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A Critical Analysis Of The 2013, 2018 Amendments To IPC

Violence against women in India is increasing in tandem with the country's technological advancement in the modern world. Violence against women can take many forms and occur anywhere, including the home, a public place, or an office. It is a major issue concerning women that cannot be ignored because it is impeding nearly half of the country's growth. Since ancient times, women have been regarded as objects of pleasure in Indian society. Men have humiliated, exploited, and tortured them since the beginning of social organisation and family life.

An infamous gang rape case of Nirbhaya shook the whole nation and led to widespread rage and protests from all over the country. It prompted the government to reconsider the effectiveness of the current legal safeguards for women's protection. Even after the stringent laws enacted by The Criminal Law (Amendment) Act, 2013, in the aftermath of the Nirbhaya case, society was shocked by an incident in Kathua, Jammu and Kashmir.

An 8-year-old girl succumbed to the lust of a gang, becoming a victim of sexual assault and murder. This horrifying incident reminds the public that the rape culture has not only persisted but also persists strong large in our society, where such crimes are committed with impunity. As a result of the extensive reporting and public outcry, the parliament was forced to take sufficient measures.

The Criminal Law (Amendment) Ordinance, 2018, was thus approved by the cabinet and signed by the President on April 21, 2018. The ordinance increased punishment, including the death penalty, for those charged with raping minors. The Criminal Law (Amendment) Bill, 2018, was introduced in parliament to replace the ordinance in order to meet the constitutional requirement.

Criminal law is one of the most important ties that define a state's relationship with its citizens. With the passage of The Criminal Law (Amendment) Acts of 2015 and 2018, the penal provisions relating to all types of rape have been made more stringent, attempting to stem the rising trend of rape in India.

Criminal Law (Amendment) Act, 2013
Background Of The Act

Nirbhaya Case [Mukesh and Anr v. State (NCT of Delhi) and Ors]
This is well-known as the Nirbhaya case. On December 16, 2012, a 23-year-old medical student was gang raped by six men on a bus. On her way home, she had boarded with a male friend. A driver and a juvenile were among the six men. The men began abusing them and making obscene remarks before assaulting her male friend and dragging her to the back of the bus to commit rape.

She was beaten and raped, and the perpetrators inserted a rod into her body before throwing both of them naked in the middle of the highway. Nirbhaya, the woman, died on December 29, 2012, in a Singapore hospital from her injuries, which included multiple organ failure, internal bleeding, and cardiac arrest. According to the Hon'ble Justice Dipak Misra, this story is "from a different world where humanity has been treated irreverently." In its decision, the Court convicted four of the six accused of the aforementioned charges.

The convicts were given the death penalty. The proceedings against the accused, Ram Singh, were halted because he committed suicide during the trial. The juvenile involved in the case was tried separately under the Juvenile Justice Board, was convicted, and sentenced to three years in a reformation home. The Supreme Court upheld the death sentence imposed by the High Court because the aggravating factors outweighed the mitigating factors in the case.

Furthermore, the court dismissed all of the accused's appeals. Considering the gravity and heinousness of the crime, the Court classified this case as "the rarest of the rarest," a doctrine established in the case of Bacchan v. State of Punjab.

Justice Verma Committee
Following this incident, the government established the Committee headed by Justice J.S. Verma to investigate the necessary changes in criminal law to make laws protecting women more stringent and to add various aspects that were required given the rise in the number of cases of crimes against women.

