The two heinous incidents in Kathua and Unnao
shook the whole nation's
conscience, cases like these reflected that the existing laws dealing with the
rape offence were not sufficient The 2018 Criminal Law (Amendment ) Act,
hereinafter referred to as ‘2018 Amendment’ is indeed a reactionary step of
these two brutal cases by Parliament. The 2013 amendment was considered as an
amendment featuring strict provisions.
The collective conscience of society was
taken aback by the Kathua rape case; despite the strict 2013 Criminal Law
Amendment Act passed post-nirbhaya. These cases of rape were extensively
reported by the media, leading to public anger. As a result, the government has
decided to take some steps.
On 21 April 2018, the President introduced the Criminal Law Amendment Ordinance.
The Criminal Law (Amendment) Bill, which replaced the Ordinance, was then tabled
in Parliament. On 6 August 2018, the Bill was passed by Parliament. The
President signed the Bill and, subsequently, the Criminal Law (Amendment) Act,
2018 came into effect. The bill resulted in amendments in four legislations:
- The Indian Penal Code, 1860,
- The Code of Criminal Procedure, 1973,
- The Protection of Children from Sexual Offences Act, 2012 and The
Evidence Act, 1872.
The Amendment made to Indian Penal Code, 1860
Before the 2018 Amendment, Section 376 of IPC deals with punishment in two
circumstances. They are as follows:
- Section 376(1) of IPC dealt with the punishment for rape of a woman
in all cases, except for those referred to in Section 376(2). In such
cases, the punishment was strict imprisonment with a minimum of seven years,
which could be extended to life imprisonment.
- Section 376(2) of IPC dealt with the punishment of police officers,
civil servants, members of the armed forces, etc. for raping a woman. This
provision has not been amended and is a rigorous imprisonment of a minimum of
ten years that can be extended to life imprisonment.
But after the amendment, section 376 of IPC deals with three categories of rape.
They are as follows:
- Under Section 376(1) punishment for the rape of a woman increased to a
minimum of ten years of rigorous imprisonment that may extend to life
imprisonment. Therefore, the amount of punishment increased from a minimum
of seven years to a minimum of ten years.
- The amendment added punishment under Section 376(3) for rape against
a woman under the age of sixteen years. In such cases, the penalty must be
rigorous imprisonment for a minimum of twenty years, which can extend to
- The amendment under Section 376 AB also added punishment for rape
against a woman under the age of twelve years. In such circumstances, the
penalty is stipulated as a minimum of twenty years of rigorous imprisonment,
which can extend to life imprisonment. In such circumstances, the
perpetrator may also be punished with the death penalty. For the first time,
the death penalty has been introduced for the offence of rape considering
the gravity of the incident.
- Additionally, a provision that deals with punishment for gang rape
against a woman between the age of sixteen and twelve years has been added
to Sections 376DA and 376 DB.
The punishment in such instances must always be
life imprisonment. However, it is also probable to award the death penalty for
gang rape against a woman less than twelve years of age.
This decision depends
on the court while considering the gravity.
- Clause (i) Section 376(2) has been omitted.
The Amendment Made to the Code of Criminal Procedure, 1973
There have been subsequent changes in the CrPC to reach the ends of justice in
- If a person is accused of rape against a woman under the age of sixteen,
the High Court or the Court of Session shall not grant him anticipatory bail
under Section 438 of CrPC.
- The amendment obligated the authorities for speedy investigation and
trial. The investigation must be mandatorily finished within two months and
the appeal must be disposed of within six months
Further, the amendment also incorporated two amendments to Section 439 of the
- A provision has been inserted specifying that the High Court or the
Session Court must notify the public prosecutor within 15 days of receiving
a bail application by an accused person of raping a girl under the age of
- A sub-section has been inserted which states that in rape cases, the
presence of the informant or a person approved by him is compulsory during
the hearing of the defendant's bail plea.
In addition to amendment of these two legislations, changes have been introduced
Section 42 of the Protection of Children from Sexual Act which deals with
alternative punishment to include Sections 376AB, 376DA, and 376DB of IPC and
Section 53A and Section 146 of the Evidence Act, 1972 to make the provision of
the Evidence Act to align with the amendments in other Acts.
