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Major Criminal Law Amendments relating to rape laws in India

Criminal law in India governs and prohibits the offences/crimes and punishes those who commit crime(s) in accordance with the laws. All the offence/crimes committed in India are all deemed as offences/ crimes against the State. In India, generally criminal law comprises of three major statutes ; Criminal Procedure code, Indian Evidence Act and the Indian Penal Code. There are other criminal laws in India like the Dowry Prevention Act, The Narcotic Drugs and Psychopathic Substances Act, etc.

Why were the amendments made to criminal law?

The amendments were brought about to Criminal law due to massive change in the structure of committing crimes. In this modern era, the crimes have increased drastically and the ways of commission of the crimes have also undergone changes. The provisions that were drafted about a century ago though stands good in most cases, there are many offences/crimes which were never even thought or heard of before(eg: Acid attack). With the advent of modern technologies the criminals have started to use these in commission of crimes (eg: stalking and voyeurism). The amendments have brought about changes to the then existing laws and have also inculcated new types and forms of offences/crimes and also have given them new dimensions and definitions.

The major amendments to Criminal law in India - Aftermath of four rapes that shook India

1. The Criminal law amendment of 1983:

The criminal law amendment, 1983 was the consequence of a rape case, famously known as Mathura Rape Case[i] in 1972. This was a peculiar case of custodial rape inside Desaiganj police station in Maharashtra. On the night of 26th March 1972, a young tribal girl, aged between 14-16 years who, worked as domestic help went to Desaiganj police station along with her brother and other relatives to lodge a complaint of her abduction. After receiving the complaint, the policemen sent the girl’s brother and other relatives out leaving behind the girl inside the station. The girl was allegedly raped by two policemen inside the police station.

It was held by the sessions court that, the policemen were not guilty of the offence of rape as the girl did not raise any alarm and was habituated to sexual intercourse. On an appeal to the Nagpur Bench of High Court of Bombay, the sessions’ court judgement was set aside and the accused policemen were imprisoned. The accused policemen appealed to the Supreme Court of India in 1979 where the policemen were acquitted as there was no suggestive evidence of rape.

After few days of pronouncing the judgement in Mathura rape case, there was a huge public outcry and widespread protests by women organisations throughout India and some eminent scholars even wrote letter to the Supreme Court for excluding ‘consent’ in Mathura rape case. These ultimately led to the Criminal Law Amendment, 1983.

The amendments that were made are:

Indian Penal Code, 1860

Sec.228A - Disclosure of identity of victim of certain offences etc., Indian Penal Code, 1860 [Prescribes punishment for any person who prints or publishes the name or any other information related to the identity of a rape victim; unless such disclosure is with the consent of the victim or, in case the victim is dead/minor/unsound mind, by the next of kin of the victim, or by or under an order of the Court]
Sec.375 - Rape, Indian Penal Code, 1860
Sec.376 - Punishment for Rape, Indian Penal Code, 1860
Sec.376A - Intercourse by a man with his wife during separation, Indian Penal Code, 1860
Sec.376B - Intercourse with public servant with woman in his custody, Indian Penal Code, 1860
Sec.376C - Intercourse by superintendent of jail, remand home etc., Indian Penal Code, 1860
Sec.376D - Gang Rape, Indian Penal Code, 1860
Sec.498A - Husband or relative of husband of a woman subjecting her to cruelty, Indian Penal Code, 1860 [Whoever bring the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and also be liable to fine.]

Code of Criminal Procedure, 1973

Sec.327(2) & 327(3) - Court to be open, Code of Criminal Procedure, 1973 [Sec.327(2) In case of rape trial, in camera proceedings to be conducted; S.327(3) it shall not be lawful for any person to print or publish any matter regarding proceeding]

Sec.174(3) - Police to inquire and report on suicide, etc., Code of Criminal Procedure, 1973 [When the case relates to a woman who dies within 7 years of her marriage, the police officer shall send the body to be examined to the nearest Civil Surgeon or other qualified medical man appointed by the Government]

Sec.198A - Prosecution of offence under 498A of the Indian Penal Code, Code of Criminal Procedure, 1973

Indian Evidence Act, 1872

Sec.113A - Presumption as to abetment of suicide by a married woman, Indian Evidence Act, 1872

Sec.114A - Presumption as to absence of consent, Indian Evidence Act, 1872 [In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub- section (2) of section 376 of the Indian Penal Code(custodial rape), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent]

Criminal law amendment of 2013:

The criminal law amendment, 2013 was the consequence of the Nirbhaya rape case[ii] in 2012. This rape shook the whole world, when 23 year old physiotherapy student was travelling with her friend in a private bus in southern Delhi. The girl was gang raped, beaten and tortured. She died few days later at Singapore, where she was under treatment.
After the incident came to light there were numerous protests condemning the then laws and seeking for strong and stringent laws, hence the Criminal Law Amendment, 2013 came into force.

