By Hina Kausar & Heena Praveen
The Criminal law (Amendment) Act, 2013 was an effort to castigate increasing offences of sexual nature against women in the country, especially considering the horrific Rape and murder of ‘nirbahaya’ in Nation Capital Region. The publicity of the incident and public outrage forced Government to amend the law on Rape and its punishment. Late J. S. Verma, former Chief Justice of India, was appointed by the Central Government, to suggest amendments to criminal law to sternly deal with sexual assault. Justice Verma’s recommendations called for reform of criminal laws, police reforms, prevention and education interventions to effectively tackle impunity for sexual violence. With the new bill passed by the parliament, the law stands substantially changed. The paper takes stock of the ways in which the new amendments re-framed sexual offences in the law, their significance and the challenges that remain. While being far from comprehensive, these changes substantially transform the way legal redress for sexual offences have been framed in the law
Statutory Safeguards of Rights to a Dignified Life of Women in India
In terms of the Constitutional mandate and in conformity to international legal order, with a view to safeguarding inter alia, dignity of women, the Parliament of India, responding to the need of time and to the aspirations of the people, enacted suitable laws besides adopting laws of foreign origin. These are divided into two categories: Ex post facto laws: Indian Penal Code (IPC) 1860, Indian Evidence Act 1872, Code of Criminal Procedure as amended in 1973. Laws enacted by the Legislature: These laws are Immoral Trafficking Prevention Act 1956, Information Technology Act 2000, The Juvenile Justice (Care and Protection of Children) Act 2000, The Protection of Women from Domestic Violence Act 2005, The Protection of Children from Sexual Offences Act, 2012, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The high level committee under the chairmanship of Justice Verma to review existing laws both ‘adopted and enacted’ suggested amendments to criminal law to effectively deal with incidents of sexual violence.
The committee while placing its mandate within the framework of the constitution grounded its report primarily on the state’s obligation to secure fundamental rights of the citizens including the right of every person to assert one’s individual autonomy. The committee also observed that the failure on the part of the state to secure rights of women amounts to denying the right to equality and dignity and incorporated it in the report that the alterations, modification of the already existing offences as suggested therein, must adhere to the Constitutional framework.
Salient Features of the Criminal Law (Amendment) Act 2013
The amendment Act added new features to the criminal law of the country. Under the Amendment Act:
- The act of rape is newly described with the use of very specific physical terminology, but in contrast to the Ordinance, the amended provision on rape is kept as a gender-specific crime, only committed by men (Amendment Act Sec. 9, Penal Code, Sec. 375);
- The punishment on conviction of rape is in general from seven years to life imprisonment and a fine, but if certain circumstances apply (e.g., rapes committed by police officers or public servants of women in their custody; rapes by a relative, guardian, or teacher of a woman vis-a-vis whom they are in a position of trust or authority; or rapes against women under the age of 16) the punishment upon conviction will be from ten years to life imprisonment and liability to a fine (Amendment Act Sec. 9, Penal Code Sec. 376);
- Capital punishment may be applied to a rapist if the act causes the victim’s death or leaves her in a permanent vegetative state, otherwise the applicable penalty will in general be seven years to life imprisonment (Amendment Act Sec. 9, Penal Code Sec. 376A);
- The punishment for an acid attack that causes harm to the victim will be a minimum term of 10 years’ imprisonment, extendable to a life term, while conviction on voluntarily throwing or attempting to throw acid with the intention of causing damage will incur a penalty of five to seven years (Amendment Act Sec. 5, Penal Code Section 326A & 326B);
- Gang rape is punishable with a prison term of from 20 years to life (meaning the remainder of the offender’s natural life) and a fine (Amendment Act Sec. 9, Penal Code Sec. 376D);
- A new offense of sexual harassment is inserted as section 354A of the Indian Penal Code (Amendment Act Sec. 7);
- For the first time, voyeurism and stalking are defined as offenses (Amendment Act Sec. 7, Penal Code sections 354C & 354D);
- A punishment ranging from 10 years to life imprisonment and liability to a fine will be imposed on those convicted of trafficking a minor, and if more than one minor is involved, the applicable sentence will be 14 years’ imprisonment, extendable to life imprisonment, and liability to a fine (Amendment Act Sec. 8, Penal Code Sec. 370(4) & (5));
- Public Servants who knowingly disobey legal provisions regulating the manner in which they are to conduct an investigation into an offense or who fail to record information given to them under relevant provisions of the Code of Criminal Procedure may be subject to a punishment of from six months to two years of imprisonment and a fine (Amendment Act Sec. 3; Penal Code Sec. 166A); and
- Persons in charge of public or private hospitals will be subject to a prison term of up to one year and/or a fine for non-treatment of victims (Amendment Act Sec. 3, Penal Code Sec. 166B).
