extend to life imprisonment (which means the remainder of that person's natural life) and maximum sentence may be that of death {54}. Whereas, section 376DA and 376DB {55} are the extension of provisions relating to gang rape.
These provisions have been carved out as to deal with incidences of gang rape where a woman is under 16 years of age or under 12 years of age. Section 376 DA of the IPC has introduced a mandatory sentence of life imprisonment for gang raping of a girl less than 16 years of age. Whereas, section 376DB of the IPC which deals with gang rape of a girl under 12 years of age, comes with enhanced punishment of life imprisonment (which means the remainder of that person's natural life) or even death.
The concept of mandatory sentence provided under section 376DA is a curious case. Section 376DA has been added to the IPC by CLAA to deal with cases of gang rape of a girl less than 16 years of age, and it provides for a mandatory sentence of life imprisonment.
The propriety of mandatory life imprisonment is questionable on the grounds of proportionality. Firstly, mandatory sentence of life imprisonment, in the absence of judicial discretion will curtail individualisation of justice based on circumstances of the offender and the offence. Secondly, judges in view of mandatory nature of sentence may demand a higher standard of proof before awarding a conviction; this might have a negative impact on conviction rates.
The stringent punishment introduced by the CLAA for these new offences may run counterproductive to the reportage of child marriages in India. For instance, it is a well known fact that child marriage is a common phenomenon in India. Despite being illegal, incidences of child marriage (10-17 years age group) in Rajasthan, Haryana, Bihar, and West Bengal; North East states like Tripura, Meghalaya and Assam remain alarmingly high {56}.
Moreover, a sizeable percentage of child marriages fall under the age group of 10-14 years. According to 2011 Census, 2.9% of the national population (girl) was married in the age group of 10-14 years, with highest incidence in Rajasthan (4.2%), Maharashtra (4.2%), Goa (3.9%), and Gujarat (3.7%) {57}
With the introduction of capital punishment in rape cases of woman under 12 years of age and ground reality of prevalent child marriage of girls under 12 years of age, there is a likelihood of underreporting of rape cases where a victim is married.
In other words, no married girl under the age of 16 or even 12 would file a rape case against her own husband, since the punishment in such cases may lead to life imprisonment or even death. It would have been desirable hope that practical issues prevalent in Indian society were taken into consideration before deciding the quantum of punishments.
Another problem which the CLAA possess is with respect to its implications on various provisions of the JJA. The mandatory sentencing under section 376DA and 376DB may run counter to section 21 of the JJA. Section 21 of the JJA prohibits the award of life imprisonment and death sentence to a juvenile in conflict with law.
Whereas, section 376DA provides for a mandatory sentence of life imprisonment (which shall mean the remainder of person’s natural life); section 376DA provides the life imprisonment as its minimum and death sentence as is maximum sentence. In such a case, a juvenile cannot not be sentenced either under section 376DA or 376DB since both provisions have a mandatory minimum sentence which cannot be given to a juvenile in conflict with law by virtue of section 21, JJA. Then the question arises if not under IPC then what will be the quantum of sentence, that too, in the absence of any law? The CLAA is silent on this point.
The provisions of gang rape with regard to minors are the reiteration of the general provision of gang rape provided under section 376D, IPC. The provisions of gang rape are worded in gender-neutral terms with respect to the perpetrator.
Thus it is possible, on the basis of literal interpretation, to convict a woman of raping a minor as part of a gang. However, a woman who happened to be a member of a group and has facilitated the commission of rape, cannot be held guilty of gang rape, as she cannot commit the offence of rape {58} The Supreme Court in Priya Patel case {59} held that the expression ‘in furtherance of their common intention’ in gang rape relates to intention to commit rape and it is inconceivable that women can rape another woman {60}.
Such narrow interpretation of Supreme Court disregards the rule of joint liability which imputes culpability on the ‘associates’ of the wrong-doer by mere participation in the commission of the offence regardless of their nature or extent of participation. The gender neutral culpability in gang rape cases also found support in Justice Verma Committee report {61} which recommended that in cases of gang rape, the punishment shall be awarded to each perpetrator regardless of gender {62}.
However, no such change was incorporated by the 2013 amendment. Similarly, the CLAA has also failed to plug this loophole. Soon after the promulgation of the Ordinance one such case w as reported in newspaper, where a women helped her boyfriend rape her 13 year old niece {63}.
In light of the existing SC judgments on the issue it’s to be seen as to what nature of liability is attributed to the woman perpetrator who assisted in the commission of gang rape {64}.
Whereas, section 376A dealt with cases where the death or vegetative state of the victim was caused in the course of the commission of rape, and section 376E covered cases of habitual offenders. The CLAA, has extended the death penalty to all cases of rape where the age of the victim is under 12 years of age. From a long time, there has been a consistent demand from public that rape being a heinous crime should have death penalty so that it will create a deterrent effect on growing incidences of sexual assault.
In a country, where death penalty is perceived as a sina-qua-non to deterrence, the misplaced perceptions about the deterrent nature of death penalty found support in the legislative enactments on Criminal law in 2013 and the recent CLAA.
At a time when studies across the world have questioned the efficacy of capital punishment in deterring crimes and evolving global consensus towards its abolition, the retention and extension of death penalty in India is a matter of distress. The Supreme Court despite upholding the constitutional validity of death penalty has in plethora of cases limited its scope to rarest of rare cases {65}.
The support to the retention and extension of death penalty to rape cases should been objectively analyzed. Before advocating for death penalty or any other stringent punishments under criminal law it is important to understand and objectively appreciate the utility and implication of such punishment. The solutions offered by the state in penal statutes should be a kind of remedy which is not worse than the disease. It must be kept in mind that death penalty is permanent in nature and cannot be reversed. One wrong decision of a judge would lead to extinguishment of the accuser’s life.
Since any liberal or flexible appreciation of evidences would lead to grave consequences on accuser’s life. In such an event, judges are likely to expect a much higher proof of standard of proof. This may result in further lowering the rate of conviction. Besides if the rapist knows that rape carries death penalty he may be tempted to kill the victim so that she will not be available to give evidence against him.
The Malimath Committee also rejected the idea of death penalty for rape cases and called for procedural amendments which results in certainty of punishment rather than quantum of punishment as a real deterrent {66}. Unfortunately, large number of rape cases end up in acquittal {67}.
Another practical aspect which perhaps the law makers either chose to overlook or are oblivious about, is the fact that in substantial number of rape cases involving minors the perpetrators are either from family or the neighborhood.
The NCRB data has revealed that there is an increasing trend of rape cases where the rapist is known to the victim. For example, the crime statistics of NCRB reveals that out of 38,947 cases of rape reported in 2016, in 3891 cases the perpetrator were either the father/ brother/ grandfather/son, any other close family member or a relative. Providing death penalty in such cases will only lead to underreporting of the crime. Senior advocate Indira Jaisingh has argued that given that most child abuse occurs within the family by a known person, a victim will either be reluctant to report the crime or forced to withdraw the complaint, knowing it could result in death, especially in cases where a family member is involved.
The Supreme Court of India on several occasions has reiterated that life imprisonment means sentence of imprisonment running throughout the remaining period of a convict’s natural life {68}. However, with the introduction of new phraseology the interpretation of the legislative intent with respect to life imprisonment under section 53 becomes problematic and confusing. If the legislature intended to mean that life imprisonment means imprisonment for convict’s remaining natural life, then what was the need to qualify the term ‘life imprisonment’ with the use of the phrase remainder of that person’s natural life in 2013?
It may be argued that in 2013, the legislative intent was to clearly and unambiguously declare the ‘unlimited nature’ of life imprisonment in cases of crime against women. Had this been the case and the legislative intent was indeed to clarify the meaning of life imprisonment then why no corresponding amendments were made in section 53, IPC? As a consequence, such apparent inconsistencies in law gives way to judicial law making, where the Courts have to devote considerable amount of time deliberating upon the scope and meaning of an ambiguous provision.
Macaulay, who declared law as a reflection of legislative will with minimum judicial interference, {69} in a letter to Lord Auckland, then Governor-General of India, said a loosely worded law is no law, and to whatever extent a legislature uses vague expression, to that extent it abdicates its functions, and resigns power of law making to the Courts of Justice {70}.
At a time when, when the parliament jealously guards its functional turf against the judicial encroachment, the argument of parliamentary supremacy over law making falls flat in the light of ambiguous laws passed by it.
Similar amendments have been made in the Cr.P.C where the benefit of compensation has been extended to cover rape and gang rape of minor girls below 12 years and below 16 years of age. However, a report document of Ministry of Law & Justice, which conducted a case study on rape prosecutions in Delhi, reported that despite adequate compensatory remedies available, there was inadequate guidance and lack of awareness among prosecutrix about their right to avail compensation {71}.
It further reported that in the entire case study there was only one case where the victim was directed by the court to the Delhi Legal Services Authority for compensation and she was unable to proceed owing to lack of guidance {72}.
Apathy of law enforcement agencies towards investigating rape cases often lead to delays in filling charge sheet, which is often a reflection of faulty investigation. Delay in investigation may lead to tampering of evidence, witness intimidation and subsequently acquittals in trial owing to want of evidence. Prior to the enactment of CLAA, the Cr.P.C provided that 3-month period for the completion of investigation in rape cases involving minor.
The CLAA has reduced this period of investigation from 3 months to 2 months. Further, the CLAA has also reduced this time limit in all offences of rape (including rape, gang rape, and rape of minors under the age of 12 years and 16 years). This is appreciable in a sense that it is another step towards strengthening speedy investigation in rape cases, which often suffer due to delayed investigation by the police. No doubt that delay caused in the investigation process and disposal of appeals are a cause of major concern and dilutes the effect of any stringent law.
The CLAA, by giving a statutory time limit for investigation and appeals in rape cases is a welcome step. However, the CLAA is silent on the consequences which will follow in case the appeal is not disposed of within 6 months or investigation is not completed within 2 months. If the statistics of NCRB are considered, in 2016 there were 55,071 cases for investigation out which in 16,124 cases investigation are still pending from the previous year and 38,947 new cases were reported for investigation {73} As of 2016, with a pendency percentage of 30.3%, there were 16,678 cases which are pending investigation at the end of the 2016.
Every conviction related sentence passed by the trial court is generally appealable to the High Court. Section 374, Cr.P.C which governs the provision of appeals in case of convictions didn’t lay down any specific provisions for disposing of the appeals.
The appellate process was often cited as a major impediment in the achievement of speedy justice {74} Need for streamlining appeals in a time bound process with regard to rape cases was long demanded by the legal experts and Law Commission {75}.
With the promulgation of CLAA, a sub-section has been inserted in section 374, Cr.P.C which mandates that an appeal against a sentence in rape cases must be disposed within 6 months. Despite the establishment of Fast Track Courts (FTCs) for trying crime against women (esp. offences like rape) there is a huge gap in the cherished objective of FTCs and actual ground realities.
The NCRB report of 2016 indicates a high pendency percentage of 87.7% in rape cases, with national conviction rate at modest 25.5%. In 2016 there were 1, 52,165 cases for trial, out which 1, 18,537 are cases in which trial is still pending from the previous year and 33,628 new cases were sent for trial in 2016. The rising number of vacancies in judiciary, inadequate budgetary allocation for infrastructure development, and unrealistic disposal targets for judicial officers, has raised grave questions on judicial capacity to ensure fair and speedy justice in India.