The amendments that were made are:

Indian Penal Code, 1860

Sec.166A - Public Servant disobeying direction under law, Indian Penal Code, 1860
Sec.166B - Punishment for non-treatment of victim, Indian Penal Code, 1860
Sec.354 - Assault or Criminal Force to Woman with intent to outrage her modesty, Indian Penal Code, 1860
Sec.354A - Sexual Harassment and Punishment for Sexual Harassment, Indian Penal Code, 1860
Sec.354B - Assault or use of criminal force to women with intent to disrobe her, Indian Penal Code, 1860
Sec.354C - Voyeurism, Indian Penal Code, 1860
Sec.354D – Stalking, Indian Penal Code, 1860
Sec.375 - Rape, Indian Penal Code, 1860
Sec.376 - Punishment for Rape, Indian Penal Code, 1860
Sec.376A - Punishment for causing death or persistent vegetative state due to rape, Indian Penal Code, 1860
Sec.376B - Sexual Intercourse by husband upon his wife during separation, Indian Penal Code, 1860
Sec.376C - Sexual Intercourse by a Person in Authority, Indian Penal Code, 1860
Sec.376D - Gang rape, Indian Penal Code, 1860
Sec.376E - Punishment for repeat offenders, Indian Penal Code, 1860
Sec.509 - Word, Gesture or Act intended to insult the modesty of a woman, Indian Penal Code, 1860

Code of Criminal Procedure, 1973

Sec.154(1) - Information in cognizable cases, Code of Criminal Procedure, 1973 [In case of sexual offences and acid attack, the statement will be recorded by a woman police officer or a woman officer]

Sec.161 - Examination of Witnesses by Police, Code of Criminal Procedure, 1973 [The statement may be audio-video recorded; statement of a victim for cases of sexual assault and rape will be recorded by a woman police officer or a woman officer]

Sec.164(5A) - Recording of confessions and statements, Code of Criminal Procedure, 1973 [Judicial Magistrate shall record the statement of the victim of an offence under Sec. 354, 354A, Sec. 354B, Sec. 354C, Sec. 354D, Sec. 376, Sec. 376A, Sec. 376B, Sec. 376C, Sec. 376D, Sec. 376E of the Indian Penal Code, 1960, in the manner prescribed under Sec. 164(5) of the Code of Criminal Procedure, 1973 as soon as the commission of such offence is reported]

Sec.197 - Prosecution of Judges and Public Servants, Code of Criminal Procedure, 1973 [ no sanction is required in case of public servant committing a sexual offence]

Sec.198B - Cognizance of Offence, Code of Criminal Procedure, 1973 [Marital rape cases under Sec. 376B can only be filed by the wife]

Sec.273 - Evidence to be taken in presence of accused, [Where the evidence of a person below 18 years who has been subjected to sexual assault or sexual offence is being recorded, the court will ensure that the person will not be confronted by the accused.]

Sec.309(1) - Power to postpone or adjourn proceedings ,Code of Criminal Procedure, 1973 [The trial in rape cases must be conducted daily and shall as far as possible be completed within 2 months]

Sec.357B - Compensation to be in addition to fine paid under Sec. 326A or Sec. 376D of Indian Penal Code, Criminal Procedure Code, 1973 [Medical practitioner has to mandatorily inform police]

Sec.357C - Treatment of victims, Code of Criminal Procedure, 1973 [Immediate first-aid or medical treatment will be provided free of cost by all hospitals to the victims of any offence covered under Sec. 326, Sec. 376, Sec. 376A, Sec. 376B, Sec. 376D, Sec. 376E of the Indian Penal Code, 1860; medical professionals are required to immediately report the crime to the police which is not in the interest of the survivor who may not want to report the crime]

Indian Evidence Act, 1872

Sec.53A - Evidence of character of previous sexual experience not relevant in certain, Indian Evidence Act, 1872 [ In a prosecution of sexual offences, where the question of consent is in issue, evidence of the character of the victim or of such person's previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent]

Sec.114A - Presumption as to absence of consent in certain prosecution for rape [Absence of consent shall be presumed in cases of aggravated rape given under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m), clause (n) of sub-section (2) of Sec. 376 of the Indian Penal Code, 1860]

Sec.146 - Questions lawful in cross-examination [In the prosecution for commission of offences or attempt to commit offences under Sec.376 to 376E, where the consent of the victim is the issue, neither evidence nor questions in cross examination can be put to the victim, regarding her immoral character or her previous sexual experience.]

3. Criminal Law Amendment, 2018:
The Criminal law amendment 2018 was the result of two unfortunate rape cases, one in 2017 at Unnao, Uttar Pradesh and one in 2018 at Kathuna, Jammu and Kashmir.

Unnao Rape case[iii] is an incident of gang rape of a 17 year old girl in June 2017 at Unnao, U.P. The main accused in this case was a politician who is now convicted for the rape and is sentenced to life imprisonment. In 2018, this incident caught the attention of media when the victim tried to immolate herself in front of the accused politician’s residence.

Kathuna Rape case[iv] is the tragic rape and murder of 8 year old girl at Kathuna in the then state of Jammu and Kashmir in 2018. It is believed that the girl was abducted and kept inside a shrine and was repeatedly raped and murdered. This incident came to light when the trial began.

Both the incidents drew the attention of media and public which protested for amendments in criminal law for rapes. These two incidents led to Criminal law amendment, 2018.

The amendments that were made are:

Indian Penal Code, 1860

Sec.376 - (a) in sub-section (1), for the words shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine, the words shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine shall be substituted:
(b) in sub-section (2), clause (i) shall be omitted;
(c) after sub-section (2), the following sub-section shall be inserted, namely:

(3) Whoever, commits rape on a woman under sixteen 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 shall also be liable to fine

Sec.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

Sec.376DA - Where a woman under sixteen 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
Sec.376DB - Where a woman under twelve 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

Code of Criminal Procedure, 1973

Sec.374 - (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.

Sec.377 - (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.

Sec.438 - (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.

Sec.439(a)(1) - 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.; (b) after sub-section (1), - (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.

Indian Evidence Act, 1872

Sec.53A and Sec.146 have been amended to make the provisions compatible with the amendments of other laws.

End-Notes:

  1. Tuka Ram and Anr v. State of Maharashtra [1979 AIR 185, 1979 SCR (1) 810]
  2. Mukesh & Anr vs State For Nct Of Delhi & Ors
  3. Kuldeep Singh Sengar vs State Of U.P. & Anr
  4. Mohd. Akhtar vs The State Of Jammu And Kashmir

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