This article is written by Pragya Agrahari of Amity Law School, Lucknow. This article provides a detailed analysis of the changes made by the Criminal Law (Amendment) Act, 2013 in various statutes, the reasons behind the amendment and its criticism.
It has been published by Rachit Garg.
On the cold night of December 16, 2012, a 23-year-old medical student was brutally gang-raped in a moving bus and was thrown in an unconscious state in the middle of the road. This incident shook the whole nation and led to widespread rage and protests from all over the country. It prompted the government to rethink the efficiency of the current legal safeguards provided for the protection of women. In order to review the laws related to sexual offences and to give recommendations for improving the current regime, the government instituted the Committee headed by Justice J.S. Verma. The Committee laid the foundation of the Criminal Law (Amendment) Act, 2013, which received the assent of the President on 2nd April, 2013. This Act amends four laws, namely, the Indian Penal Code 1860, the Code of Criminal Procedure 1973, the Evidence Act 1860, and the Protection of Children from Sexual Offences Act, 2012.
Reason behind the Criminal Law (Amendment) Act, 2013
Nirbhaya Case [Mukesh and Anr v. State (NCT of Delhi) and Ors]
Facts of the case
This case is famously known as the Nirbhaya case. On 16 December 2012, a 23-year-old woman, a medical student, was gang raped by six men on the bus. She had boarded with a male friend on the way home. The six men included a driver and a juvenile. Firstly, the men started abusing them, passing obscene remarks, and then they assaulted her male friend and dragged her to the back of the bus to commit rape. She was brutally beaten and raped, and the perpetrators inserted a rod into her body and then, both of them were thrown naked in the middle of the highway. On 29th December 2012, the woman, named Nirbhaya, succumbed to her injuries in a hospital in Singapore due to multiple organ failure, internal bleeding, and cardiac arrest. The Hon’ble Justice Dipak Misra has described this story as “from a different world where humanity has been treated with irreverence.”
Charges framed on the accused
The following charges were framed against the perpetrators:
- Section 120-B IPC: Punishment for criminal conspiracy
- Section 365, 366 IPC: Kidnapping or abducting
- Section 307: Attempt to murder
- Section 376 (2)(g) before the amendment, and Section 377 IPC: gang rape, unnatural offences
- Section 395, 396 IPC: Punishment for dacoity, dacoity with murder
- Section 302 IPC: Punishment for murder
- Section 201 IPC: Causing disappearance of evidence of an offence or giving false information
- Section 412 IPC: Dishonestly receiving property stolen in the commission of dacoity
The Court, in its judgement, convicted four of the six accused of the said charges. The convicts were sentenced to the death penalty. The proceedings were abated against the accused, Ram Singh, who committed suicide during the trial. The juvenile involved in the case was tried separately under the Juvenile Justice Board and was convicted and sent to a reformation home for three years. The Supreme Court upheld the death sentence confirmed by the High Court as the aggravating factors in the case outweighed the mitigating factors. Moreover, all the appeals of the accused were dismissed by the court. The Court held this case in the category of “the rare of the rarest,” a doctrine established in the case of Bacchan v. State of Punjab (1980), keeping in view the gravity and heinousness of the way in which the crime was committed.
Justice Verma Committee
After this incident, the government instituted the Committee headed by Justice J.S. Verma to look into the needed amendments in the criminal law to make laws providing for the protection of women more stringent and to add various aspects that were required considering the rise in the number of cases of crimes committed against women. It was constituted on 23rd December 2012 and committed to submitting the Committee Report in 30 days, in view of the urgency and promptness that the Nirbhaya case demands. The basic purpose of this Committee was to recommend amendments in the criminal law to provide speedy trials in cases, especially crimes against women.
Key recommendations of the Justice Verma Committee
- It opined on life imprisonment for the offence of rape and rejected the death penalty as a punishment for rape in the view that it fails to have a deterrent effect on society.
- It is recommended to expand the scope of criminal law to include sexual assault on men and homosexual, transgender or transsexual rape.