The case study conducted by Partners for Law in Development, also underlined the inconsistencies in procedures and practices of FTCs presently working in Delhi post-nirbhaya. Many lawyers, academicians and experts from time to time have raised serious concerns about procedural irregularities and miscarriage of justice in the proceedings of FTCs. Another problem which lies with the mandatory worded nature of amendments is the absence of any legal consequences for their infraction. In other words, violation of any of such mandatory provisions would not entail any legal or penal consequences either on police or judicial officers.
In the absence of any punitive action against judicial and police officers for failing to adhere to such time limits, these ‘time bound’ provisions may be rendered nugatory {76}. Therefore, it is incumbent upon the legislature that while making ‘time bound’ provisions they should also enact consequential provisions to deal with the cases of noncompliance or infraction.
Thus, no court shall have the power to grant an anticipatory bail to a person who is apprehending arrest in a rape case related to minor. Despite legislature putting blanket restriction on the rights of the accused to access anticipatory bail, the courts have been wary of such legislative actions. Since Maneka Gandhi case, {77} constitutional courts have been invoking the doctrine of proportionality for advancing fairness and reasonableness in procedural laws.
At a time when misuse of law has come under the strict scrutiny of the judiciary, the constitutional courts by way of interpretation have devised alternative remedies for providing relief to the accused person. For instance in the state of Uttar Pradesh the provision of anticipatory bail has been made inapplicable since 1976 {78}
In the absence of such provisions in Uttar Pradesh, applications are filed before the Allahabad High Court, for invoking inherent powers of the court under section 482 Cr.P.C., praying to put a stay on arrest or quashing of the FIR. Apart from invoking High Court’s inherent powers under Cr.P.C, the writ jurisdiction under article 226 of the Constitution is also invoked for seeking same relief.
The full bench of the Allahabad High court in Amarvati case, {79} while interpreting section 2(c), 41, 157(1), 437 and 439 of the Cr.P.C. observed that the arrest of the accused was not necessary even after the FIR of an cognizable offence has been lodged {80}. It further ruled that the court, in view of the facts and circumstances of the case, may grant interim bail till the bail application is finally disposed.
The decision of Amravati case was approved by the SC in Lal Kamlendra Pratap Singh v. State of Uttar Pradesh, {81} where it directed all courts in Uttar Pradesh to follow it in letter and spirit, since the provision for anticipatory bail was not available in Uttar Pradesh. Even the Supreme Court in several cases has categorically ruled that despite statutory bar against the grant of anticipatory bail, a constitutional court cannot be barred from exercising its jurisdiction to grant relief to the accused {82}.
Thus, exclusionary provisions introduced by the CLAA with respect to anticipatory bail are not absolute in nature. The record has shown that whenever courts have found any abuse of state power or absence of prima facie case against the accused, they have exercised their judicial powers to grant interim bail to the accused, regardless of statutory dictums. Therefore, there is no certainty that removal of anticipatory bail provision would necessarily lead to the exclusion of judiciary from exercising its powers conferred by the constitution or any other law.
Also, removing anticipatory bail provision will further burden the constitutional courts with petitions seeking bail in anticipation of arrest, under their writ jurisdiction.
CLAA also places limitations on the powers of courts while granting regular bail under section 439, Cr.P.C (in rape cases of minors) by requiring them to give a prior notice to the public prosecutor within 15 days from the date of receipt of the bail application {83}.
The new provisions will entitle the prosecution to give representation and oppose the bail application of the accused, thereby safeguarding the interest of rape victims. The right of representation to prosecution in bail matters is a welcome step in the light of incidences of witness tampering and political patronage to sexual offenders in Kathua and Unnao rape cases.
The only caveat being that the act or omission must constitute an offence under IPC as well as the POCSO. For instance, for penetrative sexual assault the minimum punishment prescribed under POCSO is 7 years’ imprisonment, whereas the parallel provision under IPC prescribes a punishment 10 years (if woman is between 16-18 years) or 20 years (if woman is under 16 years of age).
In such cases, the offender will be sentenced in accordance with the punishment prescribed by IPC. The amendment in POCSO was necessitated due to the inclusion of new offences in IPC, added by the CLAA.
In order to extend the enhanced punishments in IPC to the cases falling under POCSO, section 42 of POCSO was amended and newly created offences (section 376AB, 376B, 376DA, 376DB) were substituted. But in the process, the CLAA has failed to take into account the fact that POSCO is a gender-neutral law, whereas the legal framework of rape under IPC is gender-specific. To put it in context, POCSO uses ‘person’ in its reference to victim and perpetrator; whereas, section 375, 376 and other successive provisions uses the word ‘woman’ and ‘man’ in reference to victim and perpetrator respectively.
This will create a situation where those guilty of committing penetrative sexual assault on a girl below 12 years would get minimum life imprisonment or the capital punishment, by virtue of section 376AB read with section 42, POCSO.
But a lesser punishment (10 years or life imprisonment) will be given for committing penetrative sexual assault on a boy, since there is no parallel provision for rape of men in IPC. Same inconsistency will also prevail over gang rape related provisions, where the same offence committed against a boy and a girl will be treated differently.
The CLAA to the extent that it discriminates between sexes in the matter of punishment fails to satisfy the equal protection clause and is, therefore, violative of article 14 of the constitution. Moreover, it is also important to note that it is in the interest of justice that a public discourse be initiated for introducing gender neutral criminal laws with respect to sexual offences, with appropriate mechanisms to check their misuse. Countries around the world have made suitable amendments in their criminal statutes in order to incorporate gender neutral provisions. There is an emerging consensus about the high prevalence of male and transgender victims of sexual offences.
Conclusion
The criminal law is one of the most vital links which defines the relationship between a state and its citizens. Therefore, it is desirable if this relationship is defined precisely and clearly in the penal statutes.
The criminal law which is seen as the most potent State instrument restricting individual’s fundamental right to life and personal liberty must be free from inconsistencies and ambiguities. However, of late vagueness and ambiguity appears to be the first hand rule of the present day legislative interventions. The three aforementioned qualities of a good code which Macaulay valued have been given a go by when it comes to legislative drafting.
The ambiguous phraseology used in criminal laws reflects their want for precision. Apparent inconsistencies in criminal laws of India make it difficult for ordinary citizens and even legal experts to understand the scope of a particular provision. On the one hand, IPC and its amendments continue to be subject to constant judicial interpretation border lining law-making due to slow progress in law reforms.
Whereas, on the other hand, the legislature and the executive continues to sleep on crucial law reform recommendations made by expert bodies and committees. Thus, the IPC and its recent anti-rape amendments continue to sail from ambiguities, inconsistencies, and legislative apathy towards its reformation.
A hasty legislation, drafted with intent to calm public impulse, may augur well for optics and political rhetoric. However, in the hindsight it compromises the quality of law reforms, and clogs the judicial system with petitions praying for an authoritative declaration on the law. The Parliament which could have brought necessary changes in the IPC, left untouched by 2013 amendment Act, has missed yet another opportunity.
By bringing superficial reforms, the State appears to have washed its hands, from addressing the more pressing need for a comprehensive revision of the penal code. Moreover, the State narrative of deterrence is nothing but a misguided institutional aggression, detached from ground realities.
What is expected from any government is not mere passage of laws but to conduct thorough research, assess its findings and apply reason before making any law. In the absence of a holistic research oriented approach, the legislature will continue to pass ambiguous and omnibus laws which disregard cardinal principles of criminal law jurisprudence, and constitutional values. It serves well to all stakeholders in a criminal justice system to bear in mind that respect and adherence to laws can only be achieved when the law makers recognises the necessity of reconciling individual rights with that of society, along with the State interest in maintaining law & order.
End Notes:
1. Kiran Bedi., Joint Commissioner, Special Branch, Delhi Police.
2. Ashworth, Andrew (1999), Principles of Criminal Law, Oxford University Press, New Delhi, pp91-93.
3. Bhattacharjee, A.M, (1994) Hindu Law and the Constitution, 2nd Ed., Eastern Law House, Calcutta, pp.198-99.
4. Ibid.
5. Mohapatra, Padmalaya and Bijoyini Mohanty (2002), Elite Women of India, APH Publishers, New Delhi.
6. Dhagamwar, Vasudha (2007), Law Power and Justice- the Protection of Personal Rights in the Indian Penal Code, Sage Publication, New Delhi.
7. Section 375 of Indian Penal Code.
8. Section 376-A of Indian Penal Code.
9. Section 376-B of Indian Penal Code.
10. Sec.376-C of Indian Penal Code.
11. Sec.376-D of Indian Penal Code.
12. Sec.354 of Indian Penal Code.
13. Sec.372-73 of Indian Penal Code.
14. Sec.377 of Indian Penal Code.
15. The Criminal Law (Amendment) Act, 2013 https://www.google.com/search?rlz=1C1CHZL_enIN846IN846&sxsrf=ALeKk00Am8XOo6OC5IMDDirBgSpyvT-_Cg%3A1585064748741&ei=LCt6XrL0LLmW4-EPyceFcA&q=http%3A%2F%2Fwww.ycce.edu%2Fadmin%2Fpdf%2FAnti-rape_bill_2013.pdf%3B&oq=http%3A%2F%2Fwww.ycce.edu%2Fadmin%2Fpdf%2FAnti-rape_bill_2013.pdf%3B&gs_l=psy-ab.3..35i39.5349.8805..9758...0.0..0.374.4046.0j11j7j1......0....1..gws-wiz.qTrqExR6iaw&ved=0ahUKEwiyuq2qurPoAhU5yzgGHcljAQ4Q4dUDCAs&uact=5.
16. Ibid.
17. The Criminal Law (Amendment) Act, 2013 available at https://www.google.com/search?rlz=1C1CHZL_enIN846IN846&sxsrf=ALeKk01beH_rzaZv945jCxCtvJ08idkUIg%3A1585064849079&ei=kSt6XtapBNuU4-EPmKiNsA8&q=http%3A%2F%2Fwww.ycce.edu%2Fadmin%2Fpdf%2FAnti-rape_bill_2013.pdf%3B&oq=http%3A%2F%2Fwww.ycce.edu%2Fadmin%2Fpdf%2FAnti-rape_bill_2013.pdf%3B&gs_l=psy-ab.3..35i39l2.2922.6293..7484...0.0..0.474.5594.0j8j15j1j1......0....1..gws-wiz.d-G4rd2DRZQ&ved=0ahUKEwiWtpnaurPoAhVbyjgGHRhUA_YQ4dUDCAs&uact=5.
18. UN Women welcomes India’s Criminal Law (Amendment) Act as a deterrent to violence against women.
19. Ibid.
20. What happened on the night of 16th December 2012? available at https://www.ndtv.com/delhi-news/how-the-police-cracked-the-delhi-gang-rape-case-507825.
21. State v. Ram Singh and Ors., Date of judgement: 10-09-2013
22. How the police cracked the Delhi gang-rape case available at https://www.ndtv.com/delhi-news/how-the-police-cracked-the-delhi-gang-rape-case-507825.
