In the year that has passed, the country has observed several instances, that
happened to cause massive uproar in the society, primarily because of the
unspeakable nature of those acts. The Kathua Case and the Unnao Case helped the
society realize of the grievous nature that the offence of rape was, and the
threat it posed. What followed suit was a roaring demand for a stringent set of
laws, and the Government gave that to the agitated public in the form of the
Criminal Laws (Amendment) Act, 2018. What seemed at first as a stringent set of
laws, amending the provisions governing offence of rape, was welcomed with
However, the closer perusal of the changes that were implemented would
reveal the gaping flaws that were accompanied by these changes, which was
nothing more than a mere hasty effort of the government to pacify the agitated
public. This article is an effort to analyse the changes that the Criminal Laws
(Amendment) Act, 2018 has brought to the criminal justice system prevalent in
Although the Amending Act of 2018 has brought changes in several
legislations, this article shall assess the changes implemented to the Indian
Penal Code and the Code of Criminal Procedure, which happen to be the basis of
the criminal justice system in the country. The Article has also attempted to
briefly analyse the lacunae that accompany these changes, and how the ensuing
implication will hinder the criminal justice system, whether imminently or in
the long run. The paper concludes with a summary of the gaping flaws in the
There has been an unnatural surge in the heinous incidents within the country,
and it is only obvious that the society would demand stringent laws to be in
force, of the nature that would help facilitate the curbing of such incidents.
The nation has been in a state of uproar, where the Indian society observed a
soaring public resentment over the most heinous incidents that took place in the
Of such an unspeakable nature were the Kathua and the Unnao rape
cases that took place this year, and it was only natural for the society to
demand more stringent laws for offenders. In the history of incidents of rape in
India, more often than not, the legal response in the form of a new amendment
being introduced is often of a hasty nature, and does not always take into
considerations all the factors before being promulgated.
This hasty measure,
which may placate the public and help subside the soaring resentment for a
little while, but often leaves behind loopholes that happen to be exploited in
the later stages of the implementation of the laws.
The Kathua and the Unnao cases
of rape were a reminder of the heinous incident that occurred in the year 2012,
and was the founding reason for the radical amendments that were introduced to
the Indian Penal Code for matters relating to the cases of rape.
Incident was the reason why there came about a certain awakening for the
Government and the Society alike, to deal with the matters concerning rapes
happening in the society with a grain of severity, and also give it the due
recognition as one of the main societal issues faced by the women in the
The Kathua case was none different, and was horrifying in an equal measure. The
abduction, rape and then followed by murder, of the 8-year-old girl, Asifa Bano,
near Kathua, a small village in the state of Jammu and Kashmir, sent ripples of
horror and hatred down the citizens of the country,as well as the globe.
incident was horrifying in itself, and more so was the reason why it was
committed, which was to drive out the community to which the victim belonged,
out of the area. The event attracted a plethora of contempt from the people
around the world, and the resultant uproar forced the government of the country
to take immediate remedial measures, and thus came the Criminal Law (Amendment)
The ordinance was later assented to by the President, and it
came into force on April 21, 2018. However, there is still deliberation ongoing
from the time when the ordinance was implemented, as to whether the Government
had carried put thorough research into crafting the provisions of the Ordinance,
before having hastily promulgated the same.
However, after the Lok Sabha and the Rajya Sabha passed the Bill as well, on
July 30 and August 6, 2018 respectively, the Bill further received the
Presidential Assent on August 11, 2018, and was later implemented as the
Criminal Law (Amendment) Act, 2018.
In essence, this Amending Act, which
replaced the ordinance in force earlier, and did so with a retrospective effect,
happened to bring changes to four legislations in entirety, which are – the
Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (Cr.P.C.),
the Indian Evidence Act, 1872 (IEA) and the Protection of Children from
Sexual Offences, 2012 (POCSO).
In this Article, we shall explore the changes that have been made to the IPC and
the Cr.P.C. by the Amending Act of 2018, since these two laws are two of the
most prominent pieces of criminal legislations governing the criminal offences
in the country. It is noticeable that the changes that have been implemented,
have been done in a very short time interval, which is uncharacteristic of the
laws that are implemented in natural course.
However, it so appears that the aim
of the government in the implementation of these laws was to pacify the public
that stood outraged at the events that had unfolded in recent. The flaws of
these changes so implemented have been mentioned alongside with the description
of these changes, and also have been discussed in the later stages of the
Changes Made to The Indian Penal Code, 1860
Before the Criminal Law (Amendment) Act, 2018 (hereinafter referred to as the ‘CLAA’),
the IPC had been amended by means of the Criminal Law (Amendment) Act, 2013.
