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This article is written by Upasana Dash, a student of Madhusudan Law College, Odisha. This is an exhaustive article which deals with the Disha Act, 2019, the new law of Andhra Pradesh.

Introduction

On December 13, 2019, Andhra Pradesh State Legislative Assembly passed collectively the Disha Act, 2019 (Andhra Pradesh Criminal amendment law, 2019) as a tribute to a veterinary doctor raped and murdered brutally in Hyderabad. The Act provides the death penalty for offenses like rape, gang rape, and speeding up trials of such offense within 21 days. The Act visualizes the execution of investigation within 7 working days and trial in 14 days from the date of filing the charge sheet, for gathering sufficient evidence and the passing of judgment, within the time period  21 days.

The Andhra Pradesh Disha Act, 2019 also provides punishment for other offence like sexual assault and harassment against women and children and include Section-354E, 354F, 354G in Indian Penal Code, 1860, which will define harassment in women, sexual assault on children, and aggravated sexual assault on children, and also amends certain provisions of Code of Criminal Procedure, 1973. This was passed in the Assembly by State Home Minister M. Sucharita which is called “revolutionary” by the ruling YSR Congress.

This Act authorizes the State Government to constitute a special police team, governed by deputy superintendent of police-ranked officers, to investigate the offences. This Act will enable one or more special courts for speedy trial of certain offences against women and children. The appeal against the sentence has to be disposed of within six months as per Disha Act, 2019. The Section 376 (rape), 376D (intercourse by the member of the management of staff of the hospital with any woman of the hospital), and 376DA (gang rape of woman below 16 years) will be amended to add the death penalty for offenses listed under sections dealing with assault, sexual harassment and rape in 354F, 354G, 376, 376A, 376AB, 376D, 376DA, 376DB, or 376E of the Indian Penal Code, 1860.

Disha Act, 2019 is a contributory acknowledgment to a veterinarian. She was raped and murdered on 27th November in Hyderabad. She was reportedly kidnapped by the four men and her body was found around 30km away on the NH-44. As per the investigation report, the incident was pre-planned by the accused. On morning 6 December those accused encountered when they were trying to escape from the police.

On December 9, Andhra Pradesh Chief Minister YS Jagan Mohan Reddy praised the Telangana Government in his speech along with Chief Minister K. Chandrasekhar. He also added strong punishment and speedy trial of such offenses as sexual assault, rape, gang rape against women, and children.

Highlights of the Disha Act

  1. Introducing women and children offenders registry 
  • The Andhra Pradesh Government will establish, operate, and maintain a register in electronic form, to be called the women and children offenders registry.
  • The registry will be made public and available for law enforcement agencies.
  1. Exclusive punishment of death penalty for rape. 
  • It has prescribed the death penalty for rape cases where there is adequate evidence.
  • Provision is given by amending Section-376 of the Indian Penal Code, 1860.
  1. Reducing the judgment period to 21 days.
  • The judgment will have to pronounce within 21 days from the date of offense in cases of rape with substantial conclusive evidence.
  • The investigation shall be completed within 7 working days and the trial shall be completed in 14 days.
  1. Stringent punishment for sexual offenses against women and children. 
  • It prescribes life imprisonment for other sexual offenses against women and children.
  1. Punishment for women to harassment of women through social media. 
  • In case of harassment of women through social media, the guilty shall be punishable with imprisonment.
  • The term of the imprisonment may extend to 2 to 4 years.
  1. Establishment of special courts in every district of Andhra Pradesh.
  • The establishment of special courts in every district of Andhra Pradesh and these courts will deal especially with offenses against women and children.
  1. Reducing appeal to 3 months for disposal of the rape case. 
  • The period of disposal appeal cases has been reduced to 3 months instead of 6 months.
  1. Contribution of a special police team and appointment of the special public prosecutor in special courts. 
  • Recruitment of public prosecutors in special courts, and a special police force team will be constituted headed by the DSP for investigation of offenses against women and children.

Before and after the Disha Act

Introducing women and children offenders registry

The Union Government of India has initiated a National Registry of Sexual Offenders, but data has not been computerized yet, and it has been kept confidential. Under this scheme, the State government will maintain a record of such data digitally and this information may avail in the purpose of law enforcement agencies.

Exclusive punishment of death penalty for rape crimes

Under present laws, the convicted person shall be sentenced to life imprisonment or death sentence for extreme cases. If adequate evidence is there, Andhra Pradesh’s government has given exclusively death sentence for rape crimes. Provision is given to amend section-376 of Indian Penal Code, 1860, and Code of Criminal Procedure, 1973.

Reducing the judgment period to 21 days

As per the Nirbhaya Act, 2013 and Criminal Amendment Act, 2018, the judgment period is 4 months; 2 months for investigation and 2 months for trial. According to the Disha Act, 2019 for rape victims with substantial conclusive evidence, the total judgment period is 21 days. 7 working days for investigation and 14 days for judicial trial. The reduction of the judgment period to 21 days will be added to Section-173 and Section-309 of Code of Criminal Procedure, 1973, and introduce additional provisions to the said Act.

Punishment for harassment of women through social media, etc.

If there are any harassing texts from social media, Facebook, emails, or by any means of digital harassment, the offender will be held liable with imprisonment though there is no such provision in the Indian Penal Code, 1860. The term of imprisonment may extend to 2 years for the first conviction, and 4 years for the second conviction.

Rigorous imprisonment for sexual offenses against children

Under The Protection of Children from Sexual Offences POCSO Act, 2012, in offenses like harassment or sexual assault, the offender shall be liable with imprisonment which may extend 3 years to 7 years. The new Act imposes life imprisonment for offenses like sexual harassment against children. Three sections have been included from the Indian Penal Code, 1860, under “sexual assault on children” is Section-376E, 376F, 376G.

