In this article, Saumya Sinha discusses the recent The Criminal Law Amendment Act, 2018.

The Indian Penal Code, 1860 governs the substantive part and the Code of Criminal Procedure, 1973 along with the Indian Evidence Act, 1872 governs the procedural part of the criminal law of the country. These Acts have been amended several times to keep pace with the changing needs of society. One major amendment in these laws was the Criminal Law (Amendment) Act, 2013. This is also commonly known as the ‘Nirbhaya Act’ and it amended the provisions relating to sexual offences. These amendments were the consequence of the brutal rape and consequent death of a 23-year old woman in a bus in Delhi and were based on the recommendations of Justice J.S. Verma Committee Report.

Criminal Law Amendment Act, 2018

The Criminal Law Amendment Act, 2018 is also a consequence of such barbaric incidents which shook the conscience of the entire nation. The demand for making anti-rape laws more stringent had started developing due to various child rape incidents. The infamous Kathua rape case and the Unnao rape case triggered this demand and this gave birth to the amendment of 2018.

Brief facts of Kathua rape case and Unnao rape case

An 8-year-old girl was raped in Kathua, a district of Jammu and Kashmir. It has been alleged that she was kept in a Shrine for several days and raped continuously and later murdered.

The Unnao rape case was another shock to the nation where a teenage girl accused an MLA of raping her in the year 2017. She tried to set herself on fire in front of the MLA’s residence in Unnao, northern Uttar Pradesh.

Timeline of events which led to the amendment

Several state assemblies such as Madhya Pradesh, Haryana, Rajasthan, and Arunachal Pradesh passed stringent anti-rape laws for committing rape of minor girls after the Kathua rape and the Unnao rape incidents.

• Following this, the President had promulgated the Criminal Law Amendment Ordinance on 21 April 2018.
• The Criminal Law (Amendment) Bill was then tabled in the Parliament which replaced the Ordinance.
• The Bill was passed by the Parliament on 6th August 2018.
• The President gave assent to the Bill and thus, the Criminal Law (Amendment) Act, 2018 came into force.

What lead to enactment of Criminal Law Amendment Act, 2018

This followed the Criminal Law (Amendment) Ordinance, 2018 and brought amendments in four major Acts.

• The Indian Penal Code, 1860
• The Code of Criminal Procedure, 1973
• The Protection of Children from Sexual Offences Act, 2012
• The Evidence Act, 1872

The Indian Penal Code, 1860

Before the amendment, Section 376 dealt with punishment for the rape of women in two circumstances.

• Section 376(1) dealt with punishment for rape of a woman in all the circumstances except those mentioned in Section 376(2). The punishment in such cases was rigorous imprisonment of a minimum seven years which may be extended to imprisonment for life. The punishment under this section has now been amended.
• Section 376(2) dealt with punishment for the rape of a woman done by police officers, public servants, member of the armed forces, etc. This punishment has not been amended and is a minimum ten years rigorous imprisonment which may be extended to imprisonment for life.

After the amendment, Section 376 deals with three categories of punishment for rape, apart from rape of women by police officers, public servants, member of the armed forces, etc.

• Punishment for the rape of a woman to be a minimum ten years rigorous imprisonment which may extend to imprisonment for life. {Section 376(1)}. Thus, the quantum of punishment has increased from a minimum of seven years to a minimum of ten years.
• Punishment for rape on a woman under sixteen years of age has been added by the amendment. Punishment in such cases has to be rigorous imprisonment of a minimum twenty years which may extend to life imprisonment. {Section 376 (3}
• Punishment for rape on a woman under twelve years of age has also been added by the amendment. The punishment in such cases is defined as a minimum twenty years rigorous imprisonment which may extend to imprisonment for life. The offender in such cases can also be punished with death penalty. {Section 376AB}

Thus, for the first time, death penalty has been introduced for the offence of rape considering the gravity of the offence.

• Moreover, Section 376DA and 376DB have been added by the amendment which deals with punishment for gang rape on a woman under sixteen years and twelve years respectively. The punishment in such cases has to be invariably imprisonment of life. However, for gang rape on a woman under twelve years of age death penalty can also be awarded.
• Clause (i) of Section 376(2) has been omitted.

The Code of Criminal Procedure, 1973

There have been simultaneous amendments in the Cr.P.C to meet the ends of justice in such cases of rape.

