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An Analysis of Criminal Law (Amendment) Act, 2018

This paper specifically focuses on the change that has been incorporated in the Criminal Law of India through the Criminal Law (Amendment), Act. The paper specifically discusses about what are the changes in the law and why these changes have brought about. A tabular representation of the data is shown in every stage to make the amendments clearer and more vigilant. Even a comparative study approach is taken for better understanding of the law.

With the passage of time and the change in time a law of a country has to develop. As for any civil society the society demands for more strict and stringent laws in difficult time, but a question always remain when it comes to drafting a particular law that how much stricter and more stringent a law has to be made.

An approach to the laws of sexual offences in India has to be comprehensive and holistic. Macaulay, the architect of the Indian Penal Code had specifically mentioned that a good code should have three qualities – Precision (free from ambiguity), comprehensibility (easily understandable to the ordinary people) and a product of legislature law making (least judicial intervention).[1] However the judicial pronouncements in recent times runs anti thesis to the policy of Lord Macaulay.

The new incidents of rape in India namely in Kathua[2] and Unnao[3] had re-ignited the issue of making rape laws in India more stringent as the wounds of this country weren’t still gone from the Nirbhaya case. The gruesome and one of the darkest incidents in the history of India when a 23-year old physiotherapy student was gang raped in a public bus in Delhi.

After this issue the society came into direct conflict with the system. The society as a whole wanted to end the rape culture in India and didn’t want to tolerate patronizing of rape in India.

The massive public outcry and public agitation after the Nirbhaya case forced the legislature to come out with radical amendments in criminal law but also forced the legislature to take atrocities against the society as a main stream issue. The public outrage forced the government to consider criminal policy with respect to rape and thereby formulated a committee under Justice J. S. Sharma and in the meanwhile brought in The Criminal Law (Amendment) Ordinance, 2013, which was soon repealed by The Criminal Law (Amendment) Act, 2013.

Even after the stringent laws that were brought in by The Criminal Law (Amendment) Act, 2013 post Nirbhaya case, the society was again taken aback by an incident in Kathua, Jammu and Kashmir. An 8-year-old girl fell prey to the lust of a gang and thereby was a victim to sexual assault and was murdered. This horrific incident again brings back to the knowledge of the society that the rape culture has not only failed to wane but also looms large in our society where such crimes are committed with impunity.

As a consequence, to the extensive reporting and public roar to the issue the parliament was forced to take ‘corrective measures’. The cabinet thus approved of The Criminal Law (Amendment) Ordinance, 2018 which was signed by the President on the 21st of April, 2018. The ordinance enhanced punishment which includes capital punishment to those who are charged for raping minors. To fulfil the constitutional requirement The Criminal Law (Amendment) Bill, 2018 was placed before the parliament to replace the ordinance.

The Bill was passed by Lok Sabha on the 30th of July, 2018 and Rajya Sabha on 6th of August, 2018. Thereafter it received the Presidential assent on 11th of August, 2018 and came into force as the Criminal Law (Amendment) Act, 2018[4].

The amendment which has a retrospective effect has amended four legislation in total, namely, The Indian Penal Code[5], The Code of Criminal Procedure[6], Indian Evidence Act[7] and The Protection of Children from Sexual Offences Act[8].

Amendments To The Indian Penal Code, 1860

The Indian Penal Code, 1860 is one of the most important criminal legislation in India which is an elaborate code which gives us the definitions and punishment to various criminal offences. Prior to the Criminal Law (Amendment) Act, 2018 it was amended by the Criminal Law (Amendment) Act, 2013 which introduces several reforms to the realm of sexual offences in India. The Criminal Law (Amendment) Act, 2018 amends the Indian Penal Code, 1860 in two ways: (i) by amending existing sections (ii) by introducing new sections. Looking at the current amendments the parliament is surely wanting to put a deterring effect to the increasing trends of rape in India.

Enhanced Punishments

When we go through the Indian Penal Code,1860 we can see that rape is being defined under Section 375 of the Indian Penal Code and the punishment for rape is mentioned under Section 376 of the Indian Penal Code. Rape’s simpler punishment is given under Section 376(1) whereas the aggravated forms of rape are punishable under Section 376(2) of the Indian Penal Code, 1860 which lays out 14 circumstances.

Before the Criminal Law (Amendment) Act, 2018 the minimum punishment for rape simpliciter was 7 years whereas the maximum was of life imprisonment, whereas the Criminal Law (Amendment) Act, 2018 changed the minimum punishment to 10 years. This step in itself a very strong step towards the increasing culture of rape in India.

New offences for rape and gang rape of minors

The Criminal Law (Amendment) Act, 2018 institutes some new criminal offences namely Section 376AB, Section 376BA and Section 376DB in the Indian Penal Code, 1860. These provisions mark serious gradation in terms of severity and punishment when it comes to the incident of raping minors. Section 376AB[9] specifically deals with the cases where a minor who is below 12 years of age has been raped. The minimum punishment for an offence under Section 376AB is 20 years which may extend to life imprisonment (which means remainder of a person’s natural life) and the maximum sentence maybe that to death.