23. Report Summary: Report of the Justice Verma Committee on Amendments to Criminal Law, 2013.
24. Bhattacharya, Rituparna, Criminal Law (Amendment) Act, 2013: Will it ensure women’s safety in public spaces?.
25. Ibid.
26. Recommendations of the Justice Verma Committee.
27. Report of the Committee on Amendments to Criminal Law; January 23, 2013
28. Ibid.
29. Government Ordinance vs. J. S. Verma Committee Recommendations.
30. Ordinance bypasses all vital recommendations of Verma panel available at https://www.google.com/search?rlz=1C1CHZL_enIN846IN846&sxsrf=ALeKk00MORxfUCuh_XA1jHGvU92Tewiz_A%3A1585065376799&ei=oC16XvmeMOnD3LUPh5COuAE&q=30.%09%E2%80%9COrdinance+bypasses+all+vital+recommendations+of+Verma+panel%E2%80%9D+available+at+http%3A%2F%2Fwww.thehindu.com%2Fnews%2Fnational%2Fordinance-bypasses-all-vital-recommendations-of-verma-panel%2Farticle4372835.ece.&oq=30.%09%E2%80%9COrdinance+bypasses+all+vital+recommendations+of+Verma+panel%E2%80%9D+available+at+http%3A%2F%2Fwww.thehindu.com%2Fnews%2Fnational%2Fordinance-bypasses-all-vital-recommendations-of-verma-panel%2Farticle4372835.ece.&gs_l=psy-ab.3..35i362i39l10.9662.114078..114979...3.0..0.0.0.......2....1j2..gws-wiz.....10.EBS9p53CLqg&ved=0ahUKEwj57urVvLPoAhXpIbcAHQeIAxcQ4dUDCAs&uact=5.
31. Ibid.
32. Retrieved,from http://164.100.47.4/billstexts/lsbilltexts/passedloksabha/126%20c_%20%20criminal%%2020law%202018_ls_eng.pdf..
33. Ibid.
34. The Kathua rape case refers to the abduction, rape, and murder of an 8 year old girl, in Rasana village near Kathua (Jammu & Kashmir) in Jan. 2018. The victim belonged to the Bakarwal community. She disappeared for a week before her dead body was discovered by the villagers. Owing political patronage to the accused in the case and possibility of political influence on the trial in Kathua (J & K), the trial of the case was transferred by the SC to Pathankot District & Sessions court (Punjab). See, State of Jammu Kashmir v. Deepak Khajuria @ Deepu (Case registration no. 34/2018)
35. The Unnao rape case refers to the alleged rape of a 17 year old girl (minor) on June 4, 2017. The main accused is Kuldeep Singh Sengar, a MLA of Uttar Pradesh, and a member of the ruling BJP. The case was transferred to CBI owing to public pressure. The Allahabad High Court vide its judgment, Re: An Unfortunate Incident in Unnao of Rape and Murder Published in Various Newspaper v. State of U.P. (W.P [Cri.] 1 of 2018, Date of decision: May 21, 2018) stayed the trial at Unnao Sessions Court and transferred the same to a Special CBI Court at Lucknow (POCSO). For details see, C.B.I v. Kuldip Singh Sengar, (Cri. Case No. 1228/2018)
36. The public outrage forced Government to reconsider the criminal policy and legislative framework with respect to rape. For reviewing the rape laws in India, Government of India appointed a high level committee under Justice J.S. Verma. In the meantime, the Govt. of India promulgated the Criminal Law (Amendment) Ordinance, 2013. The Ordinance was soon replaced and repealed by the Criminal Law (Amendment) Act, 2013.
37. The Criminal Law (Amendment) Ordinance, 2018 (2 of 2018)
38. Available at: http://www.thehindu.com/news/cities/Delhi/was-any-study-done-before-
39. The Criminal Law (Amendment) Act, 2018 (22 of 2018)
40. Indian Penal Code, 1860 (Act 45 of 1860).
41. Code of Criminal Procedure, 1973 (Act 2 of 1974
42. Indian Evidence Act, 1872 (Act 1 of 1872).
43. Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012).
44. Section .376 (2) clause (a) to (n)
45. Clause (i): commit rape on a woman when she is under 16 years of age.
46. Ibid.
47. Dr. K.I. Vibhute argues that such notion of incapacity to consent rests presumable on the ground that a woman under 16 years of age is incapable of thinking rationally and plausibly the presumption of the legislature of the gullibility of woman to be lured into consensual sexual intercourse without appreciating its implications. See, K.I. Vibhute, PSA Pillai’s Criminal Law 824 (Lexis Nexis, 13th edn. 2017)
48. Mandatory minimum sentence was introduced in 2013 with a view to effectively combat sexual crimes against women and eliminate judicial discretion in sentencing of rape convicts. Prior to the 2013 amendment, wide sentencing discretion was conferred on the Courts for meeting exceptional situations. The consequential effect of the proviso under IPC, 1860 (prior to 2013 amendment) appended to different sections of rape was that it empowered the courts to award a below minimum sentence on adequate and special reasons, and diluted the effect of minimum prescribed sentence for rape convicts. See generally, Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press, 2016).
49. Juvenile Justice Act (Care and Protection of Children), 2015 (Act 2 of 2016).
50. Under the JJA, a child in conflict with law (16-18 years of age) may be tried as an adult for heinous offences if the Juvenile Justice Board (u/s 15, 18) and the Children’s Court (u/s 19) decides that there is a need for trial of the child as an adult as per the provisions of the Cr.P.C
51. By virtue of section 21 of the JJA, a child cannot be sentenced to death or life imprisonment
52. E.g. Interview with Prof. Ved Kumari, Dean Faculty of Law, University of Delhi, April 3.
53. Indira Jai Singh Stringent punishment to score political points Deccan Herald, April 28, 2018.
54. Section .5 which corresponds to IPC, s. 376AB: Whoever, commits rape on a woman under twelve years of age 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 that person's natural life, and with fine or with death.
55. Ibid. s.6 which corresponds to IPC, s. 376DB: Where a woman under 12 years of age 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 imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death.
56. Census of India, 2011: As quoted in: National Commission for Protection of Child Rights A Statistical Analysis of Child Marriage in India Based on Census 2011 (2017) p.42-43.
57. Ibid.
58. Ibid.
59. Priya Patel v. State of Madhya Pradesh (2006) 6 SCC 263
60. State of Rajasthan v. Hemraj (2009) 12 SCC 403
61. Justice J.S. Verma, Justice Leila Seth, et.al. Report of the Committee on Amendments to Criminal Law (2013).
62. Ibid.
63. Woman forces 13-year-old niece to drink, lets her boyfriend rape the child in Delhi, available at: https://www.google.com/search?rlz=1C1CHZL_enIN846IN846&sxsrf=ALeKk02LNT4yFV2Fbw53hjNBSutETjXxcg%3A1585064858121&ei=mit6XsKFB72I4-EPsviesA4&q=https%3A%2F%2Fwww.hindustantimes.com%2Fdelhi-news%2Fwoman-forces-13-year-old-niece-to-drink-%09lets-her-boyfriend-+rapethe-+child-in-north-west-delhi%2Fstory-&oq=https%3A%2F%2Fwww.hindustantimes.com%2Fdelhi-news%2Fwoman-forces-13-year-old-niece-to-drink-%09lets-her-boyfriend-+rapethe-+child-in-north-west-delhi%2Fstory-&gs_l=psy-ab.3..35i362i39l10.972.15957..17271...2.0..4.412.1944.0j2j2j2j1......6....1j2..gws-wiz.....10..35i39.iIiHtRDI5vA&ved=0ahUKEwjCusHeurPoAhU9xDgGHTK8B-YQ4dUDCAs&uact=5.
64. In Om Prakash v. State of Haryana (2015) 2 SCC 84, the SC held that the woman who facilitated the commission of gang rape by her husband and another man, guilty of abetting the rape by intentional aid under section 109, IPC.
65. Bachan Singh v. State of Punjab (1980) 2 SCC 684, Machhi Singh v. State of Punjab (1983) 3 SCC 470, Sangeet v. State of Haryana (2013) 2 SCC 452.
66. Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System (Mar. 2003) p.193.
67. National Crime Records Bureau, Report on Crime in India 2016 (Ministry of Home Affairs, 2017) p.153. As of 2016, conviction rate in rape cases stands at 25.5%.
68. Gopal Vinayak Godse v. State of Maharashtra AIR 1961 SC 600, Maru Ram v. Union of India (1981) 1 SCC 107: The constitution benches in both the cases have ruled the law that life imprisonment for the remainder of convict’s natural life, unless its shortened or curtailed by any act of the state by way of commutation, remission or reprieve granted under any law. Also see: Ashok Kumar @ Golu v. Union of India (1991) 3 SCC 498, Subhash Chander v. Krishn Lal (2001) 4 SCC 458, Union of India v. V. Sriharan @ Murugan (2016) 7 SCC 1, Muthuramalingem v. State (2016) 8 SCC 313. For elaborate discussion see supra note 16 at 328.
69. Stanley Yeo, Barry Wright Revitalising Macaulay’s Indian Penal Code in Wing-Cheong Chan, Stanley Yeo et. al. (eds.) Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform 4-5 (Routledge, 2011).
70. Thomas Babington Macaulay, J.M. Macleod et. al., A Penal Code, (Lawbook Exchange Ltd, Reprint edition, 2002).
71. Study conducted by Partners for Law in Development with the support of Department of Justice, Ministry of Law & Justice Government of India And United Nations Development Programme, Towards Victim Friendly Responses and Procedures for Prosecuting Rape: A Study of Pre-Trial and Trial Stages of Rape Prosecutions in Delhi (Jan 2014-March 2015).
72. Ibid.
73. Ibid.
74. See generally, Neha Tara Mehta, The slow road to justice for India's rape victims.
75. Law Commission of India, 172nd Report on Review of Rape Laws, (March, 2000); Law Commission of India, 84th Report on Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence (1980).
76. Recently, a two Judge bench of the SC in State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti (2018) SCC OnLine SC 966 read down a mandatory worded provision of the Arbitration & Conciliation Act, 1996 as directory, since the infraction of impugned provision attracted no legal or penal consequences. Also see, Topline Shoes v. Corporation Bank (2002) 6 SCC 33, J.J. Merchant (Dr.) v. Shrinath Chaturvedi (2002) 6 SCC 635, Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344 at para. 20, State of Kerala v. Alaserry Mohd. (1978) 2 SCC 386, Jaswantsingh Mathurasingh v. Ahmadabad Municipal Corp. (1992) Supp. 1 SCC 5.
77. Maneka Gandhi v. Union of India (1977) 1 SCC 248.
78. The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (Act 16 of 1976), s. 9.
79. Amaravati v. State of U.P. (2005) Cr. L.J 755
80. Allahabad High Court placed reliance on the SC judgement in Joginder v. State (1994)
81. (2009) 4 SCC 437.
82. Hema Mishra v. State of Uttar Pradesh (2014) 4 SCC 453.
83. Ibid.
Introduction: At the beginning of human civilization all laws were religious laws, i.e., they expressed the will of some superhuman authority. The spirits, the gods, or God wanted human beings to behave in a certain way and promptly punished any disobedience. The laws, therefore, practically enforced themselves.
