LawZ Magazine

Crimes under Nirbhaya Act, 2013

By Dr. Petikam Sailaja

Introduction

The Criminal Law (Amendment) Bill, 2013 commonly known as the Anti-Rape Bill came into force on Wednesday, April 3 after President Pranab Mukherjee put his signature into the Bill. Thereafter this Bill called as The Nirbhaya Act, 2013. The need for a strict law to deal with sex crimes against women was felt after the brutal gang-rape and murder of a 23-year-old paramedical student in a moving bus in the national capital on December 16, last year. The victim died 13 days after the incident in a Singapore hospital on December 29, last year. The brutality of the crime shocked the nation.

Indians protested on the streets to demand better safety measures for women and strict laws to punish the culprits. Under public pressure, Congress-led UPA government at the Centre formed Justice J.S. Verma panel to come up with strict laws to arrest crime against women. In order to bring a strong law, which is pro-women and will act as a deterrent, it will create a revolution in the country.

Some of the key points in The Nirbhaya Act, 2013

  • The law maintains life imprisonment for rape as the maximum sentence, yet sets down the death penalty for repeat offenders and those whose victims are left in a “vegetative state”.
  • It also expands the meaning of rape to include penetration of the mouth, anus, urethra or vagina.
  • It also defines stalking and voyeurism as crimes with punishments up to seven years.
  • Gang rape has been recognised as an offence, while sexual harassment has been redefined to include unwelcome advances with sexual overtures and showing pornography without consent.
  • The age of consent of sex has been kept at 18.
  • The law also punishes police and hospital authorities with imprisonment of up to two years if they fail to register a complaint or treat a victim.

An Overview of the Nirbhaya Act, 2013

Keywords of the Nirbhaya Act, 2013 (hereinafter the Act) are further to amend the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 and the Protection of Children from Sexual Offences Act, 2012. The Act contains totally 30 sections which are inserted in VI chapters. Chapter-I deals as usual Preliminary and contains only one section, i.e. short title and commencement. This Act may be called the Criminal Law (Amendment) Act, 2013.

Chapter-II deals with the provisions of the Amendments to the Indian Penal Code, 1860 under sections 2 to 10 of the Act, Chapter-III deals with the provisions of the Amendments to the Code of Criminal Procedure, 1973 under section 11 to 24 of the Act, Chapter-IV deals with the provisions of the Amendments to the Indian Evidence Act, 1872 under sections 25 to 28, Chapter-V deals with the provisions of the Amendment to The Protection of Children from Sexual Offences Act, 2012 under section 29 and the last Chapter-VI deals Miscellaneous under section 30 i.e. repeal and savings.

Though the Act amended the Indian Penal Code, Law of Evidence, Code of Criminal Procedure and Protection of Children Sexual Offences, this article mainly covers the crimes under this Act i.e. mainly Part I and Part IV (provisions of Indian Penal Code and Provisions of Protection of Children from Sexual Offences Act) with view to know which acts of the people are to constitute the crime under the Nirbhaya Act, 2013.

Provisions of the Amendments to The Indian Penal Code, 1860

Right of Private Defence

As per the Act, section 100 of Indian Penal Code, 1860 is amended and now the right of private defence available of the body extends to causing death if an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act. So previously Indian Penal Code did not cover the acid attacks.

Offences by or relating to Public Servants

New sections 166-A and 166-B are inserted in the Chapter of Offences by or relating to Public Servants of Indian Penal Code, 1860. So now according to section 166-A of Indian Penal Code, 1860, a public servant shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine, if he —

  • knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter;
  • knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation; or
  • fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973, in relation to a cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509.

According to section 166-B of Indian Penal Code, 1860, whoever, being in charge of a hospital, public or private, whether run by the Central Government, the State Government, local bodies or any other person, contravenes the provisions of section 357C of the Code of Criminal Procedure, 1973, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.

Safety of Women

Voluntary Causing Grievous Hurt

According to this Act, two new sections are inserted in the category of aggravated form of voluntary causing grievous hurt by use of acid attack etc., and voluntary throwing or attempting to throw acid under section 5 of the Act.

Assault or criminal force to woman with intent to outrage her modesty

Section 354 of the IPC amended, so now punishment for 354 shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

Now four new sections are inserted in the category of outrage modesty of women. They are:

  • Section 354A: Sexual harassment and punishment for sexual harassment.
  • Section 354B: Assault or use of criminal force to woman with intent to disrobe.
  • Section 354C: Voyeurism.
  • Section 354D: Stalking.

Trafficking of person

Previously section 370 of IPC stated that whoever buying or disposing of any person as slave is an offence. But now this section is substituted by trafficking of person and inserted new sections 370 and 370A for section 370.

Rape

Now rape definition is redefined under section 375 of IPC, 1860, punishment for rape also changed under section 376 and substitution of new sections for 376A, 376B, 376C and 376D.

New Definition of rape is as follows:

A man is said to commit ‘rape’ if he — (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

  • First — Against her will.
  • Secondly — Without her consent.
  • Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
  • Fourthly — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
  • Fifthly — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  • Sixthly — With or without her consent, when she is under the age of eighteen years.
  • Seventhly — When she is unable to communicate consent.

Explanation 1 — For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2 — Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.—A medical procedure or intervention shall not constitute rape.

Exception 2—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Section 376A deals punishment for causing death or resulting in persistent vegetative state of victim, section 376B deals sexual intercourse by husband upon his wife during separation, section 376C deals sexual intercourse by a person in authority, section 376D deals gang rape.

Teasing

Whoever, intending to insult the modesty of any woman, utters any word or gesture shall be punished with simple imprisonment for a term which may extend to three years, and also with fine. It means section 509 of IPC amended and enhances the punishment.

Amendment Provisions of Protection of Children From Sexual Offences Act, 2012

The amendment to Protection of Children from Sexual Offences Act, 2012 are as follows under Chapter V of the Nirbhaya Act:

Substitution of new sections for section 42 of Act No. 32 of 2012

“42. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. 42A. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.”

Conclusion

The Act has been termed by the government as the “single pill” to address all ills (crimes) against women. But, the question is whether the bill can protect women in India. Is having an Act enough to end crimes against women? Or, better implementation of laws, more sensitive police, civil society and change in mind set can tackle the issue of crime against women?

It is of no use making legislations to protect the rights of women. Instead, men should change their attitude towards the fairer sex. Words like women empowerment and safety of women have confined to paper only. Still in our society discrimination against women is continuing unabated.