- It also advocates for the removal of the Section from the law which legalises “marital rape”.
- The offence of “sexual assault” should include all forms of non-consensual or non-penetrative sexual activity.
- The Committee also recommends the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which was a Bill pending before the parliament at that time.
- It opined to make the offence of “acid attack” a separate offence, which was earlier punishable under the offence of “grievous hurt”.
- It has also recommended some reformation in the medical examination of the rape victim as it recommends discontinuation of the two-finger test.
- It also suggested the setting up of a Rape Crisis Cell to provide legal assistance to rape victims.
- The police are duty bound to register rape complaints and to report any rape case that comes to their knowledge. If they fail to perform their duty, they must be held liable for punishment according to the provisions of the Act.
- The Committee also recommends conducting literacy programmes for the children to impart sex education to them.
- It also suggested some electoral reforms under the Representation of the People Act, 1951, and opined that candidates should be disqualified if one is facing criminal charges for sexual offences.
Key changes made after the Criminal Law (Amendment) Act, 2013
Indian Penal Code, 1860
The various provisions added or amended in the Indian Penal Code after the Criminal Amendment 2013 are-
These provisions were added to the Code as a consequence of the case of Laxmi v. Union of India (2015), in which a sixteen-year-old girl was attacked with acid. After this incident, the need for stringent provisions to counter the said offence was realised.
- Under Section 100, a ground was added in the general exception of the “right to private defence”, that is, an act of throwing acid or an attempt to throw acid. It means a person can now use the right to private defence in the case of an acid attack.
- New provisions, namely, Section 326A and Section 326B, were inserted. Section 326A makes the offence of “acid attack” punishable by a minimum of 10 years imprisonment extending to life imprisonment and a fine, whereas 326B makes the attempt to throw acid an offence punishable by a minimum of 5 years extending to 7 years imprisonment and a fine.
This Amendment inserted four other sexual offences in view of the rising statistics of sexual harassment cases in the country. These are-
- Sexual Harassment (Section 354A)
This Section includes acts like making physical contact, demanding sexual favours, and showing pornography to a woman by a man. For these offences, a man can be punished with rigorous imprisonment, which may extend to 3 years. It also covers the offence of making sexually-coloured remarks to a woman, for which there is imprisonment which may extend to one year.
- Assault or criminal force with intent to disrobe women (Section 354B)
This Section makes an act of assaulting or threatening a woman using criminal force to disrobe her or forcing her to be naked punishable by a minimum imprisonment of 3 years, which may extend to 7 years, and a fine.
- Voyeurism (Section 354C)
The word “voyeurism” literally means “an act of gaining pleasure from watching others naked or engaged in sexual activity.” This Section makes any such acts committed by a man, punishable by a minimum of 1-year imprisonment, which may extend to 3 years, and a fine. It can also include the act of watching or taking photos of a woman when they are engaged in private activity. If a man is convicted of the same offence more than once, he shall be punishable with a minimum of 3 years of imprisonment, which may extend to 7 years.
- Stalking (Section 354D)
This Section includes the act of following or attempting to make contact with a woman who has already shown disinterest in a man or monitoring her use of the internet, email or other electronic communication means. This conduct by any man will be punishable by imprisonment which may extend to 3 years, and for repeated offenders, the punishment will be imprisonment which may extend to 5 years and a fine.
There are some exceptions to this offence; that is, these acts will not amount to “stalking” if the man proves his act for the following reasons-
- If the man was entrusted with preventing or detecting the crime by the State,
- If the man has done such acts under any law or while complying with any condition under any law,
- If it was reasonable and justified.