However, the CLAA further amends the IPC in a different way, since while at one
hand it amends the existing provisions of the IPC, at the same time, the CLAA
also has added some separate provisions to the existing act, thereby adding new
offences to the criminal laws existing as they are. However, whether the sought
effect of these changes, which is to induce a deterrent effect in the society to
curb sexual offences against minors, is being achieved or not, is still a
questionable aspect of these rushed changes.
The most prominent change that the CLAA has introduced to the IPC is the
enhancement of the punishment that had been previously provided for in the Code.
This much is evident from a brief overview that the CLAA has introduced, and is
another doubtful aspect of the efficacy of the changes that have been
introduced. On the contrary, the nature of this change so brought about does not
take into account the nature of the sexual violence in the country, nor does it
include in it the founding principles of the criminal legislations in our
The most prominent change brought by the CLAA is to the provisions punishing the
offences of rapes in the country i.e. the Sections 375 and 376, IPC. If one
reads these provisions of the Code with a careful eye, it is evident that the
provisions distinguish between two forms of the offence – rape simpliciter,
and the other aggravated forms of rape.
The prior is the normal offence, and
tends to attract punishment not so sever, but, on the other hand, the second
form of rape, which is committed in an aggravated form, has considerably higher
punishment. The Section 376 lays down 14 situations, within which if the act
happens to fall, it will be considered as an aggravated form of rape, due to the
presence of the essential of aggravation.
Prior to the CLAA, the maximum punishment that was awarded for rape under
Section 376(1) i.e. the normal form of the offence, was imprisonment between 7
years and ranging all the way to life imprisonment.
However, the CLAA has
amended this, and as of after the changes, the minimum punishment for the
offence u/S. 376(1) has been increased to a period of 10 years. In essence,
this means that now, the punishment under both sub-sections i.e. Section 376(1)
and 376(2), has been levelled and made the same. While it may appear a
consolidates step against the offence of rape, it has some considerable effects
that are worrisome, such as the blurring of the distinction the previously
existed between the simple form of rape, and the aggravated form, for starters.
In addition, another change that has been introduced to the punishment for
offences of rape, was to the provision that concerned the offence being done
against the girl under 16 years. However, this particular clause has now
been omitted, and instead, the sub-Section (3) was introduced by the CLAA. This
change now introduced provides for minimum punishment for a period of 20 years,
and this may stretch up to life imprisonment for the offender, however, this is
a questionable aspect of the nature of this punishment, especially from the
perspective of the constitutional validity of the nature of this punishment.
punishment for a period of 20 years under the Section 376(3) is questionable,
and hard to justify. The current society is now unknown to sexual relationships
between adolescents, and awarding such a harsh judgment in such a situation
would be unreasonable, at least. In a situation where the girl under the age of
16 years of age enters into a sexual relation with a man of 18 years of age,
which would be a case of statutory rape, since the consent would become
irrelevant, since the law believes a woman under 16 years of age to be unable to
think in a rational manner.
Thus, a situation identical to this would invoke
the application of Section 376(3) of the Code, but a sentence of 20 years of
minimum imprisonment, in addition to the absence to judicial discretion for the
same, happens to be too unreasonable. This furthers the fact that the
legislators did not think through in entirety the proposed changes to the
existing laws, since awarding a man of 18 years the punishment for life
imprisonment, would imply that the man would not be released for the remainder
of life, something completely irrational. Especially, in the absence of the
judiciary discretion, which makes the sentence mandatory, the punishment so
being awarded must be proportionate to the crime, and must include the variety
of the circumstances into consideration.
At the same time, the CLAA also has introduced several new offences into the
Indian Penal Code. The provisions that have been included, provide the
punishment for conducting the offence of rape against a minor girl under the age
of 12 years, and the section provides that the offender may be provided the
punishment of minimum 20 years of imprisonment, which may also extend to
imprisonment for life, while the capital punishment has been set as the bar for
the maximum punishment under this section. On the other hand, the other
sections that have been introduced further the provisions that prior existed for
the offence of gang rape.
After the CLAA, the offence of raping a girl under the
16 years of age now attracts a mandatory life imprisonment sentence. At the
same time, the offence of rape, if committed against a girl under the age of 12
years now attracts enhanced punishment, which ranges from a minimum of life
imprisonment, and extends to even the death sentence to the offender. The
repercussions of these changes so introduced by the CLAA in 2018 as a hasty
measure will be discussed in the later sections.
Changes Made to The Code of Criminal Procedure, 1973:
Before the CLAA was enforced in 2018, the Cr.P.C. was last amended in a slight
manner by the Amendment that was enforced in 2013, but as of now, the CLAA has
further amended the Code, which will be discussed below.
