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A Critical Analysis of Criminal Law Amendment Act, 2018

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[1], 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[2] 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:
  1. The Indian Penal Code, 1860,
  2. The Code of Criminal Procedure, 1973,
  3. 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[3] dealt with the punishment for rape of a woman in all cases, except for those referred to in Section 376(2)[4]. 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)[5] 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 life imprisonment.
  • The amendment under Section 376 AB[6] 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[7] and 376 DB[8].

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 rape cases.
  • 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.[9]
  • 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 Code.[10]
  • 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 16.
  • 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[11] 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 such legislation.

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.

A 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 qualities:
  1. precision (free from ambiguities)
  2. comprehensibility (easily understandable by ordinary citizens), and
  3. product of legislative lawmaking (minimum judicial interference).[12]
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 punishable.

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 different punishment.

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.

For example, after Juvenile Justice (Care and Security of Children), 2015[13], 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.

The mandatory 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 of death.

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 gang rape.

In Priya Patel vs State of Madhya Pradesh[14], 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.[15]

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.[16] 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 fake cases.

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[17] 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. [18]

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, inconsistencies.

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 follows:
  1. 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 offences
  2. 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.
  3. Judicial discretion for sentencing policies while keeping in mind mitigating factors should be re-introduced to avoid the situations for miscarriage of justice.
  4. 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.
  5. 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 justifiable.
End-Notes:
  1. The Criminal Law (Amendment) Act, 2018, No. 22, Acts of Parliaments, 2018
  2. The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliaments, 2013.
  3. Indian Penal Code 1860 § 376(1).
  4. Indian Penal Code 1860 § 376(2).
  5. Indian Penal Code 1860 § 376(3).
  6. Indian Penal Code 1860 § 376AB.
  7. Indian Penal Code 1860 § 376DA
  8. Indian Penal Code 1860 § 376DB.
  9. Code of Criminal Procedure 1973 § 438.
  10. Code o Criminal Procedure 1973 § 439.
  11. Protection of Children from Sexual Offences Act 2012 § 42.
  12. Stanley Yeo & Barry Wright, The Legacies and Modern Challenges of Criminal Law REFORM 4-5 Routledge 1, (2011).
  13. Juvenile Justice Act (Care and Protection of Children), 2015, No. 2, Act of Parliaments, 2016.
  14. Priya Patel v. State of Madhya Pradesh, (2006) 6 SCC 263.
  15. 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), https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf.
  16. Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
  17. Justice V. S. Malimath, Report of the Committee on Reforms of Criminal Justice System (Mar. 2003), https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf.
  18. Indira Jai Singh, Stringent Punishment to Score Political Points, Deccan Herald, (Apr. 28, 2018), Accessed at Oct 22 at https://www.deccanherald.com/national/sunday-spotlight/stringent-punishments-score-political-points-667220.html.

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