The earliest known sex laws were no exception to this rule. Originally, there was no difference between sin and crime. Sexual offenders were both sinners and criminals, and their punishment was certain. Where human law enforcement was necessary at all, it merely carried out divine orders.
As a matter of fact, this was the prevalent view throughout most of human history. For thousands of year’s religious belief remained the foundation of all law. On the other hand the sex law was based on rational and empirical grounds. As a result, many sexual acts that once had been crimes were now found to be permissible {2}.
Types of sexual offence
Unfortunately, sexual offence can come in many forms. It is possible to classify sexual offences in four main categories.Direct offence:
which is most commonly emphasized, examples of which are rape, molestation, forced prostitution, female genital mutilations, etc.Indirect offence:
which covers harmful, sometimes deadly situations, or actions which, though due to human intervention, do not necessarily involve a direct relationship between the victims and the institutions or the arranged marriages, where the woman is not allowed to make a choice regarding the marriage partner.Repressive offence:
This relates to three groups of fundamental rights-civil rights, political rights and social rights. Repressive violence is used to suppress political or class movements, for e.g., rape or sexual abuse targeting towards low caste women, mass rapes during international and internal armed conflicts.Alienating violence:
This deprives the woman of her higher rights, such as right to emotional, cultural or intellectual growth. Examples are marital rape, prescribing dress codes to regulate female sexuality; etc {3}.However, sexual assault in any form is often a devastating crime. Accused can be strangers, acquaintances, friends, or family members. Assailants commit sexual assault by way of violence, threats, coercion, manipulation, pressure or tricks. Whatever the circumstances, no one asks or deserves to be sexually assaulted. A wide range of sexually violent acts can take place in different circumstances and settings.
These include:
- Rape within marriage or dating relationships;
- Rape by strangers;
- Systematic rape during armed conflict;
- Unwanted sexual advances or sexual harassment, including demanding sex in return for favours;
- Sexual abuse of mentally or physically disabled people;
- Sexual abuse of children;
- Forced marriage or cohabitation, including the marriage of children;
- Denial of the right to use contraception or to adopt other measures to protect against sexually transmitted diseases;
- Forced abortion;
- Violent acts against the sexual integrity of women, including female genital mutilation and obligatory inspections for virginity {4}.
Sexual trafficking uses physical coercion, deception and bondage incurred through forced debt. Trafficked women and children, for instance, are often promised work in the domestic or service industry, but instead are usually taken to brothels where their passports and other identification papers are confiscated. They may be beaten or locked up and promised their freedom only after earning- through prostitution- their purchase price, as well as their travel and visa costs {5}.
However, according to Prof. N.V. Paranjape {6}, sexual offences in India have been categorized into the following forms which has clearly been enshrined and punishable under Indian Penal Code. They are:
- Rape {7}
- Intercourse by a man with his wife during separation {8}.
- Intercourse by a public servant with women in his custody {9}.
- Intercourse by Superintendent of Jail, Remand Home etc {10}.
- Intercourse by any member of the management of staff of a hospital with any women in that hospital {11}.
- Assault or criminal force to women with intern to outrage her modesty {12}.
- Selling or buying minors for purposes of prostitution {13}.
- Unnatural offences such as carnal intercourse against the order of nature with any man, women or animal {14}.
Criminal Law Amendment Bill, 2013
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. 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.
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 {15}. The Act introduced unprecedented provisions in the Indian Penal Code which criminalizes 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 {16}.
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 come 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.
This incident generated huge international coverage and was condemned by the United Nations Entity for Gender Equality and the Empowerment of Women, who called up the Government of India and Delhi to do everything in their power to take up radical reforms and the like to make women’s lives safer and secure {17}.
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.
In a meeting at UN Women, Justice Verma stated that, to ensure its success, it is important that the Act be implemented with dedicated human and financial resources, and clarity in roles and responsibilities. A law is only as good as the systems and individuals that implement them. Mindsets and attitudes need to change, women can truly be respected equally and value in society {18}.
Reasons for the Enactment
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 {19}.Nirbhaya Case / 2012 Delhi Gang Rape Case
The 2012 Delhi gang rape case involved a rape and fatal assault that occurred on 16 December 2012 in Munirka, a neighborhood 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 {20}. Similar protests took place in major cities throughout the country demanding stricter laws and speedy justice.
The gang rape in Delhi took place on the night of 16th December 2012. The victim, a 23 year old physiotherapy intern took a ride home in a private bus that night, with her friend. There were six other people on the bus, including the driver. The victim and her friend were beaten up when they raised their suspicions as to route of the bus to the destination. The woman was later raped by all the men while the bus was moving and her friend was beaten unconscious {21}. After the beatings and rape, both the victims were thrown out of the moving bus by their perpetrators and left on the side of the road, partially clothed.
Later, a PCR van arrived at the scene after receiving a call from a passerby. The victims were taken to the Safdarjung Hospital in Delhi for treatment. Medical investigation of the woman suggested she was penetrated by a blunt object, probably a rod-like object that had caused extensive damage to the internal organs of the victim.
Two blood-stained metal rods were retrieved from the bus on police inspection, which the medical staff later confirmed to be the object used for penetration that had caused serious injuries to the victim’s uterus, genitals and the abdomen. Within a day of the commission crime, arrests were made by the Delhi police in the case and all the six accused including a juvenile were arrested {22}.
There was a huge demand for speedy trial and immediate prosecution in the matter. While five of the accused were tried for the crime before the Additional Sessions Judge in the Special Fast Track Court, the sixth accused, who was a juvenile at the time of the crime, was tried before the Juvenile Justice Board. However, during the trial, one of the accused, Ram Singh was found dead in his prison cell. The remaining accused were booked for rape, murder, kidnapping, destruction of evidence, and the attempted murder of the woman’s male companion under Sections 120-B, 365, 366, 307, 376 (2)(g), 377, 396, 302, 397, 201 and 412 of the Indian Penal Code, 1860.
Conviction and Sentencing
The juvenile defendant was found guilty of rape and murder of the victim under the Juvenile Justice Act by the Juvenile Justice Board on the 31st of August 2013. He was sentenced to three years imprisonment in a reform facility. The remaining four accused, after the death of Ram Singh, were found guilty of rape, murder, unnatural offences and destruction of evidence by the fast-track court. They were sentenced to death penalty by the court on 13th September 2013. After mercy plea rejection from President of India, on 20 March 2020, at 5:30 AM four adults convicts were executed by hanging at Tihar Jail.
The Justice Verma Committee
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{23}. 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.
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 {24}.
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 {25}.
Recommendations of the Committee
The following are the recommendations of the Committee with regard to sexual offences in India{26}:
Punishment for Rape:
The panel has not recommended the death penalty for rapists. It suggests that the punishment for rape should be rigorous imprisonment or RI for seven years to life. It recommends that punishment for causing death or a persistent vegetative state should be RI for a term not be less than 20 years, but may be for life also, which shall mean the rest of the person’s life. Gang-rape, it suggests should entail punishment of not less than 20 years, which may also extend to life and gang-rape followed by death, should be punished with life imprisonment.
Punishment for other sexual offences:
The panel recognised the need to curb all forms of sexual offences and recommended – Voyeurism be punished with up to seven years in jail; stalking or attempts to contact a person repeatedly through any means by up to three years. Acid attacks would be punished by up to seven years if imprisonment; trafficking will be punished with RI for seven to ten years.
Registering complaints and medical examination:
Every complaint of rape must be registered by the police and civil society should perform its duty to report any case of rape coming to its knowledge. Any officer, who fails to register a case of rape reported to him, or attempts to abort its investigation, commits an offence which shall be punishable as prescribed, the report {27} says. The protocols for medical examination of victims of sexual assault have also been suggested. The panel said:
Such protocol based, professional medical examination is imperative for uniform practice and implementation.
Bill of Rights for women:
A separate Bill of Rights for women that entitles a woman a life of dignity and security and will ensure that a woman shall have the right to have complete sexual autonomy including with respect to her relationships {28}.
Distinction between the Verma Committee Recommendations and the Criminal Law (Amendment) Ordinance, 2013
The major differences between the Ordinance passed by the government and the J. S. Verma Committee recommendations were {29}.The Justice J. S. Verma Committee recommended 20 years imprisonment for gang-rape and life imprisonment for rape and murder but refrained from using the term death penalty though there was public outcry to sentence rapists with death sentence following the brutal gang-rape and murder of a 23-year-old medical student in Delhi on December 16, 2012.
However, the ordinance passed by the Cabinet went for a harsher punishment for a rapist- a minimum of 20 years imprisonment for rapists and even death penalty in extreme cases.
Verma panel recommended criminalization of marital rape but the ordinance rejected it {30}.
The Justice J. S. Verma Committee recommended restriction of politicians facing sexual offence charges from contesting elections. Ordinance rejected this recommendation.
The panel recommended that the senior police or army officials be held responsible for sexual offences committed by their junior but the ordinance rejected it.
The Justice J. S. Verma Committee wanted to make videography of recording statement from victim mandatory but the ordinance made it optional.
The Justice J. S. Verma Committee wanted the definition for sexual offences as rape but the ordinance replaced it with the word sexual assault.
The Criminal Law (Amendment) Act, 2013 has been known 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 recognises new offences like acid attacks which earlier lacked a specific provision and definition in the Code.
The definition of rape has been amended to include not just vaginal intercourse but the insertion of an object or any other body part into a woman’s vagina, urethra or anus, and oral sex. This responds to a longstanding demand of women’s rights groups.
The issue of rape by different means was highlighted in the Delhi gang-rape case, where an iron rod was inserted into the young woman’s body. Despite its flaws, the Act bears a progressive insight to make an impact and fight a battle against violence against women.
However, the Act by itself is not sufficient to redress and seek justice for violence against women. For this, the Government of India needs to make colossal investments in building necessary infrastructure to deal with the crimes supplemented by meaningful reforms in judiciary (building fast track women’s courts, more engagement of women lawyers, women doctors to examine victims) and modernisation of the police system across whole of India.
The 2013 Act should be viewed as a mere placeholder in the ongoing struggle against sexual and gender-based violence in India. The most overwhelming prospect is the overhaul of prevailing attitudes to rape and sexual offenses in a populace ostensibly grappling with moral confusion, as economic modernization necessitates far-reaching changes in gender roles while social attitudes remain steeped in moral conservatism and misogyny.
There are already ample laws prescribing deterrent punishment for offences against women. What is actually required is a concrete legislation, this was however, partially achieved through the passing of the Criminal Law (Amendment) Act, 2013; to infuse sensitivity, understanding and more significantly, the mindset among police, executives to implement the laws more in spirit than in letter. Only then deterrent punishment can be awarded in crimes against women {31}.
Criminal Law (Amendment) Bill 2018 on child rape passed in Lok Sabha
The Lok Sabha has passed the Criminal Law (Amendment) Bill 2018 that proposes to enhance punishment for rape of a child. The Bill provides for death penalty as the maximum punishment in cases of rape of a child under 12. The Bill seeks to replace the Criminal Law (Amendment) Ordinance promulgated on April 21 following an outcry over the rape and murder of a minor girl in Kathua in Jammu and Kashmir and the rape of another woman at Unnao in Uttar Pradesh {32}.Responding to the passage of the Bill in the Lok Sabha on July 30, Minister of State for Home Affairs Kiren Rijiju said that the POSCO was gender-neutral while the new law pertains to girls specifically. The Criminal Law (Amendment) Bill 2018 will amend relevant Sections of the IPC, Cr.P.C and also POCSO Act.