• If a person is accused of rape on a woman of under sixteen years of age, he shall not be granted anticipatory bail under Section 438 by a High Court or a Court of Session.
• The amendment has provided for speedy trial and investigation.
  • The investigation has to be mandatorily completed within two months.
  • The appeal in rape cases has to be disposed within six months.
• Moreover, the amendment has also made two changes in Section 439 of the Code.
  • A proviso has been inserted which states that the High Court or the Session Court has to give notice to the public prosecutor within 15 days of which it receives the bail application of an accused of raping a girl under 16 years of age.
  • A sub-section has been inserted which makes the presence of informant or a person authorized by him mandatory during the hearing of bail application of the accused in such cases.

The Protection of Children from Sexual Offences Act, 2012

• Section 42 of the Act which deals with alternative punishment has been amended to include Sections 376AB, 376DA, and 376DB.

The Evidence Act, 1872

• Section 53A and Section 146 have been amended to make the provision of the Act to be in consonance with the amendments in other Acts.

Various views on the Amendment

The debate on Death Penalty

The amendment in Criminal Law with respect to the introduction of the death penalty triggered the debate whether such punishment addresses the issue at hand.

1. The death penalty will act as a deterrent

The supporters of the punishment of death for committing rape on a woman under twelve years of age argue that the punishment is apt for such a heinous crime and it will act as a deterrent. One of such supporters is retired Justice P.D. Kode of the Bombay High Court who said that such offence is a “dastardly act” and is inflicted on minors who are actually incapable of protecting themselves and therefore, the punishment of death penalty is not harsh.[1] Another opinion is that a person committing rape on a girl whose body has not even matured is an evil and devious act and thus, to be punished by death penalty is the best answer.

However, there are many activists and lawyers who argued against such punishment on various grounds. The argument that the death penalty will act as a deterrent is dismissed as a futile exercise as stringent punishments in a very few cases have led to a decrease in the rate of commission of crimes. Such arguments have been mostly based on two points.

• The 2013 amendment of Criminal Law was targeted towards the same objective i.e. to make the laws stringent so as to create deterrent in the minds of the perpetrators. However, records show that the stringent laws have not helped much in bringing down the rate of crime. Moreover, there was a strong demand after the Nirbhaya incident too that death penalty should be included as a punishment for rape but Justice Verma Committee recommended against it stating that “there is a strong submission that the seeking of the death penalty would be a regressive step in the field of sentencing and reformation.”[2] A similar view was also reiterated by the Law Commission of India in its 262nd report.
• Another ground is that the death penalty is also a punishment in case of an offence of murder. However, this has not stopped the crime and in fact, the crime rate is on increase. The offender is not in the state of mind to analyze the punishment before committing the crime and thus, the death penalty is not an effective deterrent.

2. The death penalty will lead to under-reporting of cases

This is one of the arguments given by people opposing the death penalty. National Crime Records Bureau (NCRB) data shows that rapes in India are mostly committed by a person known to the victims or relatives of the victims. Out of 38,947 reported rape cases in 2016, 36,859 cases were such in which the victims knew the offenders.[3] As a consequence, there is massive underreporting of rape cases and with death penalty as a punishment, this will only intensify. This is because “we are effectively asking the child’s family to risk sending a family member or a known person to the gallows.”[4]

3. Introducing the death penalty has increased the chances of the offender killing the victim

This is another view against the punishment of the death penalty. The punishment for murder under Section 302, IPC is death penalty or imprisonment for life. Thus, effectively the punishment for committing rape on a minor girl and committing murder has become same. Therefore, now the chances are high that the offender will make sure that the victim does not survive. This point was also raised by the Delhi High Court when a Bench comprising of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar remarked “Have you thought of the consequence to the victim? How many offenders would allow their victims to survive now that rape and murder have the same punishment?”[5] Thus, this might result to be of fatal consequence for the victims.

The shift in focus

One of the major arguments against the amendment is that this is a step to pacify the public and a step away from addressing the real problem. The real and persisting problem lies in the criminal justice system of the country.

1. The focus should be on taking steps to increase the conviction rate. In 2016, a total of 38,947 cases of rape were reported in the country. Of these, the Courts completed trial in 18,552 rape cases. However, with a conviction rate of 25.5%, the accused in 13,813 cases were acquitted. Similar statistics can be seen in cases of child rape. Out of 6,626 cases of which trial was completed, 4,757 resulted in the acquittal which means a conviction rate of 28.2%.[6] Thus, the need of the hour is to focus on addressing these issues.
2. Another issue which requires greater attention is providing protection to the victim as well as the witness. Because of lack of any such system, more often than not the victim, witness or the family members face threats and intimidation. There is a need to create a conducive environment for the victim to report the crime and provide protection to the victim as well as the witness. Thus, there are more intricate issues to deal with and until these are resolved it is difficult to control the rate of such crimes.