Analysis And Interpretation
The background of legal reactions to sexual violence in India demonstrates that
a law enforced in the aftermath of any 'highlighted' incident may be based on a
hasty interpretation of the problem, which is often faulty and vague. The
‘mobocratic’ origin of law reforms being carried out in India is evident from
the fact that political leadership could rush through stringent laws to
capitalize on sympathy or avoid public backlash. Scientific and rational
evaluation of facts and a robust debate among lawmakers are often missing in
In other words, a hasty law represents a buried debate. Those Piecemeal
‘rigorous’ steps could fulfill the common desire of society to see that
something is being undertaken. Yet society's symbolic gratification has a
counterproductive and cascading effect on the criminal justice system.
perfunctory law reform exercise often misses out on the intricate nature of
legislative drafting and ultimately ended up with an ambiguous piece of
legislation with a need for judicial interpretation. The architect of the Indian
Penal Code (IPC), Macaulay, was of the view that a good code should have three
- precision (free from ambiguities)
- comprehensibility (easily understandable by ordinary citizens), and
- product of legislative lawmaking (minimum judicial interference).
But the voluminous IPC has become
an anti-thesis to the above-mentioned specifications.
Delhi HC also challenged the hurriedness shown by the government while drafting
the ordinance by sending a notice demanding for relevant scientific assessment
before promulgating the ordinance. The manifold increase in the punishment can
be observed on a bare perusal of the provisions of the amendment Act and the
State claims these stringent provisions will serve as a deterrent to
increasing sexual assault activities. The law doesn’t, however, reconcile itself
with the fundamental realities of sexual harassment of India and the established
standards of criminal law.
Blurring Classification Or Rape And Aggravated Rape
Following the provisions of section 375 and section 376 of the IPC, two
categories of rape exist- (i) Simple Rape-punishable under section 376(1) of the
IPC and (ii) Aggravated Rape- Punishable under section 376(2) of the IPC. There
are primarily 14 circumstances under which rape is said to be aggravated because
victims are more prone in such aggravated circumstances than simple rape
Earlier, for the crime defined in section 376(2) of the IPC, the minimum penalty
for the perpetrators of an aggravated rape is imprisonment for 10 years, while
if the convict who committed a simple rape falling within under section 375 of
the IPC is imprisoned under section 376(1), the minimum punishment was 7 years
and the maximum was life imprisonment.
The minimum statutory punishment for simple rape has been extended from seven to
ten years following the 2018 amendment. Although the rapid increase in
punishment tends to be deterrence and helpful, some of its deficiencies are
revealed by the bare reading of the new amendment.
The difference between simple
rape and aggravated rape has collapsed. As for both categories of rape, the
minimum penalty is 10 years of imprisonment. Clauses under section 376(2) from
(a) to (n) which encompasses situations for aggravated rape have no greater
penalty in comparison to simple rape. There seems to be no rationale for the
same gravity of punishment of two distinct offences. If a distinction is made
between the two categories of rape under the IPC then there should be
Earlier, Section 376(2) (i) used to deal with situations in which a woman under
the age of sixteen years was raped and after the 2018 amendment, this provision
has been omitted. And a new sub-section (3) to section 376 has been introduced
in which a minimum of 20 years of imprisonment and a maximum of life
imprisonment has been given in situations in which the defendant has committed a
rape offence on a woman under the age of 16 years. 20 years of imprisonment
appears to be excessive and unjust in situations in which young people
participate in sexual relationships. Especially in India, because there is no
judicial capacity to restrict the sentence after the 2013 amendment, even
if there are mitigating factors for the same. A 15-year-old girl and an
18-year-old man, for instance, are engaged in a 'consensual sexual activity,'
which is not unusual.
This is a case of statutory rape and further, it becomes a
case of aggravated rape once it has been proven that the girl was under the age
of 18. The question of consent does not come into the picture and the youth will
be imprisoned for a minimum of 20 years.
There is no doubt that to prevent underage pregnancies and underage sexual
activities, there is a need for the state role in offering statutory protections
to save young women from being exploited and pressured into sex practices, but
at the same time when consenting adolescent couples engages in such sexual
relationship and then man has to face 20 years of imprisonment seems harsh and
unjustified. Juveniles are also affected by the effects of this amendment.
example, after Juvenile Justice (Care and Security of Children), 2015, a
juvenile who is 17 years old will now be considered as an adult and he will be
prosecuted according to the provisions of the IPC. This illustrates how
inconsistency in one law can impact the provisions of another law, since it is
not life imprisonment, a 17-year-old juvenile can be sentenced to 20 years
imprisonment. The Effect of such harsh punishment will undoubtedly frustrate
juveniles and under no circumstances he can be reformed.