The Code of Criminal Procedure is essentially a procedural law, and lays down
the mechanism for the implementation of the criminal laws as have been laid down
in the various criminal laws. It is undeniable that the role that is played by
the speedy investigation in the cases of criminal nature, and when such speedy
investigation is neglected, and inordinate delays happen in the process of the
investigations, this causes several problems overall, and may often result in
the tampering of the evidences.
As it was before, the Cr.P.C. demanded that the investigation process in the
cases where the offence of rape has been committed against a minor girl, must be
completed within a period of 3 months, but the CLAA has made changes to this
time period, and now demands that the investigation process must be completed
within a period of 2 months, instead of 3. This change has been mandatory in all
categories of the offences of rape, be it rape, gang-rape, and even the rape
done against minor girls below 16 or 12 years of age.
However, the CLAA continues to remain silent for the situations as to what shall
follow if the concerned authorities are unable to complete the investigation
process within a period of 2 months, and if the appeal is unable to be disposed
within a period of 6 months. It I evident from the perusal of the statistics
from the NCRB that the pendency of the cases as of year 2016, the percentage of
cases pending remains at 30.3 per cent, and as many as 16,678 cases remain
queued for investigation processes.
The provision of appeals in the Cr.P.C. does not lay down any specific provision
which concerns with the disposal of the appeals that are filed in the cases of
criminal nature. This is what gives a credible basis to the claims made that
the appellate process under the Cr.P.C. works to become a hurdle for the
implementation of speedy justice to the public, and the Law Commission too,
has expressed in its opinion that there needs to be a change that lays out a
mechanism which helps speedy disposal of appeals in the cases of rape. To
that effect, the CLAA has now added a sub-section to the Section 374 of the
Cr.P.C., that mandates that the appeals must be disposed of within a period of 6
Aside that, Cr.P.C. also includes several provisions that provide for the
anticipatory bail being granted to the individuals. The anticipatory bail is
usually made available to the people who are under the fear that they may be
arrested for having committed a non-bailable offence.
However, the situation after the enactment of the CLAA stands changed, and the
CLAA has included a severe provision in the form of a sub-section being
introduced to Section 438, which makes the availability of anticipatory bail to
the offenders who anticipate their arrest for having committed the offence of
rape against the minors under the age of 16 or 12 years. However, this effort
does not have an effect that is absolute in nature.
Ever since the case of Maneka Gandhi v. Union of India
, the courts
have approached the cases of anticipatory bail with the notion of advancing
fairness and the courts have resorted to invoking the doctrine of
proportionality. The misuse of the existing mechanisms of laws has caused to
spring to life several measures that have been intended to curb this misuse,
such as the blanket removal of the provision of availability of anticipatory
bail in the State of Uttar Pradesh since the year 1976.
Yet there have been cases, where the absence of this provision has been bypassed
in several other ways, which was evident in the case of Amaravati v. State of
, and also in the case of Lal Kamlendra Pratap Singh v. State of
There exists no certainty that the removal of the provision of anticipatory bail
in the cases of rapes and gang-rapes, as has been sought to be done by the CLAA
will be an effective measure to curb the instances of rape in the country, since
as is evident from the precedents, the lack of anticipatory bail has not been a
considerably potent hurdle in the past.
Indeed, a change in the penal provisions within the Indian Penal Code, and in
the mechanisms that exist for their implementation in the Code of Criminal
Procedure was called for, in light of the events that had unfolded earlier this
year, but there was a more acute need of thinking them through.
The amendment so implemented in the form of CLAA is apparent to be lacking, and
it is as clear as day that the changes needed far more deliberation than was
accorded to them. Be it the changes that were made to the existing sections, or
the sections that were added as new offences to the Indian Penal Code, all have
left behind several lacunae, and also have considerable implications because of
the way that they exist as of now.
For instance, the new provisions that have been included into the Indian Penal
Code, for the offences of rape being committed against minors under the age of
12 and 16, the punishment awarded is considerably stringent, and that could run
backwards for the law enforcement agencies.
This is chiefly because the fear of such a stringent punishment would cause a
decline in the reporting of the child marriages. Capital Punishment in this case
will indeed act as a deterrent factor, but the result would be
counterproductive, since the reports of rapes in the cases where the victim is
in a married relationship and under the age of 12, will go drastically go down
due to this change.
The changes so implemented by the CLAA also run counter to what has been
provided under the Juvenile Justice Act. As of after the enforcement of the CLAA,
the Sections 376DA and 376DB have made the punishment as mandatory to the
offenders, which is contrary to what the Juvenile Justice Act states. The
provisions of the JJA prohibit the sentences of life imprisonment or death
sentence to be awarded to a minor who stands in conflict of law.