It was formed on December 23, 2012, and committed to submitting the Committee Report within 30 days, given the importance of the Nirbhaya case. The primary goal of this Committee was to recommend changes to criminal law in order to expedite trials in cases involving crimes against women.
  • It advocated for life imprisonment for rape and opposed the death penalty as a rape punishment because it lacks a deterrent effect on society.
  • It is suggested that the criminal law be expanded to include sexual assault on men as well as homosexual, transgender, or transsexual rape.
  • The Committee suggested that non-penetrative forms of sexual contact be considered sexual assault. Sexual assault should be defined broadly to include all forms of non-consensual non-penetrative sexual touching. The sexual nature of an act must be determined by the circumstances. Sexual gratification as a motivation for the act should not be required to prove the crime. The offence should be punishable by five years in prison, a fine, or both.
  • It proposed separating the offence of "acid attack" from the offence of "grievous hurt," which was previously punishable under the offence of "grievous hurt."
  • The police are required to register rape complaints and report any rape cases that come to their attention. If they fail to perform their duties, they must be punished in accordance with the Act's provisions.
  • It also suggests some changes to the medical examination of the rape victim, such as the elimination of the two-finger test.

Changes made after the Criminal Law (Amendment) Act, 2013

Indian Penal Code, 1860
The major provisions added in the Indian Penal Code after the Criminal Amendment 2013 are:
  • Acid attack
    As a result of the case of Laxmi v. Union of India, in which a sixteen-year-old girl was attacked with acid, these provisions were added to the Code. Following this incident, it became clear that stricter provisions were required to combat the aforementioned offence. Section 100 added an act of throwing acid or an attempt to throw acid to the general exception of the "right to private defence." It means that in the event of an acid attack, a person can now exercise their right to private defence. Section 326A and Section 326B were added as new provisions. Section 326A makes the offence of "acid attack" punishable by a minimum of ten years in prison, up to life imprisonment, and a fine, whereas Section 326B makes the attempt to throw acid an offence punishable by a minimum of five years in prison, up to seven years in prison, and a fine.
  • Rape
    This Criminal Law (Amendment) Act, 2013, broadens the definition of "rape" in order to provide harsher punishments for more heinous acts. It also expanded the provision to include non-penetrative acts such as oral sex and inserting any object or other part of the body into a woman's body as an offence under Section 375's definition of "rape." Although the punishment for the offence of "rape" was not increased under Section 376, it was later increased to a minimum of 10 years imprisonment, with the possibility of life imprisonment, following the Criminal Law Amendment Act 2018. However, the 2013 Amendment has added provisions and increased punishment for more heinous forms of rape, such:
    1. Section 376 A:
      Punishment for killing or putting someone in a vegetative state. This clause punishes a man who commits an act against a woman that causes her to be injured, become vegetative, or die. The sentence under Section 376 A must be at least 20 years, but it can be increased to life imprisonment. It is a cognizable, non-bailable offence that can be tried in the Court of Session.
    2. Section 376 B:
      This section discusses the consequences of a separated husband having sexual relations with his wife. Marriage is defined as a relationship in which both the husband and wife have the ability to exercise their marital rights. When a woman lives apart from her husband under a judicial separation order, sexual intercourse by the husband without her consent is punishable under this Section. Sexual intercourse means the same thing in these cases as it does in Section 375 clauses (a), (c) and (d).
    3. Section 376 C:
      This Section makes sexual intercourse with a person in power a crime. If a person in authority or under the influence of his power seduces or takes advantage of a woman, that person is liable under this Section. Sexual intercourse in these situations will not be considered rape, but will result in a 5-year sentence with the possibility of a 10-year sentence and a fine.
    4. Section 376 D:
      This Section makes gang rape crimes punishable. Gang rape occurs when a woman is raped by a group of people who are all out to rape her. Offenders face a minimum sentence of 20 years in prison, with the possibility of life imprisonment.
    5. Section 376 E:
      This Section defines the punishment for repeat offenders. If a person has previously been convicted of an offence under Section 376, 376 A, or 376 D and commits the same offence again, he or she faces life imprisonment.