The Criminal Law (Amendment) Bill 2018 enhances the minimum sentence for offence of rape against girl children of all three age categories. Under new law, if the victim is under 12 years of age, the culprit faces minimum sentence of 20 years, up from 10 years previously. The maximum punishment is death penalty. In the cases of gang rape of child under 12, the minimum punishment is life sentence (earlier 20 years) while the maximum is death penalty.
In cases of child aged between 12 and 16, the offence of rape is punishable with the minimum sentence of 20 years, up from 10 years. Maximum punishment in such cases is life imprisonment. If a girl aged between 12 and 16 is gang raped, the convict faces minimum punishment of life sentence. If the victim is aged between 16 and 18, the offence of rape is punishable with minimum punishment of 10-year jail term and maximum is life imprisonment {33}.
Repeat offenders will be punished with life imprisonment or death. The Bill provides for time-bound investigation in cases of rape of girl children. The investigation into rape of a child must be completed within two months. The case is to be tried in a fast track court. The Bill states that any appeal against a sentence by the trial court must be disposed of within six months. Accused is not entitled to anticipatory bail, under new law, in offences of rape of child less than 18 years of age.
The recent incidences of rape in Kathua {34} and Unnao {35}, have re-ignited the fading memories of December 16, 2012. The most repulsive incidents of gang rape of a 23 years old physiotherapy student marked a watershed development in the post-independent India, when the society came in direct confrontation with the mighty system. In a country where rape culture was not only tolerated but also patronised, the civil society not only expressed its anguish at the existing status-quo, but aggressively rallied to battle the system. The massive public outcry and agitation post-nirbhaya, not only ensured radical amendments {36} in the criminal laws but also awakened the State, society and individual to recognise rape and crime against women as a mainstream societal issue.
Despite stringent laws passed post-nirbhaya, the collective conscience of the society was taken aback with Kathua rape case, where an 8-year-old girl fell prey to the savage lust of a gang, faced brutal sexual assault and murdered, to give vent to their pervert sexual appetite, and sadistic pleasure. These horrific incidences and the alleged political support to the perpetrators were reminder of the fact that rape culture in India has not only failed to wane but looms large in our society where such crimes are committed with impunity. As a consequence, to the extensive press reporting and public uproar, the government was prompted to take ‘corrective measures’. The cabinet approved the Criminal Law (Amendment) Ordinance, 2018 {37} (the Ordinance).
The Ordinance was signed by the President of India and it came into force on April 21, 2018. The Ordinance enhanced punishments (including capital punishment) for offenders convicted of raping minors, and wide ranging changes were introduced in procedural laws. As a law reform exercise the state adopted the same methodology based on impulses rather than sound legal prepositions and deliberations {38}. In the meanwhile, to fulfill the constitutional requirement, the Criminal Law (Amendment) Bill, 2018 (hereinafter the Bill) was introduced in the Parliament to replace the Ordinance with an Act of Parliament.
The Bill was passed by Lok Sabha on July 30, 2018 and Rajya Sabha on August 6, 2018. Thereafter it received the Presidential assent on August 11, 2018 and came into force as the Criminal Law (Amendment) Act, 2018 {39} (CLAA) from April 21, 2018. The CLAA, which replaced the Ordinance with a retrospective effect, amends four central legislations namely: The IPC, 1860 {40} the Code of Criminal Procedure, 1973 (Cr.P.C) {41} the Indian Evidence Act, 1872 (IEA) {42} the Protection of Children from Sexual Offences Act, 2012 (POCSO) {43}.
Appearing to be a knee jerk reaction to public protests, the present legislation suffers from several drafting ambiguities which have left an ample scope for the exercise of judicial discretion while interpreting the law in future. The paper seeks to examine various provisions of the CLAA in the light of ground realities of the existing criminal justice system. The author through this paper has tried to conduct an objective inquiry about the engagement of law with social problems relating to sexual offences, and critique the nature of solutions offered by the state (with reference to CLAA). Further the author has also tried to look into the hyped state narrative of deterrence sought to be created by extending death penalty to new offences, and changes in the procedural laws.
Amendments of 2018 to IPC: Issues & concerns
The IPC is one of the most important pieces of criminal legislations in India. It consists of an elaborate code of offences with their definition and punishments. Prior to the CLAA, IPC was last amended by the Criminal Law (Amendment) Act, 2013 which introduced several reforms in the realm of sexual offences.The CLAA has amended the IPC in two ways:
- Firstly, by amending the existing sections of IPC;
- secondly, by inserting new sections which have created
new offences in IPC.
Enhanced punishment & blurring classification of rape
On a careful perusal of section 375 and 376 one can identify a classification of rape – rape simplicities punishable under section 376 (1), IPC and aggravated forms of rape punishable under section 376 (2), IPC.The former class of rape lays down the general offence of rape and invites a lesser punishment. Whereas, the latter class of rape provided under section 376 (2) lays down 14 circumstances where the nature of rape is considered more serious due to the presence of an aggravating factor {44} and therefore, has higher punishment. Any man who commits an aggravated form of rape is liable for prosecution u/s 376 (2) which have a minimum punishment of 10 years which may extend to life imprisonment.
Whereas any man who commits an act, on a woman, which falls within the definition provided under section 375, IPC is liable for prosecution u/s 376 (1), provided it doesn’t fall in any of the clauses of section 376 (2). Prior to the CLAA, minimum punishment for rape simplicities was 7 years, whereas maximum punishment was life imprisonment. However, the CLAA has increased the minimum sentence from 7 years to 10 years. On the face of it the amendment appears to be a strong provision against rape.
However, on a careful look, one can appreciate its real implications. The worrisome aspect of the new law is the fact that it obliterates the distinction between rape simpliciter and aggravated form of rape. Now logically speaking the presence of any aggravating factor, as enumerated in 376 (2) from clause (a) to (n), should have warranted a greater punishment.
But, post-CLAA, both classes of rape will invite same punishment. There appears to be no rational basis as to why rape simpliciter should have the same punishment as awarded in aggravated forms of rape. Moreover, when the scheme of IPC itself recognises classification based on aggravated nature of offence, then punishment should also be in proportion to such classification. Whether this oversight is intentional or result of a ham-fisted drafting is difficult to say but has wide and serious ramifications.
With regard to rape of a woman under 16 years of age, section 376 (2) clause (i) {45} has been deleted; and sub-section (3) {46} has been inserted which provides a minimum punishment of 20 years which may extend to life imprisonment (which means the remainder of that person’s natural life). However, the constitutional validity of the minimum imprisonment of 20 years provided under section 376 (3) is questionable when judged on the ground of proportionality.
At a time when sexual experimentation among adolescents is not an uncommon phenomenon, the severity of the minimum 20 years’ imprisonment, transcends the limits reasonableness and fairness. Let’s assume a girl who is under 16 years of age enters into a consensual physical relationship with a man (18 years’ age).
This being a case of statutory rape, once the fact that the prosecute is below the age of consent (18 years in India), is proved, the question of consent becomes irrelevant and sexual intercourse with her amounts to rape irrespective of her consent {47}. But a sentence of ‘20 years’ imprisonment to the boy, in the absence of judicial discretion (which existed prior to 2013) {48} appears to be unreasonable and too harsh.
The judge will be mandatorily required to sentence the man 20 years’ imprisonment, who will eventually get released at the age of 38 years or may never get released in the event of life imprisonment. The law will also create counterproductive results when the offender is a minor. For instance let’s assume that the offender is 17 years of age, after the enactment of the Juvenile Justice Act (Care and Protection of Children), 2015 {49} (hereinafter JJA) a juvenile may be tried as an adult {50} and may be awarded imprisonment under the provision of IPC (except death and life imprisonment) {51}.
In view of the lacunas in the practical implementation of the JJA and shoddy compliance by law enforcement agencies is always a cause of concern. Various experts have red flagged ambiguities in the JJA which is resulting in abrogation of justice in cases pertaining to juveniles in conflict with law {52}. In such cases, a juvenile in conflict with law may be awarded a sentence of 20 years. This sentence, which is not a short period of time, may cause injustice to a juvenile and frustrate the object of reformation.
While the amendment of 2013 also introduced a mandatory minimum sentence of 10 years, from there to mandatory sentence of 20 years as introduced by the CLAA, without any credible research or justification is a substantial increase. Senior Advocate Indira Jai Singh argues that the mandatory nature of the offence takes away the discretion of the judge. Every sentence must fit the crime {53}. Absence of judicial discretion would make sentencing process more rigid and static. A straight jacket sentencing policy without any scope for judicial discretion in awarding sentences would hamper individualisation of sentencing.
New offences after Amendment 2018 for rape and gang-rape of minor’s
The CLAA creates three new offences (ss. 376AB, 376DA, 376DB, IPC). These offences cater specifically to the rising cases of rape against minors. These new offences make gradation in terms of severity and punishment for raping minors. Section 376AB creates a new offence where minimum punishment for raping a woman less than 12 years of age is 20 years imprisonment which may extend to life imprisonment (which means the remainder of that person's natural life) and maximum sentence may be that of death {54}. Whereas, section 376DA and 376DB {55} are the extension of provisions relating to gang rape.
These provisions have been carved out as to deal with incidences of gang rape where a woman is under 16 years of age or under 12 years of age. Section 376 DA of the IPC has introduced a mandatory sentence of life imprisonment for gang raping of a girl less than 16 years of age. Whereas, section 376DB of the IPC which deals with gang rape of a girl under 12 years of age, comes with enhanced punishment of life imprisonment (which means the remainder of that person's natural life) or even death.
The concept of mandatory sentence provided under section 376DA is a curious case. Section 376DA has been added to the IPC by CLAA to deal with cases of gang rape of a girl less than 16 years of age, and it provides for a mandatory sentence of life imprisonment.
The propriety of mandatory life imprisonment is questionable on the grounds of proportionality. Firstly, mandatory sentence of life imprisonment, in the absence of judicial discretion will curtail individualisation of justice based on circumstances of the offender and the offence. Secondly, judges in view of mandatory nature of sentence may demand a higher standard of proof before awarding a conviction; this might have a negative impact on conviction rates.
The stringent punishment introduced by the CLAA for these new offences may run counterproductive to the reportage of child marriages in India. For instance, it is a well known fact that child marriage is a common phenomenon in India. Despite being illegal, incidences of child marriage (10-17 years age group) in Rajasthan, Haryana, Bihar, and West Bengal; North East states like Tripura, Meghalaya and Assam remain alarmingly high {56}.
Moreover, a sizeable percentage of child marriages fall under the age group of 10-14 years. According to 2011 Census, 2.9% of the national population (girl) was married in the age group of 10-14 years, with highest incidence in Rajasthan (4.2%), Maharashtra (4.2%), Goa (3.9%), and Gujarat (3.7%) {57}
With the introduction of capital punishment in rape cases of woman under 12 years of age and ground reality of prevalent child marriage of girls under 12 years of age, there is a likelihood of underreporting of rape cases where a victim is married.