Contrary to that, the Section 376DA has provided the life imprisonment to be a
mandatorily awarded to an offender who has committed an offence u/S. 376DA. This
intersection is evidence that the changes were not thoroughly assessed before
having been implemented by the Government.
In regards to the changes being implemented to the Code of Criminal Procedure,
the changes are hasty as well, which is a situation identical to the changes
brought about in the Indian Penal Code. Although the CLAA brought changes to the
mechanism of appeals in the Code, yet it persisted to remain silent in cases
where the proposed changes were not fulfilled. The appeals now need to be
dismissed within a period of 6 months, in accordance with the changes that the
CLAA introduced to the Section 374 of the Code, but the repercussions that
should follow in case of non-compliance have not been provided for.
This plethora of blunders is evidence for the fact that the changes that have
been made are redundant, and not effective, in their pursuit for achieving what
they seek. The sought after deterrence by the law makers is not achieved in full
by these changes, rather they only serve to provide the offenders with another
wave of lacunae to exploit for being charged with the offences. The changes,
when hastily implemented tend to undermine the quality of law reforms, and leads
to congestion within the Judicial system. Such a hasty measure should be
avoided, and proper deliberated should be done where its due.
Written By: Saundarya Sinha
- Criminal Law (Amendment) Act, 2013. Available at -
- The Brutal Crime that has Kashmir on Edge”, BBC News, 12 April, 2018,
Available at - https://www.bbc.com/news/world-asia-india-43722714.
- Eltagouri, Marwa (11 April, 2018), “An 8-year-old’s rape and murder
inflames tensions between Hindus and Muslims in India”, Washington Post,
ISSN 0190-8286, Available at - https://www.washingtonpost.com/news/worldviews/wp/2018/04/11/an-8-year-olds-rape-and-murder-inflames-tensions-between-hindus-and-muslims-in-india/?noredirect=on&utm_term=.bd3b255c25f3.
- Was any study done before bringing out the rape ordinance?”, The Hindu,
April 24, 2018, Available at - https://www.thehindu.com/news/cities/Delhi/was-any-study-done-before-bringing-out-rape-ordinance/article23651748.ece.
- The Criminal Law (Amendment) Act, 2018 (22 of 2018), Available at -
- The Indian Penal Code, 1860 (Act 45 of 1860), Available at - https://www.ncib.in/pdf/indian-penal-code.pdf.
- Code of Criminal Procedure, 1963 (Act 2 of 1974), Available at -
- The Indian Evidence Act, 1872 (Act 1 of 1872), Available at - https://indiacode.nic.in/acts/5.%20Indian%20Evidence%20Act,%201872.pdf.
- Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012),
Available at - http://wcd.nic.in/sites/default/files/childprotection31072012.pdf.
- Punishable u/S. 376(1), IPC.
- Punishable u/S. 376(2), IPC.
- Section 376(2), sub-clauses (a) to (n), Indian Penal Code, 1860.
- CLAA, Section 4.
- Earlier, Section 376(2)(i), Indian Penal Code, 1860.
- Supra note 13.
- Vibhute, K.I., 2017, PSA Pillai’s Criminal Law, 824 (Lexis Nexis, 13th
- Satish, Mrinal, 2016, Discretion, Discrimination and the Rule of Law:
Reforming Rape Sentencing in India (Cambridge University Press
- Singh, Indira J., “Stringent punishment to score political points”
Deccan Herald, April 28, 2018, Available at: https://www.deccanherald.com/national/sunday-spotlight/stringent-punishments-score-political-points-667220.html.
- Section 376AB, IPC.
- Section 376DA, IPC.
- Section 376DB, IPC.
- National Crime Records Bureau, Report on Crime in India 2016, 148-149
(Ministry of Home Affairs, 2017).
- Section 374, Cr.P.C.
- T. Mehta, Neha, “The slow road to justice for India's rape victims”, Al-Jazeera,
Aug. 18, 2016, Available at: https://www.aljazeera.com/indepth/features/2016/08/slow-road-justice-india-rape-victims-160817
- Law Commission of India, 172nd Report on Review of Rape Laws, (March,
2000); Law Commission of India, 84th Report on Rape and Allied Offences:
Some Questions of Substantive Law, Procedure and Evidence (1980).
- Section 438, Cr.P.C.
- Maneka Gandhi v. Union of India (1977) 1 SCC 248.
- Section 9, The Code of Criminal Procedure (Uttar Pradesh Amendment) Act,
1976 (Act 16 of 1976), Available at - http://www.lawsofindia.org/pdf/uttar_pradesh/1977/1977UP18.pdf.
- (2005) Cr. L.J 755.
- (2009) 4 SCC 437.
- Section 21, Juvenile Justice Act.