Significant Changes Made in the Act in Comparison with the Ordinance
- Stalking: The offence is no longer gender-neutral, only a man can commit the offence on a woman. The definition has been reworded and broken down into clauses. Punishment for the offence has been changed; a man committing the offence of stalking would be liable for imprisonment up to three years for the first offence, and shall also be liable to a fine, and for any subsequent conviction would be liable for imprisonment up to five years and with a fine.
- Trafficking of person: “Prostitution” has been removed from the explanation clause.
- Rape: The word sexual assault was replaced back to rape. The offence is no longer gender-neutral, only a man can commit the offence on a woman. The clause related to the touching of private parts has been removed.
- Acid attack: Fine shall be just and reasonable to meet medical expenses for the treatment of the victim, while in the Ordinance it was a fine up to Rupees ten lakhs.
- Sexual harassment: “Clause (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature” has been removed. Punishment for offences under clause (i) and (ii) has been reduced from five years of imprisonment to three years. The offence is no longer gender-neutral, only a man can commit the offence on a woman.
- Voyeurism: The offence is no longer gender-neutral, only a man can commit the offence on a woman.
Doubts and Challenges
The Criminal Law (Amendment) Act, 2013 has been strongly criticized by several human rights and women’s rights organizations for not including certain suggestions recommended by the Verma Committee Report, like marital rape, reduction of the age of consent, and amending the Armed Forces (Special Powers) Act so that no sanction is needed for prosecuting an armed forces personnel accused of a crime against a woman.
Several provisions under the Act differ from the provisions in the ordinance. Under the Act, unlike in the Ordinance, the terms “watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person” are not included as a part of the offence of stalking. Hence, the offence is limited to the physical act of following or contacting a person, provided that there has been a clear sign of disinterest, or to monitoring the use by a woman of the internet, email, or any other forms of electronic communication.
Inconsistency with Other Laws IPC is a general law. Actions penalized under the IPC may also be punishable under special laws. Special laws such as the SC/ST Prevention of Atrocities Act and the POCSO Act seek to protect certain classes of persons on account of their vulnerable position in society. The punishment for offences under the Ordinance is higher than under these special laws. Furthermore, some offences under the Ordinance only protect women, whereas, under the special laws, they protect both men and women.
Gradation of Punishment (Offence of Sexual Assault / Penetrative) Under Sec. 375, all offences whether penile penetrative or oral penetrative carry equal punishment. There must be a gradation of offences based on the gravity of the offence as done in the United Kingdom Sexual Offences Act 2003. Maximum punishment must be provided for penile penetration as it causes sexual disease or pregnancy to the victim.
Gender Biased Only women are seen as victims of sexual offences in the IPC. The grievances of other needful sexual minorities are not addressed. Women are shown as weak and in need of protection. This biased approach must be changed by bringing requisite changes in the language of the penal provisions.
Marital Rape Marital rape is not made an offence when the wife is above 15 years, but sexual intercourse by a husband with his own wife living separately under a judicial decree or otherwise is an offence. Marital rape is a crime in a number of countries, such as the UK, Turkey, Canada, and the USA. In 1993, the United Nations’ General Assembly had adopted a Declaration of Elimination of Violence against Women which specifically included marital rape as a crime against women.
Role of State to Curb Violence against Women
To sum up, the role of the state remains paramount in tackling violence against women. Therefore, law-implementing agencies should be adequately provided strategic training to tackle any eventuality with dexterity—even if it necessitates increasing the number sufficiently. Alongside, as also suggested by the Justice Verma Committee report, there remains a desperate need to improve the public-police relationship, possibly through a goodwill venture (training police officials as well as the public in gender-sensitive programs). The challenge, therefore, lies in scaling the mechanism of coordination and cooperation from a few to all stakeholders of the state.
To be more precise, the executive, which is delegated with the responsibility of investigating a trial in a judiciary, should bear a sense of accountability (rather than misusing its power) in ferreting out the actuality of the facts so that the outcome of the trial turns out to be unbiased, fair, and flawless. At the same time, the incitement and provocation alarmingly disseminated by the media and other information agencies must be shackled appropriately in compliance with decency, morality, and social order—the constitutional mandate. Last, and in line with the JVC report, reformation in curriculum right from the primary level of education has to be brought: embracing value-based moral lessons, incorporating perception reforms through gender-blind programs, and creating a congenial atmosphere in the domestic, social, and institutional sectors.
Concluding Remarks
The anti-rape legislation is undoubtedly a positive step in the direction of a safer environment. This law brings in the system of accountability of the police authority and expedient justice for the victim in the form of time-bound trials and the establishment of fast-track courts. It provides statutory recognition to offences such as stalking and voyeurism and also addresses anomalies by substituting it with sexual assault which includes a variety of un-consented sexual conduct. Though the Criminal Law (Amendment) Act 2013 is inconsistent in part, it overcomes those inconsistencies by its spirit. Hence, it has overhauled the law relating to sexual crimes against women.