This Criminal Law (Amendment) Act, 2013 widens the ambit of the offence of “rape” so as to provide harsher punishments for the more grievous acts. It also enlarged the provision to cover certain non-penetrative acts like oral sex and inserting any object or any other part of the body into a woman’s body as an offence under the definition of “rape” under Section 375. Although under Section 376, the punishment for the offence of “rape” has not been enhanced, after the Criminal Law Amendment Act 2018, it was later increased to a minimum of 10 years imprisonment, which may extend to life imprisonment. However, this Amendment of 2013 has added provisions and enhanced punishment for more grievous forms of rape like-
|Section 376A||Causing death or resulting in a persistent vegetative state of the woman||Rigorous imprisonment for a minimum of 20 years which may extend to life imprisonment till the remainder of the person’s life or death sentence.|
|Section 376B||Sexual intercourse by the husband during separation||Imprisonment for a minimum of 2 years which may extend to 7 years and a fine.|
|Section 376C||Sexual intercourse by a person in authority (fiduciary relationship, public servant, jail authorities, institutions for women and children, or hospital authorities)||Rigorous imprisonment for a minimum of 5 years which may extend to 10 years and a fine.|
|Section 376D||Gang rape||Rigorous imprisonment for a minimum of 20 years, which may extend to life imprisonment till the remainder of a person’s life.|
|Section 376E||Repeat offenders||Life imprisonment till the remainder of a person’s life or death sentence.|
Provisions for the authorities
Section 166A and Section 166B were inserted after the amendment to make the authorities, like public servants or hospital authorities, liable if they failed to discharge their duties against the victims of the crime.
- Section 166A holds any public servant liable if they failed to obey the directions of law or to conduct an investigation wherever it necessitates or especially if failed to register an FIR in cases of sexual offences under Section 154 of the Code of Criminal Procedure. Any such public servant would be liable for the punishment of imprisonment for a minimum of six months which may extend to 2 years and a fine.
- Section 166B similarly, holds the hospital management or staff liable if they failed to provide proper treatment free of cost, including first aid, to the victim of the cases of sexual offences, as provided under Section 357C of the Code of Criminal Procedure. It was irrelevant whether the hospital was a private or public hospital. Any such contravention would be punished with imprisonment, which may extend to 1 year or a fine or both.
Code of Criminal Procedure, 1973
The Criminal Law Amendment Act 2013 has made changes to the Code of Criminal Procedure, 1973 so as to provide a congenial atmosphere for women while conducting investigations, trials, and examinations and to adapt new provisions inserted in the Indian Penal Code in the First Schedule of the Code of Criminal Procedure. Some key changes made in the Code are as follows-
Relief measures for the victims of sexual offences
- Section 154, Section 161, and Section 164: Section 154 and Section 161 were amended to include the provision which requires the recording of the statements of the victim to be done by only a female police officer. In addition, Section 154 also provides that if the victim is mentally or physically disabled, then for the comfortability of the victim, the recording of statements should be done at their residence or any other convenient place in the presence of an interpreter or special educator, and that the recording should be videotaped. Section 164 also added the provision for the assistance of an interpreter or special educator and videography of the statements. Moreover, it also held the statements under Section 164 to be considered as statements in lieu of examination-in-chief that can be cross-examined at the time of trial.
- Section 273: It was amended to include the provision which requires the court to take appropriate measures so that women under the age of 16 years and victims of rape or sexual offences should not be confronted by the accused while assuring the right of cross-examination to the accused.
- Section 357C: It added the provision which requires hospitals, whether public or private, to provide treatment, free of cost, to the victims of sexual offences and to inform about the case to the police authorities immediately.
Measures taken to make the provisions more stringent
- Section 197: This Section requires sanction from the government to prosecute judges, magistrates, or public servants who are accused of any offences which they have committed in the discharge of their official duty. This Amendment adds ‘explanation’ in this Section stating that in cases of sexual offences, no previous sanction is required to be taken from the respective governments for the prosecution of public servants, magistrates and judges.
- Section 309: Clause(1) was amended for this Section to include the provision which requires that all the proceedings related to inquiry or trial should be completed within a period of 2 months from the date of the charge sheet, in the cases of sexual offences.