New Offences For Rape And Gang-Rape
Section 376 DA of IPC states that:
when 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.
punishment of life imprisonment requires some consideration. Mandatory sentence
of life imprisonment without judicial discretion could lead to instances of
miscarriage of justice, no individualized conditions would be taken into
consideration when dealing with these cases, and the judges in question could
also demand stringent proof because the mandatory life sentence is in issue,
this will certainly impact the rate of conviction. It seems that while making
these strict laws to deal with the issues of girl child abuse, no check
on-ground social realities were taken into consideration. It is a well-known
reality that child marriage is a social issue that exists in India. While these
marriages are unlawful, these marriages are not deemed invalid, taking into
account the figures that indicate the number of child marriages.
This will lead to cases of rape where because of severe penalties; victims of
rape would not report the cases. For example, any married woman under the age of
16 or 12 will not file a rape case against her husband because imprisonment and
death are mandatory punishments.
Some provisions of the Juvenile Justice Act overlap with the 2018 amendment.
Section 21, Juvenile Justice Act, states that life imprisonment and death
sentences can’t be issued to a juvenile. There may be situations in which
juveniles could be the perpetrators of serious crimes, as discussed above.
Section 376DA provides provisions for mandatory life imprisonment and Section
376DB provides provisions for minimum life imprisonment and a maximum sentence
Now there is a clear conflict with the 2018 amendment and the Juvenile
Justice Act if a criminal is involved in these situations. In the 2018
amendment, there is no such exception, which ultimately demonstrates
Parliament's 'hasty decisions' in implementing this amendment.
The issue of gender neutrality in cases of gang rape is one of the problems that
still exist in the 2018 Amendment. It is justified to convict female
perpetrators who have the common intention of raping a woman with their male
counterparts. But a woman should not be held responsible for the crime of gang
rapes although she is a participating member or facilitating the commission of
In Priya Patel vs State of Madhya Pradesh
, the Supreme Court held
that it is "unimaginable for a woman to rape another woman." This is a narrow
decision provided by the SC, which has the possibility of breaking the myth of
"only a man can rape a woman," but the Supreme Court took an opposite narrower
view. In cases of gang rape, the Justice Verma Committee has proposed rendering
women responsible. It was recommended that each perpetrator, regardless of their
gender, should be given punishment for gang rape.
Capital Punishment In Rape Cases: Deterrent Or Not?
Introducing the death penalty in cases of child rape is considered one of the
most impressive provisions of the 2018 Amendment. There has been a massive
public demand for the introduction of the death penalty in rape cases for a long
time. India is a nation that still claims that the death penalty plays an
important role in the prevention of crime.
The demand, therefore, was that if
the death penalty were enforced in cases of rape, there would be a decrease in
the ongoing situation of rape problem that is prevalent in India. There is no
question that countries around the world have begun to opt for the abolition of
the death penalty and regard the death penalty as non-deterrent that has been
demonstrated by numerous studies.
On the other hand, India has not only
preserved the death penalty in cases of rape but has also extended its
application, which is certainly not a progressive and appropriate solution
specifically to solve the issue of child rape cases. The SC has never denied the
statutory validity of the death penalty, but at the same time narrowed its scope
of application to the rarest of rare cases. It should be examined that the
punishment plays a role in deterring crime, if not why these stringent penalties
are justified in making certain individuals fragile, who might be trapped in
If a person is wrongfully convicted and his death sentence is executed, nothing
can get his life back as death penalty can’t be reversed. Any person
can naturally make a mistake, as does a judge, but one mistake will take the
life of an individual in this case. The other alarming point may be that a judge
will certainly ask for strong evidence to secure conviction for the accused from
the prosecution because the judge knows that one wrong decision may take away
the life of an accused.
It will then impact the conviction rate. The other claim
may be that the accused might kill the victim as he could fear that the victim
might provide proof of the crime of rape and fear the death penalty. The Malimath Committee proposed the need for procedural changes in the criminal
justice system instead of awarding the death penalty in cases of rape. It
proposed that procedural improvements would result in the assurance of
punishment which would be a true deterrent rather than the death penalty.