In other words, no married girl under the age of 16 or even 12 would file a rape case against her own husband, since the punishment in such cases may lead to life imprisonment or even death. It would have been desirable hope that practical issues prevalent in Indian society were taken into consideration before deciding the quantum of punishments.
Another problem which the CLAA possess is with respect to its implications on various provisions of the JJA. The mandatory sentencing under section 376DA and 376DB may run counter to section 21 of the JJA. Section 21 of the JJA prohibits the award of life imprisonment and death sentence to a juvenile in conflict with law.
Whereas, section 376DA provides for a mandatory sentence of life imprisonment (which shall mean the remainder of person’s natural life); section 376DA provides the life imprisonment as its minimum and death sentence as is maximum sentence. In such a case, a juvenile cannot not be sentenced either under section 376DA or 376DB since both provisions have a mandatory minimum sentence which cannot be given to a juvenile in conflict with law by virtue of section 21, JJA. Then the question arises if not under IPC then what will be the quantum of sentence, that too, in the absence of any law? The CLAA is silent on this point.
The provisions of gang rape with regard to minors are the reiteration of the general provision of gang rape provided under section 376D, IPC. The provisions of gang rape are worded in gender-neutral terms with respect to the perpetrator.
Thus it is possible, on the basis of literal interpretation, to convict a woman of raping a minor as part of a gang. However, a woman who happened to be a member of a group and has facilitated the commission of rape, cannot be held guilty of gang rape, as she cannot commit the offence of rape {58} The Supreme Court in Priya Patel case {59} held that the expression ‘in furtherance of their common intention’ in gang rape relates to intention to commit rape and it is inconceivable that women can rape another woman {60}.
Such narrow interpretation of Supreme Court disregards the rule of joint liability which imputes culpability on the ‘associates’ of the wrong-doer by mere participation in the commission of the offence regardless of their nature or extent of participation. The gender neutral culpability in gang rape cases also found support in Justice Verma Committee report {61} which recommended that in cases of gang rape, the punishment shall be awarded to each perpetrator regardless of gender {62}.
However, no such change was incorporated by the 2013 amendment. Similarly, the CLAA has also failed to plug this loophole. Soon after the promulgation of the Ordinance one such case w as reported in newspaper, where a women helped her boyfriend rape her 13 year old niece {63}.
In light of the existing SC judgments on the issue it’s to be seen as to what nature of liability is attributed to the woman perpetrator who assisted in the commission of gang rape {64}.
Capital punishment for new offences after Amendment 2018
The most drastic and striking feature of the CLAA is the provision of death penalty in cases related to rape of minors. Prior to the promulgation of the ordinance and enactment of CLAA, the scope of death penalty in rape cases was only limited to a few aggravated cases of rape. Earlier, only section 376A and 376E, IPC had a death penalty as the maximum sentence in cases of rape.Whereas, section 376A dealt with cases where the death or vegetative state of the victim was caused in the course of the commission of rape, and section 376E covered cases of habitual offenders. The CLAA, has extended the death penalty to all cases of rape where the age of the victim is under 12 years of age. From a long time, there has been a consistent demand from public that rape being a heinous crime should have death penalty so that it will create a deterrent effect on growing incidences of sexual assault.
In a country, where death penalty is perceived as a sina-qua-non to deterrence, the misplaced perceptions about the deterrent nature of death penalty found support in the legislative enactments on Criminal law in 2013 and the recent CLAA.
At a time when studies across the world have questioned the efficacy of capital punishment in deterring crimes and evolving global consensus towards its abolition, the retention and extension of death penalty in India is a matter of distress. The Supreme Court despite upholding the constitutional validity of death penalty has in plethora of cases limited its scope to rarest of rare cases {65}.
The support to the retention and extension of death penalty to rape cases should been objectively analyzed. Before advocating for death penalty or any other stringent punishments under criminal law it is important to understand and objectively appreciate the utility and implication of such punishment. The solutions offered by the state in penal statutes should be a kind of remedy which is not worse than the disease. It must be kept in mind that death penalty is permanent in nature and cannot be reversed. One wrong decision of a judge would lead to extinguishment of the accuser’s life.
Since any liberal or flexible appreciation of evidences would lead to grave consequences on accuser’s life. In such an event, judges are likely to expect a much higher proof of standard of proof. This may result in further lowering the rate of conviction. Besides if the rapist knows that rape carries death penalty he may be tempted to kill the victim so that she will not be available to give evidence against him.
The Malimath Committee also rejected the idea of death penalty for rape cases and called for procedural amendments which results in certainty of punishment rather than quantum of punishment as a real deterrent {66}. Unfortunately, large number of rape cases end up in acquittal {67}.
Another practical aspect which perhaps the law makers either chose to overlook or are oblivious about, is the fact that in substantial number of rape cases involving minors the perpetrators are either from family or the neighborhood.
The NCRB data has revealed that there is an increasing trend of rape cases where the rapist is known to the victim. For example, the crime statistics of NCRB reveals that out of 38,947 cases of rape reported in 2016, in 3891 cases the perpetrator were either the father/ brother/ grandfather/son, any other close family member or a relative. Providing death penalty in such cases will only lead to underreporting of the crime. Senior advocate Indira Jaisingh has argued that given that most child abuse occurs within the family by a known person, a victim will either be reluctant to report the crime or forced to withdraw the complaint, knowing it could result in death, especially in cases where a family member is involved.
Conundrum of life imprisonment
Another issue which deserves mention is the no less ambiguous phraseology- imprisonment for life which shall mean imprisonment for the remainder of that person's natural life. Introduced in 2013 by the amendment act, the phraseology creates a doubt while interpreting the scope of ‘life imprisonment’ under section 53, IPC. Section 53, secondly, IPC provides life imprisonment as a form of punishment.The Supreme Court of India on several occasions has reiterated that life imprisonment means sentence of imprisonment running throughout the remaining period of a convict’s natural life {68}. However, with the introduction of new phraseology the interpretation of the legislative intent with respect to life imprisonment under section 53 becomes problematic and confusing. If the legislature intended to mean that life imprisonment means imprisonment for convict’s remaining natural life, then what was the need to qualify the term ‘life imprisonment’ with the use of the phrase remainder of that person’s natural life in 2013?
It may be argued that in 2013, the legislative intent was to clearly and unambiguously declare the ‘unlimited nature’ of life imprisonment in cases of crime against women. Had this been the case and the legislative intent was indeed to clarify the meaning of life imprisonment then why no corresponding amendments were made in section 53, IPC? As a consequence, such apparent inconsistencies in law gives way to judicial law making, where the Courts have to devote considerable amount of time deliberating upon the scope and meaning of an ambiguous provision.
Macaulay, who declared law as a reflection of legislative will with minimum judicial interference, {69} in a letter to Lord Auckland, then Governor-General of India, said a loosely worded law is no law, and to whatever extent a legislature uses vague expression, to that extent it abdicates its functions, and resigns power of law making to the Courts of Justice {70}.
At a time when, when the parliament jealously guards its functional turf against the judicial encroachment, the argument of parliamentary supremacy over law making falls flat in the light of ambiguous laws passed by it.
Compensation for minor rape victims
The CLAA has made some progressive provisions in the domain of compensatory jurisprudence. All the substantive provisions relating to rape of minors under IPC, as amended by the CLAA, provide a mandatory clause of compensation for the victim. The provisions provide that any fine imposed on the convict shall be paid to the victim and it shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Prior to the Ordinance and its enactment as CLAA there was no such rehabilitative provision for minor rape victims, except in cases of gang-rape.Similar amendments have been made in the Cr.P.C where the benefit of compensation has been extended to cover rape and gang rape of minor girls below 12 years and below 16 years of age. However, a report document of Ministry of Law & Justice, which conducted a case study on rape prosecutions in Delhi, reported that despite adequate compensatory remedies available, there was inadequate guidance and lack of awareness among prosecutrix about their right to avail compensation {71}.
It further reported that in the entire case study there was only one case where the victim was directed by the court to the Delhi Legal Services Authority for compensation and she was unable to proceed owing to lack of guidance {72}.
Amendments 2018 to Cr.P.C
The Cr.P.C is essentially a procedural law which lays down the procedure for administering substantive criminal laws in India. It was enacted in 1973 and came into force on 1 April 1974. Prior to the enactment of CLAA, the Cr.P.C was last amended by the 2013 amendment Act, which included a few procedural amendments with regard to sexual offences.Time-bound investigation and disposal of appeal: Who checks compliance?
For any successful conviction, investigation is an important component in the criminal justice system. But apart from the pre-eminent position of investigation in a criminal trial, speedy investigation is also a significant part of the criminal justice system.Apathy of law enforcement agencies towards investigating rape cases often lead to delays in filling charge sheet, which is often a reflection of faulty investigation. Delay in investigation may lead to tampering of evidence, witness intimidation and subsequently acquittals in trial owing to want of evidence. Prior to the enactment of CLAA, the Cr.P.C provided that 3-month period for the completion of investigation in rape cases involving minor.
The CLAA has reduced this period of investigation from 3 months to 2 months. Further, the CLAA has also reduced this time limit in all offences of rape (including rape, gang rape, and rape of minors under the age of 12 years and 16 years). This is appreciable in a sense that it is another step towards strengthening speedy investigation in rape cases, which often suffer due to delayed investigation by the police. No doubt that delay caused in the investigation process and disposal of appeals are a cause of major concern and dilutes the effect of any stringent law.
The CLAA, by giving a statutory time limit for investigation and appeals in rape cases is a welcome step. However, the CLAA is silent on the consequences which will follow in case the appeal is not disposed of within 6 months or investigation is not completed within 2 months. If the statistics of NCRB are considered, in 2016 there were 55,071 cases for investigation out which in 16,124 cases investigation are still pending from the previous year and 38,947 new cases were reported for investigation {73} As of 2016, with a pendency percentage of 30.3%, there were 16,678 cases which are pending investigation at the end of the 2016.
Every conviction related sentence passed by the trial court is generally appealable to the High Court. Section 374, Cr.P.C which governs the provision of appeals in case of convictions didn’t lay down any specific provisions for disposing of the appeals.
The appellate process was often cited as a major impediment in the achievement of speedy justice {74} Need for streamlining appeals in a time bound process with regard to rape cases was long demanded by the legal experts and Law Commission {75}.
With the promulgation of CLAA, a sub-section has been inserted in section 374, Cr.P.C which mandates that an appeal against a sentence in rape cases must be disposed within 6 months. Despite the establishment of Fast Track Courts (FTCs) for trying crime against women (esp. offences like rape) there is a huge gap in the cherished objective of FTCs and actual ground realities.
The NCRB report of 2016 indicates a high pendency percentage of 87.7% in rape cases, with national conviction rate at modest 25.5%. In 2016 there were 1, 52,165 cases for trial, out which 1, 18,537 are cases in which trial is still pending from the previous year and 33,628 new cases were sent for trial in 2016. The rising number of vacancies in judiciary, inadequate budgetary allocation for infrastructure development, and unrealistic disposal targets for judicial officers, has raised grave questions on judicial capacity to ensure fair and speedy justice in India.