Indian Evidence Act, 1872
The important provisions which were added or substituted in the Act after the Amendment are as follows-
Exclusion of previous sexual experiences in evidence
Section 53A was added in the Act which declares that during prosecution for sexual offences, the character of the person or the previous sexual experiences of the victim is irrelevant as the evidence for the consent or quality of the consent of the victim.
Presumption of the absence of consent
Section 114A was added in the Act, which states that it was sufficient for the victim of the sexual offences to state before the court in her evidence that she had not consented to the sexual intercourse so as to presume the absence of consent in the case.
Nature of the questions asked in cross-examination
Section 146 of the Act was amended to include the provision which states that no questions can be asked from the victims of sexual offences during cross-examination which are immoral in nature or which are related to previous sexual experiences of the victim so as to prove the consent or test the quality of the consent by the victim.
Provision for the dumb witnesses
Under Section 119, the witnesses who are unable to communicate verbally can give their statements in other ways, by writing, by signs, etc., which shall be deemed as oral evidence, and such witnesses should provide the assistance of an interpreter or special educator, and such statements shall be videotaped.
Protection of Children from Sexual Offences Act, 2012
Section 42 of this Act was amended in order to declare that if the offence was committed under the POCSO Act and the same offence is also punishable under provisions related to sexual offences in the Indian Penal Code, the offender shall be given the punishment under this Act or the Indian Penal Code, which provides graver punishment for such an offence.
Points of difference between the recommendations of the Committee and the changes made under the Criminal Law (Amendment) Act, 2013
- The Committee does not recommend the punishment of a “death sentence” for the culprits of sexual offences like rape, gang rape, etc., as in their view, it has failed to have a deterrent effect on society. Whereas the Act provided the punishment of “death sentence” in serious forms of rape like causing the death of the victim or causing the victim to fall into a vegetative state and for repeat offenders.
- The Committee recommended the criminalisation of “marital rape”, that is, sexual intercourse by the husband with the wife without her consent. But the Criminal Law Amendment Act of 2013 does not criminalise it.
- The Criminal Law (Amendment) Act, 2013 rejects the proposal of the Committee which prescribes that candidates facing charges for sexual offences should be barred from contesting elections.
- The Committee has also recommended that the senior officials of the police and army should be held liable for the sexual offences committed by their juniors, which was also rejected by the Criminal Law (Amendment) Act, 2013.
- The Committee advised making provisions for sexual assaults committed against males, transgenders or homosexuals, but it was not included in the Amendment Act.
Criticisms of the Amendment
Not a gender-neutral law
In view of the recent cases of sexual assaults committed against males, transgenders or homosexuals, the Committee calls for the inclusion of the provisions which would provide relief to such victims. But this recommendation was rejected. The criminal law was criticised for being women-centric only. It left out such crimes committed against communities other than women. The current law sees only men as culprits and only women as victims, but the current scenario was different. According to one report released by the Ministry of Justice in the UK, of 473,000 adults being victims of sexual offences on average per year, around 404,000 are females and 72,000 are males. Despite these trends, this Amendment fails to provide gender-neutrality in the provisions of the respective laws.
Non-inclusion of provisions for marital rape
This Amendment was also criticised for not criminalizing “marital rape”, even after the recommendation from the Committee to do so. Section 375 carries an exception which states that sexual intercourse by a husband with his wife, not below 15 years of age, is not rape. The consequence of this provision is that it saves any man who forces his wife into sexual intercourse without her consent from liability. Therefore, many jurists call for striking down this exception, and this Amendment fails to do so.
In his verdict on the question of marital rape, Justice Shakdhar (Delhi High Court) argues that “the fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanising. Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically, and emotionally.”
Non-debarment of politicians charged with sexual offences
The recommendation provided by the Committee includes the provision to debar candidates accused of sexual offences from contesting elections under the Representation of People Act, 1951, but the Criminal Law (Amendment) Act, 2013 does not provide such provisions. The recent data from the affidavits of the candidates contesting elections in the states of Uttarakhand, Punjab and Goa shows various candidates charged with serious offences. In Punjab, two were accused of rape cases and five were accused of outraging the modesty of women. In Uttarakhand, one was accused of rape and four were accused of outraging the modesty of a woman. Similarly, in the state of Goa, one was declared a rape case and five were found to have outraged the modesty of women. Despite these facts, the Amendment Act overlooked the impact of such trends on society as a whole.