One of the most striking variables that undoubtedly exist in India is that the
perpetrators are from family or close relations in cases of rape involving
minors. There is no doubt that the cases of rape in which the perpetrators are
either relatives or neighbors are rising. Again, this is a factor leading to the
underreporting of rape cases. In most of the rape cases, senior advocate Indira
Jai Singh argued that perpetrators belong to the victim's family, this aspect
could lead to a situation in which either victim would not prefer to report the
crime or she would be forced not to report the crime, since the punishment could
lead to death. 
Conclusion And Recommendations
One of the most significant links that describe the relationship between a state
and its people is criminal law. Therefore, it is beneficial if this relationship
is established specifically and explicitly in the penal laws. Criminal law,
which is considered to be the most effective state mechanism limiting the
constitutional right of persons to life and personal liberty, must be free of
inconsistencies and ambiguities.
Apparent inconsistencies in criminal law render
the reach of a specific provision difficult for ordinary citizens and even legal
experts feel difficult to interpret. On the one hand, because of slow progress
in law changes, the IPC and its amendments are subjected to persistent judicial
interpretation of border-lining legislation. Whereas on the other hand, the
legislature and the executive continues to sleep on proposals made by expert
bodies and committees for significant law reform. The IPC and its controversial
anti-rape reforms, therefore, continue to suffer from ambiguities,
Moreover, the ideology of deterrence by the State is nothing but a misplaced
institutional aggression, disconnected from the complexities of the ground. What
is expected from any government is not merely passing legislation, but
undertaking rigorous analysis, evaluating its results, and applying
justification before any law is made.
In the absence of a holistic research
approach, the legislature will continue to pass vague and omnibus laws that
disregard the fundamental principles of jurisprudence in criminal law and
constitutional values. All actors of a criminal justice system should understand
that it is only possible to achieve respect and obedience to laws when
legislators acknowledge the need to balance individual rights with that of
society, along with the interest of the state in ensuring law and order.
The author discussing all the aspects regarding the Criminal Law Amendment Act,
2018 wants to recommend some suggestions that should be taken. They are as
- There is a need to impart education in the population about the
provisions of rape laws because many individuals in rural areas aren’t even
aware of the laws. At the same time, there is an immediate need of adding
sex education in the school curriculum to make students understand sexual
- Firstly, we need to analyze that whether there is a need to increase the
punishment for simpler rape and on what grounds punishment has been
increased, and secondly, we need to observe that whether the specific
provisions acting as deterrence.
- Judicial discretion for sentencing policies while keeping in mind
mitigating factors should be re-introduced to avoid the situations for
miscarriage of justice.
- The Amendment neglected the prevalence of marital rape while drafting
the legislation. We need to recognize the significant increase of marital
rape in the lack of proper statues to deal with it.
- Now the time has arrived when we should consider drafting gender-neutral
laws. There have been numerous instances when the offender of rape is a
female. So leaving these criminals just because of their gender shouldn’t be
- The Criminal Law (Amendment) Act, 2018, No. 22, Acts of Parliaments,
- The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliaments,
- Indian Penal Code 1860 § 376(1).
- Indian Penal Code 1860 § 376(2).
- Indian Penal Code 1860 § 376(3).
- Indian Penal Code 1860 § 376AB.
- Indian Penal Code 1860 § 376DA
- Indian Penal Code 1860 § 376DB.
- Code of Criminal Procedure 1973 § 438.
- Code o Criminal Procedure 1973 § 439.
- Protection of Children from Sexual Offences Act 2012 § 42.
- Stanley Yeo & Barry Wright, The Legacies and Modern Challenges of Criminal
Law REFORM 4-5 Routledge 1, (2011).
- Juvenile Justice Act (Care and Protection of Children), 2015, No. 2, Act
of Parliaments, 2016.
- Priya Patel v. State of Madhya Pradesh, (2006) 6 SCC 263.
- Justice J.S. Verma & Justice Leila Seth & Gopal Subramanium,
Report of the committee on Amendments to Criminal Law, Justice Verma
Committee On Amendments To Criminal Law (Jan. 23, 2013),
- Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
- Justice V. S. Malimath, Report of the Committee on Reforms of Criminal
Justice System (Mar. 2003),
- Indira Jai Singh, Stringent Punishment to Score Political Points, Deccan
Herald, (Apr. 28, 2018), Accessed at Oct 22 at