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Criminal Law Amendment Act, 2018 and its enhanced deterrence

In difficult times it is natural for any civil society to demand more security, more stringency, and for the fulfilment of the two, more laws. But the question arises –what is ‘more'? The recent incidents of rape in Kathua and Unnao, have re-ignited the fading memories of December 16, 2012. The massive public outcry and agitation post-Nirbhaya, not only ensured radical amendments in the criminal laws but also awakened the State, society and individual to recognize rape and crime against women as a mainstream societal issue.

Despite stringent laws passed post-Nirbhaya, the collective conscience was taken aback with Kathua rape case, where an 8 year old fell prey to the savage lust of a gang, faced brutal sexual assault and murdered. As a consequence, the Government was prompted to take ‘corrective measures' leading to the introduction of The Criminal Law (Amendment) Bill, 2018 in the Parliament.

The Bill having been passed by Lok Sabha and the Rajya Sabha received the Presidential Assent on August 11, 2018 and came into force as the Criminal Law (Amendment) Act, 2018 (CLAA) from April 21, 2018.

The Act amends four Central Legislations namely: The Indian Penal Code, 1860, The Code of Criminal Procedure, 1973, The Indian Evidence Act, 1872, and The Protection of Children from Sexual Offences Act, 2012.
Under IPC, with regard to the rape of a woman under 16 years of age, sub-section (3) to Section 376 has been inserted which provides punishment in such cases has to be rigorous imprisonment of a minimum 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 of reasonableness and fairness. Let us assume a girl who is under 16 years of age enters into a consensual physical relationship with a man (18years of age). This being a case of statutory rape, once the fact that the Prosecutrix 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.

But a sentence of ‘20 years' imprisonment to the man, in the absence of judicial discretion (which existed prior to 2013) 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. This will create counterproductive results in the future.

The CLAA also creates three new offences (Section 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 below 12 years of age is 20 years imprisonment which may extend to life imprisonment and maximum sentence may be that of death.

Sections 376DA and 376DB are the extension of provisions relating to gang-rape which 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 below 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 or even death.

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 enactment of CLAA, the scope of death penalty in rape cases was only limited to a few aggravated cases of rape. The CLAA has extended the death penalty to all cases of rape where the age of the victim is under 12 years of age. These amendments aim at deterring the increasing trend of sexual violence against minors.

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 sin-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.

However, the ‘deterrence' which the law seeks to bring has been brought about at the cost of proportionality and reasonableness of criminal laws. On a bare perusal of the provisions one can make out the manifold increase in the sentences which the State believes would act as a deterrent to such acts of sexual violence. However, the law fails to reconcile itself with the ground realities of gender related sexual violence in India, and the established principles of criminal law.

From all this, we can say that the IPC and its recent anti-rape amendments continue to ail 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.

Written By Aditya Ghadge Advocate

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