Exclusive special courts in every district of Andhra Pradesh

Special courts deal with cases concerning offenses against women to ensure speedy trial. The Andhra Pradesh government ordered the establishment of special courts in every district. Those offenses are exclusively against women and child i.e rape, gang rape, acid attacks, stalking on social media, harassment. Andhra Pradesh State Government also established “Andhra Pradesh Special Courts for Specific Offenses against Women and Children.”

Reducing the period of appeal

Reducing the period of appeal to 3 months for disposal of rape cases against women and children. The current period of appeal for the disposal of rape cases is 6 months. It has been reduced to 3 months. Certain amendments are made under Section-374 and 377 of Code of Criminal Procedure, 1973.

Constitution of the special police force

A special police force will be constituted headed by DSP for investigating purposes exclusively offenses against women and children. The government will assign a special public prosecutor for each special court.

The legal and moral aspect of capital punishment to rapists under the Act

In Nirbhaya case of 2012, despite having the public, police force, and the judiciary overriding the trial took nine months. As per the Disha Act, 2019 Andhra Pradesh, completion of investigation within 7 days and trial in 14 days. This time limit is a short period to identify the criminal and satisfy all the legal obligations under the Code of Criminal Procedure, 1973 with a fair trial along with the provisions of the Indian Evidence Act, 1872.

Trigger for Disha Act, 2019, because of the brutal murder and rape case of a veterinary doctor in Hyderabad. This heinous crime offense drew huge condemnation. Consequently, both, the Houses of Parliament argued about the incident. After the publication of the “Thomson Reuters Foundation Report’‘, the lawmakers are still silent concerning women’s safety. The record says that India has the most dangerous place on earth for women. The Central government struck down the report completely.

Instead of putting efforts into catching the criminals, it will be better if we make strict punishment for an offense against women and children. Disha Act, 2019 is more focusing on the field of detection and prosecution. Delays in investigation and trials can be avoided by amending provisions in substantive laws like Indian Penal Code, 1860, Code of Criminal Procedure, 1973. Subsequently, the legal framework of the judicial system will improve.

Mostly, irrespective of the basic principles of jurisprudence, lawmakers pose laws criminalizing social or moral wrongs, which have a huge possibility of misuse. Lord Macaulay, while making the Indian Penal Code stated that providing death sentence to rapists if the punishment for rape and murder was the same then rapist will also kill their victims. The mens rea required for committing an offense, Indian laws are not paying attention to new enactments.

Constitutional Validity of the Disha Act

The summary of the huge public demand instantly after the incident was to complete the investigation forthwith and execute the criminals even at the expense of bypassing a few fundamental tenets of the rule of law. Criminal law, IPC, CrPC is part-III of the concurrent list of the seventh schedule of the Constitution of India and therefore the State Legislature has the power to amend the IPC and the CrPC also. The State government ordered to include Section-354E, 354F, and 354G in the IPC along with strict punishment for offenses against women and children.

Right To Speedy Trial V Right To Fair Trial

The right to a speedy trial in criminal cases is an absolute right under Article 21 of the Indian Constitution as held by the Supreme Court of India in the case of Kartar Singh v State of Punjab. However, the right to a fair trial is also intrinsic in Article 21 and in case of Zahira Habibullah Sheikh and Anr v State of Gujarat Supreme Court held that; trial before an impartial judge, fair prosecution, the atmosphere of judicial calm, and fair trial in which no space for prejudice for or against the accused. 

There should be a balance between the aphorism, “justice delayed is justice denied” and “justice hurried is justice buried” so law enacted even with the noble intention should strike the harmony of two contradictory rights. Law should be lenient but the enforcement must be strict. 

Because of Article 13 of the Indian Constitution, no law should contravene Part-II of the Constitution (fundamental rights). Therefore, if any provision of law goes against the core of the fundamental rights, it should be considered as law.

Response from other States

In response to the Disha Act, NCP, State Home Minister of Maharashtra, Mr. Anil Deshmukh said that the government should try to bring such a bill. He said. “We are working on whether to replicate them in Maharashtra as well‘ Delhi and Odisha have also shown their positive interest towards the Disha Act, 2019. CM Jagan Mohan Reddy also praised Telangana CM K.Chandrasekhar.

Critical Analysis

The overburdened judicial system is not able to hold the subsequent burden by the enactment of the new law. The sheer volume of trial cases grabs away all the time of judiciary for example 60 lakhs cheque bounce cases are pending, more than 3 crores cases are pending at the Supreme Court. Jails have not the capacity to accommodate any further prisoners.

On the other hand, due to some fake encounters, the power of the judiciary is under doubt. Committing fake encounters equivocally signifies machinery to the judiciary system. The police take advantage of the power given to them. In such circumstances, criminal causes have multiplied. As a consequence of this, the police also get overburdened, because of the Disha Act, 2019, both the judiciary and the police force will be overworked.

Ground report after implementation of the Act

Andhra Pradesh CM YS Jagan Mohan Reddy orders special courts in every district with the recruitment of 13 new Public Prosecutors, a DSP, SI, and four support staff for all 18 women police stations, and two new forensic labs for the necessary infrastructure. He has sanctioned 2 crores to enable new law, he also said that near state police headquarters, forensic laboratories will be built and new ones at Visakhapatnam and Tirupati for gaining better outcomes.

Conclusion

The new law Disha Act, 2019 is an appreciable enactment for today’s growing crimes like rape, gang rape, and other offenses against women and children. All states should enforce such laws so that India can be a rape-free society.

References 


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