Sexual Offences
In light of the country's rising number of sexual harassment cases, this Amendment added four new sexual offences. These are as follows:
  • Section 354 A
    This Section includes acts such as a man making physical contact with a woman, demanding sexual favours, and showing pornography to a woman. For these offences, a man can face rigorous imprisonment for up to three years. It also includes the offence of making sexually charged remarks to a woman, which carries a one-year prison sentence.
  • Section 354 B
    This Section makes assaulting or threatening a woman with criminal force to disrobe her or forcing her to be naked punishable by a minimum of three years in prison, which can be increased to seven years, and a fine.
  • Section 354 C
    The definition of "voyeurism" is "the act of gaining pleasure from watching others naked or engaged in sexual activity." Any such acts committed by a man are punishable by a minimum of one year in prison, which may be extended to three years, and a fine under this Section. It can also refer to the act of watching or photographing a woman while she is engaged in private activity. If a man is convicted of the same offence more than once, he faces a minimum of three years in prison, which can be increased to seven years.
  • Section 354 D
    This Section includes following or attempting to contact a woman who has already demonstrated disinterest in a man, as well as monitoring her use of the internet, email, or other electronic communication means. This conduct by any man is punishable by imprisonment for up to three years, and for repeat offenders, the punishment is imprisonment for up to five years and a fine.

Criminal Procedure Code, 1973

The Criminal Law Amendment Act of 2013 amended the Code of Criminal Procedure, 1973 to provide a more welcoming environment for women during investigations, trials, and examinations, as well as to adapt new provisions inserted in the Indian Penal Code in the First Schedule of the Code of Criminal Procedure. The following are some significant changes made to the Code:

Sections 154, 161, and 164: Sections 154 and 161 were amended to include a provision requiring the recording of the victim's statements to be done by only a female police officer. Furthermore, Section 154 states that if the victim is mentally or physically disabled, the recording of statements should be done at their residence or any other convenient location in the presence of an interpreter or special educator, and that the recording should be videotaped.

Section 273: It was amended to include a provision requiring the court to take appropriate measures to ensure that women under the age of 16 and victims of rape or sexual offences are not confronted by the accused while ensuring the accused's right to cross-examination.

Section 357 C: It added a provision requiring hospitals, whether public or private, to provide free treatment to victims of sexual offences and to immediately notify police authorities about the case.

Indian Evidence Act, 1872
Following the Amendment, the significant provisions were added and substituted in the Act:
Section 53A was added to the Act, which states that during prosecution for sexual offences, the character of the person or the victim's previous sexual experiences are irrelevant as evidence for the victim's consent or the quality of the victim's consent.

Section 114A was included, which states that it is sufficient for the victim of a sexual offence to state before the court in her testimony that she did not consent to the sexual intercourse in order to presume the absence of consent in the case.

Section 146 of the Act was amended to include a provision stating that no questions can be asked of victims of sexual offences during cross-examination that are immoral in nature or are related to the victim's previous sexual experiences in order to prove or test the quality of the victim's consent.

The Criminal Law (Amendment) Act, 2018
Background of the Act
The Criminal Law Amendment Act, 2018, is also a result of such heinous events that shook the nation's soul and inner voice. Because of various youth ambush scenes, there was a growing interest in making rape laws more stringent. The well-known Kathua rape and Unnao rape cases sparked this interest, and it made a difference in 2018. Following the modification or correction, Section 376 provides three orders of discipline for an attack, in addition to assaults on women by police officers, community labourers, military adherents, and so on.

Changes made after the Criminal Law (Amendment) Act, 2018,
Indian Penal Code, 1860
Section 376 AB The sentence for rape of a woman is at least ten years of rigorous detention, which may be extended indefinitely. The sentence has been increased from seven to ten years in prison.

Section 376 DA The change now includes a sentence for rape on a young lady under the age of sixteen. In such cases, imprisonment must be for a minimum of twenty years, with the possibility of life imprisonment.

Section 376 DB - The amendment also includes punishment for rape on a woman under the age of twelve. In such cases, the imprisonment is described as a minimum of twenty years of incarceration, with the possibility of being detained indefinitely. In such cases, the accused faced the death penalty. Given the gravity of the offence, the introduction of the death penalty for rape.