The Amendment makes the difference of Section 376(1) and 376(2) ineffective

Section 376 (1), IPC deals with the punishment for the offence of rape in general, i.e. for all the cases except for those provided in Section 376(2). The latter section deals with the punishment for rape if the offence is committed by a specific person or the offence is committed in specific circumstances. There are several categories mentioned in the section such as a police officer, a public servant, a member of the armed forces, a person in a position of trust or authority, etc. Before the amendment, the minimum punishment under Section 376 (1) was seven years imprisonment and in Section 376(2) was ten years imprisonment. This difference was created as the crime becomes more heinous if committed by persons who are held high in the eyes of the public due to their position or if committed in specific circumstances. However, after the amendment, the minimum punishment in both the sub-sections is ten years of imprisonment and thus, there remains no difference.

The difference in the punishment for rape of minor boys and minor girls

The Protection of Children from Sexual Offences Act, 2012 was enacted because the sexual offences were dealt under IPC for all the victims and a need was felt that the children who are victims of sexual violence need special protection and care and hence, a separate legislation. This is a gender neutral legislation as it defines a ‘child’ as the one who is under the age of 18 years. The maximum punishment under this Act is imprisonment for life and the maximum punishment for a sexual offence under IPC for minor girls has become death penalty. Thus, a difference has been created by the amendment of 2018 as punishment for rape on minor girls has become more stringent as compared to rape on minor boys.

The problem in case of no anticipatory bail

The amendment in Cr.P.C provides that no anticipatory bail shall be granted in cases of rape on a woman under sixteen years of age. Thus, now the accused has no provision to get an anticipatory bail even if there are chances of being booked under a false case.

What other states should learn from Madhya Pradesh on successfully implementing the Criminal Amendment Act of 2018

The Criminal Law (Amendment) Act, 2018 through the amendment of Code of Criminal Procedure, 1973 provides for speedy trial and investigation in rape cases. Having considered all the views in favour and against the amendment, it is also important to throw some light on the practical results of the amendment.

• The state of Madhya Pradesh has shown a successful implementation of the provisions of the amendment. The state has completed the investigation of rape cases within the time frame i.e. within 60 days in 72% of the cases.
• In a rape case in Bhopal, the arrest was done within 12 hours and the investigation was completed in 72 hours which also included recording the statement of 25 witnesses and the accused was awarded death penalty.
• In another case, the trial for rape of a 4-year-old was completed in a day after four days probe.
• These statistics clearly show that the provision laid down in the amendment is an achievable task and can lead to improvement of delivery of justice all over the country.
• Even the Centre has applauded the government of Madhya Pradesh for the successful implementation of the amendment Act and has asked other states to follow the same.

Conclusion

The Criminal Law (Amendment) Act, 2018 has brought significant changes in the criminal law of the country. These amendments have the objective of making anti-rape laws more severe so as to decrease the rate of crime. The time frame of investigation and appeal, if implemented properly, can bring down the crime rate. However, these amendments need to be supplemented with other changes in the criminal justice system for overall effective results.

References

[1] Sonam Saigal, Activists, Lawyers split over death for minors’ rape, The Hindu (April 23, 2018, 12:24 AM), https://www.thehindu.com/news/cities/mumbai/activists-lawyers-split-over-death-for-minors-rape/article23639421.ece.

[2] Justice Verma Committee Report, at 245.

[3] Soibam Rocky Singh & Jaideep Deo Bhanj & Saurabh Trivedi, Better conviction rate not death penalty will deter sexual offenders, The Hindu (April 23, 2018, 12:00 AM), https://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/better-conviction-rate-not-death-penalty-will-deter-sexual-offenders/article23640863.ece.

[4] Anup Surendranath, Ineffective and arbitrary, The Hindu (March 13, 2018, 12:00 AM), https://www.thehindu.com/todays-paper/tp-opinion/ineffective-and-arbitrary/article23166394.ece.

[5] Staff Reporter, Was any study done before bringing out rape ordinance, The Hindu (April 24, 2018, 12:00 AM), https://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/was-any-study-done-before-bringing-out-rape-ordinance/article23652406.ece

[6] Soibam Rocky Singh & Jaideep Deo Bhanj & Saurabh Trivedi, Better conviction rate not death penalty will deter sexual offenders, The Hindu (April 23, 2018, 12:00 AM), https://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/better-conviction-rate-not-death-penalty-will-deter-sexual-offenders/article23640863.ece.