The case study conducted by Partners for Law in Development, also underlined the inconsistencies in procedures and practices of FTCs presently working in Delhi post-nirbhaya. Many lawyers, academicians and experts from time to time have raised serious concerns about procedural irregularities and miscarriage of justice in the proceedings of FTCs. Another problem which lies with the mandatory worded nature of amendments is the absence of any legal consequences for their infraction. In other words, violation of any of such mandatory provisions would not entail any legal or penal consequences either on police or judicial officers.
In the absence of any punitive action against judicial and police officers for failing to adhere to such time limits, these ‘time bound’ provisions may be rendered nugatory {76}. Therefore, it is incumbent upon the legislature that while making ‘time bound’ provisions they should also enact consequential provisions to deal with the cases of noncompliance or infraction.
Amendments 2018 in Bail Provisions
Section 438, Cr.P.C lays down the provision of anticipatory bail. Such bail is available to persons who are under the apprehension of being arrested for a non-bailable offence. The CLAA has amended the provision by incorporating a stringent subsection which makes provision of anticipatory bail inapplicable to the offences of rape and gang rape where the prosecutrix is below 16 years of age.Thus, no court shall have the power to grant an anticipatory bail to a person who is apprehending arrest in a rape case related to minor. Despite legislature putting blanket restriction on the rights of the accused to access anticipatory bail, the courts have been wary of such legislative actions. Since Maneka Gandhi case, {77} constitutional courts have been invoking the doctrine of proportionality for advancing fairness and reasonableness in procedural laws.
At a time when misuse of law has come under the strict scrutiny of the judiciary, the constitutional courts by way of interpretation have devised alternative remedies for providing relief to the accused person. For instance in the state of Uttar Pradesh the provision of anticipatory bail has been made inapplicable since 1976 {78}
In the absence of such provisions in Uttar Pradesh, applications are filed before the Allahabad High Court, for invoking inherent powers of the court under section 482 Cr.P.C., praying to put a stay on arrest or quashing of the FIR. Apart from invoking High Court’s inherent powers under Cr.P.C, the writ jurisdiction under article 226 of the Constitution is also invoked for seeking same relief.
The full bench of the Allahabad High court in Amarvati case, {79} while interpreting section 2(c), 41, 157(1), 437 and 439 of the Cr.P.C. observed that the arrest of the accused was not necessary even after the FIR of an cognizable offence has been lodged {80}. It further ruled that the court, in view of the facts and circumstances of the case, may grant interim bail till the bail application is finally disposed.
The decision of Amravati case was approved by the SC in Lal Kamlendra Pratap Singh v. State of Uttar Pradesh, {81} where it directed all courts in Uttar Pradesh to follow it in letter and spirit, since the provision for anticipatory bail was not available in Uttar Pradesh. Even the Supreme Court in several cases has categorically ruled that despite statutory bar against the grant of anticipatory bail, a constitutional court cannot be barred from exercising its jurisdiction to grant relief to the accused {82}.
Thus, exclusionary provisions introduced by the CLAA with respect to anticipatory bail are not absolute in nature. The record has shown that whenever courts have found any abuse of state power or absence of prima facie case against the accused, they have exercised their judicial powers to grant interim bail to the accused, regardless of statutory dictums. Therefore, there is no certainty that removal of anticipatory bail provision would necessarily lead to the exclusion of judiciary from exercising its powers conferred by the constitution or any other law.
Also, removing anticipatory bail provision will further burden the constitutional courts with petitions seeking bail in anticipation of arrest, under their writ jurisdiction.
CLAA also places limitations on the powers of courts while granting regular bail under section 439, Cr.P.C (in rape cases of minors) by requiring them to give a prior notice to the public prosecutor within 15 days from the date of receipt of the bail application {83}.
The new provisions will entitle the prosecution to give representation and oppose the bail application of the accused, thereby safeguarding the interest of rape victims. The right of representation to prosecution in bail matters is a welcome step in the light of incidences of witness tampering and political patronage to sexual offenders in Kathua and Unnao rape cases.
Gender Neutrality: an inherent conflict between POCSO and IPC
The CLAA has also brought amendment in the POCSO by amending section 42 of the Act. The purpose of section 42 is to give the general law of IPC an overriding effect over POCSO in the matters of punishment, since IPC provides for greater punishment for rape.The only caveat being that the act or omission must constitute an offence under IPC as well as the POCSO. For instance, for penetrative sexual assault the minimum punishment prescribed under POCSO is 7 years’ imprisonment, whereas the parallel provision under IPC prescribes a punishment 10 years (if woman is between 16-18 years) or 20 years (if woman is under 16 years of age).
In such cases, the offender will be sentenced in accordance with the punishment prescribed by IPC. The amendment in POCSO was necessitated due to the inclusion of new offences in IPC, added by the CLAA.
In order to extend the enhanced punishments in IPC to the cases falling under POCSO, section 42 of POCSO was amended and newly created offences (section 376AB, 376B, 376DA, 376DB) were substituted. But in the process, the CLAA has failed to take into account the fact that POSCO is a gender-neutral law, whereas the legal framework of rape under IPC is gender-specific. To put it in context, POCSO uses ‘person’ in its reference to victim and perpetrator; whereas, section 375, 376 and other successive provisions uses the word ‘woman’ and ‘man’ in reference to victim and perpetrator respectively.
This will create a situation where those guilty of committing penetrative sexual assault on a girl below 12 years would get minimum life imprisonment or the capital punishment, by virtue of section 376AB read with section 42, POCSO.
But a lesser punishment (10 years or life imprisonment) will be given for committing penetrative sexual assault on a boy, since there is no parallel provision for rape of men in IPC. Same inconsistency will also prevail over gang rape related provisions, where the same offence committed against a boy and a girl will be treated differently.
The CLAA to the extent that it discriminates between sexes in the matter of punishment fails to satisfy the equal protection clause and is, therefore, violative of article 14 of the constitution. Moreover, it is also important to note that it is in the interest of justice that a public discourse be initiated for introducing gender neutral criminal laws with respect to sexual offences, with appropriate mechanisms to check their misuse. Countries around the world have made suitable amendments in their criminal statutes in order to incorporate gender neutral provisions. There is an emerging consensus about the high prevalence of male and transgender victims of sexual offences.
Conclusion
The criminal law is one of the most vital links which defines the relationship between a state and its citizens. Therefore, it is desirable if this relationship is defined precisely and clearly in the penal statutes.
The criminal law which is seen as the most potent State instrument restricting individual’s fundamental right to life and personal liberty must be free from inconsistencies and ambiguities. However, of late vagueness and ambiguity appears to be the first hand rule of the present day legislative interventions. The three aforementioned qualities of a good code which Macaulay valued have been given a go by when it comes to legislative drafting.
The ambiguous phraseology used in criminal laws reflects their want for precision. Apparent inconsistencies in criminal laws of India make it difficult for ordinary citizens and even legal experts to understand the scope of a particular provision. On the one hand, IPC and its amendments continue to be subject to constant judicial interpretation border lining law-making due to slow progress in law reforms.
Whereas, on the other hand, the legislature and the executive continues to sleep on crucial law reform recommendations made by expert bodies and committees. Thus, the IPC and its recent anti-rape amendments continue to sail from ambiguities, inconsistencies, and legislative apathy towards its reformation.
A hasty legislation, drafted with intent to calm public impulse, may augur well for optics and political rhetoric. However, in the hindsight it compromises the quality of law reforms, and clogs the judicial system with petitions praying for an authoritative declaration on the law. The Parliament which could have brought necessary changes in the IPC, left untouched by 2013 amendment Act, has missed yet another opportunity.
By bringing superficial reforms, the State appears to have washed its hands, from addressing the more pressing need for a comprehensive revision of the penal code. Moreover, the State narrative of deterrence is nothing but a misguided institutional aggression, detached from ground realities.
What is expected from any government is not mere passage of laws but to conduct thorough research, assess its findings and apply reason before making any law. In the absence of a holistic research oriented approach, the legislature will continue to pass ambiguous and omnibus laws which disregard cardinal principles of criminal law jurisprudence, and constitutional values. It serves well to all stakeholders in a criminal justice system to bear in mind that respect and adherence to laws can only be achieved when the law makers recognises the necessity of reconciling individual rights with that of society, along with the State interest in maintaining law & order.
End Notes:
1. Kiran Bedi., Joint Commissioner, Special Branch, Delhi Police.
2. Ashworth, Andrew (1999), Principles of Criminal Law, Oxford University Press, New Delhi, pp91-93.
3. Bhattacharjee, A.M, (1994) Hindu Law and the Constitution, 2nd Ed., Eastern Law House, Calcutta, pp.198-99.
4. Ibid.
5. Mohapatra, Padmalaya and Bijoyini Mohanty (2002), Elite Women of India, APH Publishers, New Delhi.
6. Dhagamwar, Vasudha (2007), Law Power and Justice- the Protection of Personal Rights in the Indian Penal Code, Sage Publication, New Delhi.
7. Section 375 of Indian Penal Code.
8. Section 376-A of Indian Penal Code.
9. Section 376-B of Indian Penal Code.
10. Sec.376-C of Indian Penal Code.
11. Sec.376-D of Indian Penal Code.
12. Sec.354 of Indian Penal Code.
13. Sec.372-73 of Indian Penal Code.
14. Sec.377 of Indian Penal Code.
15. The Criminal Law (Amendment) Act, 2013 https://www.google.com/search?rlz=1C1CHZL_enIN846IN846&sxsrf=ALeKk00Am8XOo6OC5IMDDirBgSpyvT-_Cg%3A1585064748741&ei=LCt6XrL0LLmW4-EPyceFcA&q=http%3A%2F%2Fwww.ycce.edu%2Fadmin%2Fpdf%2FAnti-rape_bill_2013.pdf%3B&oq=http%3A%2F%2Fwww.ycce.edu%2Fadmin%2Fpdf%2FAnti-rape_bill_2013.pdf%3B&gs_l=psy-ab.3..35i39.5349.8805..9758...0.0..0.374.4046.0j11j7j1......0....1..gws-wiz.qTrqExR6iaw&ved=0ahUKEwiyuq2qurPoAhU5yzgGHcljAQ4Q4dUDCAs&uact=5.
16. Ibid.
17. The Criminal Law (Amendment) Act, 2013 available at https://www.google.com/search?rlz=1C1CHZL_enIN846IN846&sxsrf=ALeKk01beH_rzaZv945jCxCtvJ08idkUIg%3A1585064849079&ei=kSt6XtapBNuU4-EPmKiNsA8&q=http%3A%2F%2Fwww.ycce.edu%2Fadmin%2Fpdf%2FAnti-rape_bill_2013.pdf%3B&oq=http%3A%2F%2Fwww.ycce.edu%2Fadmin%2Fpdf%2FAnti-rape_bill_2013.pdf%3B&gs_l=psy-ab.3..35i39l2.2922.6293..7484...0.0..0.474.5594.0j8j15j1j1......0....1..gws-wiz.d-G4rd2DRZQ&ved=0ahUKEwiWtpnaurPoAhVbyjgGHRhUA_YQ4dUDCAs&uact=5.
18. UN Women welcomes India’s Criminal Law (Amendment) Act as a deterrent to violence against women.
19. Ibid.
20. What happened on the night of 16th December 2012? available at https://www.ndtv.com/delhi-news/how-the-police-cracked-the-delhi-gang-rape-case-507825.