Whereas in Section 376DA[10] and 376DB[11] deals with the issue of gang rape of women under 16 years of and under 12 years of age respectively. Section 376DA has introduced a mandatory sentence of life imprisonment in the instance of gang raping a girl under 16 years of age and Section 376DB has introduced a minimum punishment of life imprisonment (which means remainder of persons natural life) and the maximum punishment is of death penalty in the instance of gang raping a girl under 12 years of age.

Compensation for minor rape victims

The Criminal Law (Amendment) Act, 2018 has made some progressive provisions in the domain of compensatory jurisprudence. All the provisions for the rape of minor in the Criminal Law (Amendment) Act, 2018 provide for compulsory compensation to the victims.

The provisions provide that any fine imposed on the convict shall be paid to the victim and it shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Prior to The Criminal Law (Amendment) Act, 2018 no such rehabilitation clause was provided except in cases of gang rape. Similar amendments have been made in the Code of criminal Procedure, 1973, so that the benefit of compensation and rehabilitation goes to the victims of rape who are minor.

SL No Section Amend
1 166A(c) section 376B, section 376C, section 376D, the words, figures and letters section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.”
2 228A(1) section 376A, section 376B, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.
3 376(1) Punishment “7 to life” increased to “10 to life”
4 376(2)(i) Omitted
5 376(3) Inserted, if rape is committed on a girl who is less that 16 yrs of age, then punishment is “20 years to life with fine” and fine which should cover medical and rehabilitation expenses.
6 376AB Inserted, if rape is committed on a girl who is less than 12 years of age, then punishment is “20 years to natural life with fineor death” and fine which should cover medical and rehabilitation expenses.
7 376DA Inserted, if gang rape is committed on a girl who is 16 years of age, then punishment is “natural life and with fine” and fine which should cover medical and rehabilitation expenses.
8 376DB Inserted, if gang rape is committed on a girl who is less than 12 years of age, then punishment if “natural life with fine or death” and fine which should cover medical and rehabilitation expenses.
9 376E section 376D, the words, figures and letters section 376AB or section 376D or section 376DA or section 376DB, shall be substituted.

Amendments To The Code Of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973 is essentially a procedural law which lays down the procedure for administering substantive criminal laws in India. It was enacted in 1973 and came into force on 1 April 1974. Prior to the enactment of The Criminal Law (Amendment) Act, 2018, the Code of Criminal Procedure, 1973 was last amended by the 2013 amendment Act, which included a few procedural amendments with regard to sexual offences.

Time-bound investigation and disposal of appeals

Investigation is an important component in the justice system. But apart from the pre-eminent position of investigation in a criminal trial, speedy investigation is also a significant part of the criminal justice system. Prior to the enactment of The Criminal Law (Amendment) Act, 2018 the Code of Criminal Procedure, 1973 provided a maximum time of 3 months within which the investigation of a particular case has to be done in case of rape of a minor girl, but the Criminal Law (Amendment) Act, 2018 has reduced this period to 2 months thereby promoting a speedy trial of these case of rape of minor girl. Furthermore, the amendment has reduced the investigation time period of all the cases of rape including rape, gang rape, and rape of minors under the age of 12 years and 16 years.

Amendments in bail provision

Section 438 of the Code of Criminal Procedure, 1973 lays down the provision of the anticipatory bail to persons who are under the apprehension of being arrested for a non-bailable offence. These provisions were made more stringent in these kinds of specific situation where an accused is charged for the rape of a girl below 16 years of age. The amendment has made anticipatory bail inapplicable to the offences of rape and gang rape where the prosecutrix is below 16 years of age thus no court shall have the power to grant an application of anticipatory bail to a person who is apprehending arrest in a rape case related to minor.

SL No Section Amend
1 26(a) section 376A, section 376B, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.
2 154 section 376A, section 376B, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.
3 154(a) section 376A, section 376B, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.
4 161(3) section 376A, section 376B, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.
5 164(5A)(a) section 376A, section 376B, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.
6 173(1A) rape of a child may be completed within three months, the words, figures and letters an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code shall be completed within two months shall be substituted;

And thus reducing the time limit of submission of charge sheet from 3 months to 2 months
7 173(2)(i)(h) section 376, 376A, 376B, 376C, 376D, the word, figures and letters sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB shall be substituted.
8 197(1) section 376A, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB shall be substituted.
9 309(1) section 376A, section 376B, section 376C or section 376D of the Indian Penal Code, the inquiry or trial shall, as far as possible,, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA or section 376DB of the Indian Penal Code, the inquiry or trial shall shall be substituted.
10 327 section 376A, section 376B, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.
11 357B under section 326A or section 376D of the Indian Penal Code, the words, figures and letters under section 326A, section 376AB, section 376D, section 376DA and section 376DB of the Indian Penal Code shall be substituted.
12 357C 376A, 376B, 376C, 376D, the figures and letters 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB shall be substituted.
13 374(4) Inserted, (4) When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal.