The update also includes Sections 376DA and 376DB, which oversee or manage sentences for assault on a young lady under the age of sixteen and twelve years, respectively. In such cases, the punishment must be life imprisonment. In any case, the death penalty can be granted for rape on a young lady under the age of twelve.

The Code of Criminal Procedure, 1973
Section 173: Subsection (1A) of this section was amended to provide that rape of a child may be completed within 3 months; this sub-section was replaced with "an offence under section 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E of the Indian penal code shall be completed within 2 months."

Section 374: When an appeal is filed against a sentence passed under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB or Section 376E of the Indian penal code, the appeal shall be disposed of within 6 months from the date of filing of such appeal, according to Section 374 of the Cr.PC.

Section 377: After sub-section (2) of Section 377 of the Code of Criminal Procedure, a new sub-section (3) was added, which reads as follows: "When an appeal has been filed against a sentence passed under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB or Section 376E of the Indian penal code, the appeal shall be disposed off within 6 months from the date of filing the appeal."

The Supreme Court ruled in Priya Patel vs. State of Madhya Pradesh that it is "unimaginable for a woman to rape another woman." This is a narrow decision provided by the Supreme Court that has the potential to dispel the myth that "only a man can rape a woman," but the Supreme Court took an opposing narrower view. The Justice Verma Committee has proposed holding women accountable in cases of gang rape. It was suggested that each perpetrator, regardless of gender, face punishment for gang rape.

Section 438: After sub-section (3) of Section 438 of the Code of Criminal Procedure, a new sub-section (4) is inserted, which states that nothing in this section applies to any case involving the arrest of a person on suspicion of having committed an offence under sub-section (3) of Section 376, 376AB, 376DA, or 376DB of the Indian penal code.

Section 439: After sub-section (a), (1), another provision was added to Section 439 of the CrPC, which states that "the high court and the session court shall, before granting bail to a person accused of an offence triable under sub-section (3) of Sections 376, 376AB, 376DA, and 376DB, give notice of the applicant for bail to the public prosecutor within a period of 15 days from the date of receipt of such notice."

The Indian Evidence Act, 1872
The Act amended 2 sections of Indian Evidence Act, 1872
Section 53 A: This section replaces Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB and deals with evidence of character or previous sexual experience that is not relevant in certain cases. Section 146: This section addresses legal cross-examination questions when a witness is being cross-examined, he may be asked any question which tends:
  • The veracity is frequently tested.
  • To figure out who he is and what is his position
  • To protect his reputation, injuring his character, even if the answer tends to directly or indirectly convict him, may subject him to a penalty or forfeiture.
The Protection of Children from Sexual Offences Act, 2012
Section 42 of the POCSO Act of 2012 has been amended by the Criminal Amendment Act of 2018. This section addresses Alternative Punishment, and Sections 376A, 376C, and 376D were replaced with Sections 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB of the Indian penal code.

The Criminal Law (Amendment) Acts of 2018 and 2013 were responsible for any significant changes in the country's criminal law. Such changes aim to make anti-rape laws more severe in order to reduce crime. If the investigation and appeal timelines are followed correctly, the crime rate will be reduced.

To produce overall successful results, such reforms must be supplemented by other improvements to the criminal justice system. Criminal law is one of the most important links that describe the relationship between a state and its people. As a result, it is advantageous if this relationship is specifically and explicitly established in the penal laws.

Criminal law, which is regarded as the most effective state mechanism for limiting people's constitutional rights to life and liberty, must be free of inconsistencies and ambiguities. Because of apparent inconsistencies in criminal law, ordinary citizens and even legal experts find it difficult to interpret the reach of a specific provision. On the one hand, due to the slow pace of legislative change, the IPC and its amendments are subject to ongoing judicial interpretation of border-line legislation.

On the other hand, the legislature and the executive continue to sleep on proposals for significant law reform made by expert bodies and committees. As a result, the IPC and its contentious anti-rape reforms remain riddled with ambiguities and inconsistencies.

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