21. State v. Ram Singh and Ors., Date of judgement: 10-09-2013
22. How the police cracked the Delhi gang-rape case available at https://www.ndtv.com/delhi-news/how-the-police-cracked-the-delhi-gang-rape-case-507825.
23. Report Summary: Report of the Justice Verma Committee on Amendments to Criminal Law, 2013.
24. Bhattacharya, Rituparna, Criminal Law (Amendment) Act, 2013: Will it ensure women’s safety in public spaces?.
25. Ibid.
26. Recommendations of the Justice Verma Committee.
27. Report of the Committee on Amendments to Criminal Law; January 23, 2013
28. Ibid.
29. Government Ordinance vs. J. S. Verma Committee Recommendations.
30. Ordinance bypasses all vital recommendations of Verma panel available at https://www.google.com/search?rlz=1C1CHZL_enIN846IN846&sxsrf=ALeKk00MORxfUCuh_XA1jHGvU92Tewiz_A%3A1585065376799&ei=oC16XvmeMOnD3LUPh5COuAE&q=30.%09%E2%80%9COrdinance+bypasses+all+vital+recommendations+of+Verma+panel%E2%80%9D+available+at+http%3A%2F%2Fwww.thehindu.com%2Fnews%2Fnational%2Fordinance-bypasses-all-vital-recommendations-of-verma-panel%2Farticle4372835.ece.&oq=30.%09%E2%80%9COrdinance+bypasses+all+vital+recommendations+of+Verma+panel%E2%80%9D+available+at+http%3A%2F%2Fwww.thehindu.com%2Fnews%2Fnational%2Fordinance-bypasses-all-vital-recommendations-of-verma-panel%2Farticle4372835.ece.&gs_l=psy-ab.3..35i362i39l10.9662.114078..114979...3.0..0.0.0.......2....1j2..gws-wiz.....10.EBS9p53CLqg&ved=0ahUKEwj57urVvLPoAhXpIbcAHQeIAxcQ4dUDCAs&uact=5.
31. Ibid.
32. Retrieved,from http://164.100.47.4/billstexts/lsbilltexts/passedloksabha/126%20c_%20%20criminal%%2020law%202018_ls_eng.pdf..
33. Ibid.
34. The Kathua rape case refers to the abduction, rape, and murder of an 8 year old girl, in Rasana village near Kathua (Jammu & Kashmir) in Jan. 2018. The victim belonged to the Bakarwal community. She disappeared for a week before her dead body was discovered by the villagers. Owing political patronage to the accused in the case and possibility of political influence on the trial in Kathua (J & K), the trial of the case was transferred by the SC to Pathankot District & Sessions court (Punjab). See, State of Jammu Kashmir v. Deepak Khajuria @ Deepu (Case registration no. 34/2018)
35. The Unnao rape case refers to the alleged rape of a 17 year old girl (minor) on June 4, 2017. The main accused is Kuldeep Singh Sengar, a MLA of Uttar Pradesh, and a member of the ruling BJP. The case was transferred to CBI owing to public pressure. The Allahabad High Court vide its judgment, Re: An Unfortunate Incident in Unnao of Rape and Murder Published in Various Newspaper v. State of U.P. (W.P [Cri.] 1 of 2018, Date of decision: May 21, 2018) stayed the trial at Unnao Sessions Court and transferred the same to a Special CBI Court at Lucknow (POCSO). For details see, C.B.I v. Kuldip Singh Sengar, (Cri. Case No. 1228/2018)
36. The public outrage forced Government to reconsider the criminal policy and legislative framework with respect to rape. For reviewing the rape laws in India, Government of India appointed a high level committee under Justice J.S. Verma. In the meantime, the Govt. of India promulgated the Criminal Law (Amendment) Ordinance, 2013. The Ordinance was soon replaced and repealed by the Criminal Law (Amendment) Act, 2013.
37. The Criminal Law (Amendment) Ordinance, 2018 (2 of 2018)
38. Available at: http://www.thehindu.com/news/cities/Delhi/was-any-study-done-before-
39. The Criminal Law (Amendment) Act, 2018 (22 of 2018)
40. Indian Penal Code, 1860 (Act 45 of 1860).
41. Code of Criminal Procedure, 1973 (Act 2 of 1974
42. Indian Evidence Act, 1872 (Act 1 of 1872).
43. Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012).
44. Section .376 (2) clause (a) to (n)
45. Clause (i): commit rape on a woman when she is under 16 years of age.
46. Ibid.
47. Dr. K.I. Vibhute argues that such notion of incapacity to consent rests presumable on the ground that a woman under 16 years of age is incapable of thinking rationally and plausibly the presumption of the legislature of the gullibility of woman to be lured into consensual sexual intercourse without appreciating its implications. See, K.I. Vibhute, PSA Pillai’s Criminal Law 824 (Lexis Nexis, 13th edn. 2017)
48. Mandatory minimum sentence was introduced in 2013 with a view to effectively combat sexual crimes against women and eliminate judicial discretion in sentencing of rape convicts. Prior to the 2013 amendment, wide sentencing discretion was conferred on the Courts for meeting exceptional situations. The consequential effect of the proviso under IPC, 1860 (prior to 2013 amendment) appended to different sections of rape was that it empowered the courts to award a below minimum sentence on adequate and special reasons, and diluted the effect of minimum prescribed sentence for rape convicts. See generally, Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press, 2016).
49. Juvenile Justice Act (Care and Protection of Children), 2015 (Act 2 of 2016).
50. Under the JJA, a child in conflict with law (16-18 years of age) may be tried as an adult for heinous offences if the Juvenile Justice Board (u/s 15, 18) and the Children’s Court (u/s 19) decides that there is a need for trial of the child as an adult as per the provisions of the Cr.P.C
51. By virtue of section 21 of the JJA, a child cannot be sentenced to death or life imprisonment
52. E.g. Interview with Prof. Ved Kumari, Dean Faculty of Law, University of Delhi, April 3.
53. Indira Jai Singh Stringent punishment to score political points Deccan Herald, April 28, 2018.
54. Section .5 which corresponds to IPC, s. 376AB: Whoever, commits rape on a woman under twelve years of age 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 that person's natural life, and with fine or with death.
55. Ibid. s.6 which corresponds to IPC, s. 376DB: Where a woman under 12 years of age 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 imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death.
56. Census of India, 2011: As quoted in: National Commission for Protection of Child Rights A Statistical Analysis of Child Marriage in India Based on Census 2011 (2017) p.42-43.
57. Ibid.
58. Ibid.
59. Priya Patel v. State of Madhya Pradesh (2006) 6 SCC 263
60. State of Rajasthan v. Hemraj (2009) 12 SCC 403
61. Justice J.S. Verma, Justice Leila Seth, et.al. Report of the Committee on Amendments to Criminal Law (2013).
62. Ibid.
63. Woman forces 13-year-old niece to drink, lets her boyfriend rape the child in Delhi, available at: https://www.google.com/search?rlz=1C1CHZL_enIN846IN846&sxsrf=ALeKk02LNT4yFV2Fbw53hjNBSutETjXxcg%3A1585064858121&ei=mit6XsKFB72I4-EPsviesA4&q=https%3A%2F%2Fwww.hindustantimes.com%2Fdelhi-news%2Fwoman-forces-13-year-old-niece-to-drink-%09lets-her-boyfriend-+rapethe-+child-in-north-west-delhi%2Fstory-&oq=https%3A%2F%2Fwww.hindustantimes.com%2Fdelhi-news%2Fwoman-forces-13-year-old-niece-to-drink-%09lets-her-boyfriend-+rapethe-+child-in-north-west-delhi%2Fstory-&gs_l=psy-ab.3..35i362i39l10.972.15957..17271...2.0..4.412.1944.0j2j2j2j1......6....1j2..gws-wiz.....10..35i39.iIiHtRDI5vA&ved=0ahUKEwjCusHeurPoAhU9xDgGHTK8B-YQ4dUDCAs&uact=5.
64. In Om Prakash v. State of Haryana (2015) 2 SCC 84, the SC held that the woman who facilitated the commission of gang rape by her husband and another man, guilty of abetting the rape by intentional aid under section 109, IPC.
65. Bachan Singh v. State of Punjab (1980) 2 SCC 684, Machhi Singh v. State of Punjab (1983) 3 SCC 470, Sangeet v. State of Haryana (2013) 2 SCC 452.
66. Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System (Mar. 2003) p.193.
67. National Crime Records Bureau, Report on Crime in India 2016 (Ministry of Home Affairs, 2017) p.153. As of 2016, conviction rate in rape cases stands at 25.5%.
68. Gopal Vinayak Godse v. State of Maharashtra AIR 1961 SC 600, Maru Ram v. Union of India (1981) 1 SCC 107: The constitution benches in both the cases have ruled the law that life imprisonment for the remainder of convict’s natural life, unless its shortened or curtailed by any act of the state by way of commutation, remission or reprieve granted under any law. Also see: Ashok Kumar @ Golu v. Union of India (1991) 3 SCC 498, Subhash Chander v. Krishn Lal (2001) 4 SCC 458, Union of India v. V. Sriharan @ Murugan (2016) 7 SCC 1, Muthuramalingem v. State (2016) 8 SCC 313. For elaborate discussion see supra note 16 at 328.
69. Stanley Yeo, Barry Wright Revitalising Macaulay’s Indian Penal Code in Wing-Cheong Chan, Stanley Yeo et. al. (eds.) Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform 4-5 (Routledge, 2011).
70. Thomas Babington Macaulay, J.M. Macleod et. al., A Penal Code, (Lawbook Exchange Ltd, Reprint edition, 2002).
71. Study conducted by Partners for Law in Development with the support of Department of Justice, Ministry of Law & Justice Government of India And United Nations Development Programme, Towards Victim Friendly Responses and Procedures for Prosecuting Rape: A Study of Pre-Trial and Trial Stages of Rape Prosecutions in Delhi (Jan 2014-March 2015).
72. Ibid.
73. Ibid.
74. See generally, Neha Tara Mehta, The slow road to justice for India's rape victims.
75. Law Commission of India, 172nd Report on Review of Rape Laws, (March, 2000); Law Commission of India, 84th Report on Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence (1980).
76. Recently, a two Judge bench of the SC in State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti (2018) SCC OnLine SC 966 read down a mandatory worded provision of the Arbitration & Conciliation Act, 1996 as directory, since the infraction of impugned provision attracted no legal or penal consequences. Also see, Topline Shoes v. Corporation Bank (2002) 6 SCC 33, J.J. Merchant (Dr.) v. Shrinath Chaturvedi (2002) 6 SCC 635, Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344 at para. 20, State of Kerala v. Alaserry Mohd. (1978) 2 SCC 386, Jaswantsingh Mathurasingh v. Ahmadabad Municipal Corp. (1992) Supp. 1 SCC 5.
77. Maneka Gandhi v. Union of India (1977) 1 SCC 248.
78. The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (Act 16 of 1976), s. 9.
79. Amaravati v. State of U.P. (2005) Cr. L.J 755
80. Allahabad High Court placed reliance on the SC judgement in Joginder v. State (1994)
81. (2009) 4 SCC 437.
82. Hema Mishra v. State of Uttar Pradesh (2014) 4 SCC 453.
83. Ibid.
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