It says that in these cases the appeal shall be disposed off within 6 months of filling.
14 377(4) Inserted, (4) When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal.
15 438(4) (4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code..
16 439(1)(a) Inserted after, Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
17 439(1)(1A) Inserted, (1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.


Amendments To Indian Evidence Act, 1872

As per Section 53A and Section 146 of the Indian Evidence Act, 1872, while deciding the question of legality or quality of consent, the past sexual experience of or character of the prosecutrix is disregarded. This provision has been extended to the rape and gang rape of minor girls below 12 years of age and below 16 years of age.

However, the amendment has ignored to take into account one serious part of law. Section 114A, Indian Evidence Act, 1872 is a protective provision which creates a presumption, in favour of the prosecutrix, as to the non-consent for sexual intercourse in certain cases of rape.[12] The Indian Evidence Act, 1872 fails to give the benefit under Section 114A to the prosecutrix in the case to gang rape thereby leaving a great loop hole when it comes to cases of gang rape.


SL No Section Amend
1 53A section 376A, section 376B, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.
2 146 section 376A, section 376B, section 376C, section 376D, the words, figures and letters section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB shall be substituted.


Amendments In Protection Of Children From Sexual Offences Act, 2012

No major changes were made in the above-mentioned Protection of Children from Sexual Offences Act, 2012. Only section 42 of the Protection of Children from Sexual Offences Act, 2012 which is the alternative punishment section was amended to incorporate the amendments made in the Indian Penal Code, 1860. This alternative punishment says that if an accused has committed an offense under any section of the Protection of Children from Sexual Offences Act, 2012 or some specific sections under the Indian Penal Code, 1860 then the punishment which is greater in degree shall be awarded.

SL No Section Amend
1 42 376A, 376C, 376D, the figures and letters 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB shall be substituted.

Conclusion
The criminal law is one of the most vital links which defines the relationship between a state and its citizens. With the incoming of The Criminal Law (Amendment) Act, 2018 the penal provisions relating to all kinds of act of rape has been made stringent and thereby trying to curb down the uprising trend of rape in India.

Although the Criminal Law (Amendment) Act, 2018 has been widely acclaimed for making the penal provisions of all kinds of rape in India more stringent, it fails to deliver only in one situation when it comes to Section 114A of the Indian Evidence Act, 1872. Personally, I think that the legislature should take steps to fill up this particular lacuna present in the law and make current stringent provision more water tight for the offenders.

End-Notes:
  1. Stanley Yeo, Barry Wright et. al, Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform 4-5 (Routledge, 2011).
  2. The Kathua rape case refers to the abduction, rape, and murder of an 8-year-old girl, in Rasana village near Kathua (Jammu & Kashmir) in Jan. 2018. The victim belonged to the Bakarwal community. She disappeared for a week before her dead body was discovered by the villagers. Owing political patronage to the accused in the case and possibility of political influence on the trial in Kathua (J & K), the trial of the case was transferred by the SC to Pathankot District & Sessions court (Punjab). See, State of Jammu Kashmir v. Deepak Khajuria @ Deepu (Case registration no. 34/2018).
  3. The Unnao rape case refers to the alleged rape of a 17-year-old girl (minor) on June 4, 2017. The main accused is Kuldeep Singh Sengar, an MLA of Uttar Pradesh, and a member of the ruling BJP. The case was transferred to CBI owing to public pressure. The Allahabad High Court vide its judgment, Re: An Unfortunate Incident in Unnao of Rape and Murder Published in Various Newspaper v. State of U.P. (W.P [Cri.] 1 of 2018, Date of decision: May 21, 2018) stayed the trial at Unnao Sessions Court and transferred the same to a Special CBI Court at Lucknow (POCSO). For details see, C.B.I v. Kuldip Singh Sengar, (Cri. Case No. 1228/2018).
  4. The Criminal Law (Amendment) Act, 2018 (22 of 2018).
  5. Indian Penal Code, 1860 (Act 45 of 1860).
  6. Code of Criminal Procedure, 1973 (Act 2 of 1974).
  7. Indian Evidence Act, 1872 (Act 1 of 1872).
  8. Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012).
  9. Indian Penal Code, 1860, Section 376AB: “Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death…”
  10. Indian Penal Code, 1860, Section 376DA: “Where a woman under 16 years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine…”
  11. Indian Penal Code, 1860, Section 376DB: “Where a woman under 12 years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death…”
  12. Section 114A, Indian Evidence Act, 1872: it has brought about a radical change in the Indian Law relating to rape cases. Formerly, the rule was that corroboration of the victim’s version was not essential for a conviction, but as a matter of prudence, it would have to be established if the mind of the judge, unless circumstances were strong enough to make it safe to convict the accused without such corroboration. S. 114A raises a presumption in favour of the rape victim.

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