Other amendments to Criminal Law
Criminal Law (Amendment) Act, 2018
This Amendment further makes the laws stricter in their nature and adds some more provisions in the criminal laws which were needed in view of the recent cases. Some provisions added to the Indian Penal Code are as follows-
|Section 376AB||Rape of a girl under the age of 12 years||Rigorous imprisonment for a minimum of 20 years which may extend to life imprisonment till the remainder of a person’s life or death sentence.|
|Section 376DA||Gang rape of a girl under the age of 16 years||Life imprisonment till the remainder of a person’s life and a fine.|
|Section 376DB||Gang rape of a girl under the age of 12 years||Life imprisonment till the remainder of a person’s life and a fine or death sentence.|
In addition to that, the most important change brought about by this Amendment was increasing the punishment for the culprits of the offence of rape from a minimum of 7 years imprisonment to a minimum of 10 years imprisonment, which may be extended to life imprisonment and a fine under Section 376.
Once, an Indian philosopher, Swami Vivekananda, stated that “the best thermometer of the progress of a nation is its treatment of its women.” It means the country that provides protection to women from such heinous crimes and creates a congenial environment for women to realise their dreams and aspirations would be considered the most progressive one. It is evident from the fact that developed countries like Spain, Singapore, Norway, and Canada have comparatively much lower rates of crimes against women. On the contrary, India stands as the ninth most dangerous country for women in the world, according to the World Population Review 2022. It reflects the need for some more reformations in the current regime.
The Criminal Amendment Act, 2013, no doubt, emerged as a revolutionary amendment when it came to the protection of women, as it provides various safeguards to women in cases of acid attacks, and sexual offences. But it is not sufficient to put the rising cases of crimes against women to a halt. It needs more amendments to adapt to the gravity and seriousness of the rising rates of crimes committed against women, for example, sexual offences committed by the use of electronic devices. India needs to further revise its various statutes and institutions so as to incorporate these changes and to provide harsher punishments for the offenders and enabling conditions for the victims. Only then can the dream of a better India for women be realised.
Frequently Asked Questions
Which statutes were amended under the Criminal Law (Amendment) Act, 2013?
The Criminal Law (Amendment) Act, 2013 amends four laws, namely-
- The Indian Penal Code 1860
- The Code of Criminal Procedure 1973
- The Evidence Act 1860
- The Protection of Children from Sexual Offences Act, 2012
In the backdrop of which incident was the Criminal Law (Amendment) Act, 2013 enacted?
The Criminal Law (Amendment) Act, 2013 was enacted in the backdrop of the Nirbhaya Gangrape case, which took place on the night of 16th December 2012 in Delhi.
Who headed the Committee which was formed to look into the needed amendments in the criminal law after the Nirbhaya case?
The Committee headed by Justice J.S. Verma was constituted on 23rd December 2012 to recommend the amendments needed in the criminal law.
What are the provisions added to the Indian Penal Code, 1860 after the Criminal Law Amendment Act 2013?
The major provisions added in the Indian Penal Code, 180 after the Criminal law Amendment Act 2013 were:
- Provisions for acid attack- Section 326A and Section 326B,
- Provisions for new sexual offences- Section 354A, Section 354B, Section 354C and Section 354D,
- Amendments in sections relating to rape- Section 376A, Section 376B, Section 376C, Section 376D, and Section 376E.
What are the major criticisms of the Criminal Law Amendment Act 2013?
The major criticisms of the Criminal Law Amendment Act 2013 are-
- Not a gender-neutral law
- Non-inclusion of provisions for marital rape
- Non-debarment of politicians charged with sexual offences
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