Taking into account the delay in Nirbhaya Case, Centre filed a petition in Supreme Court seeking reforms in the laws tilted towards convicts who have been charged with the death penalty. With the jurisprudence evolving over time, let us have a look back on how rape laws in Indian Penal Code, Code of Criminal Procedure (CrPC), and Indian Evidence Act have been amended.
Crux of the Matter
Scope of Indian Penal Code The previous law had a very narrow definition of what is considered to be a rape or sexual assault. The amendment broadened that definition with the addition of Section 370 and 370A in the Act. According to the amended Act, 1) penetration of penis into vagina, anus, mouth, or urethra, or 2) penetration of any part of the body or any object into vagina, anus, mouth or urethra, or 3) applying mouth, or 4) touching private parts of a woman is considered sexual assault. The Law also gives clarification on certain important interpretations:
penetration is translated to “penetration to any extent”
the law will consider offense under all situations including in the absence of any physical resistance.
The offender will be punished with imprisonment up to a minimum of 7 years and fine. In certain aggravated conditions the imprisonment can be a minimum of 10 years to life imprisonment and a fine.
IPC Section 376A Section 376A which was added to the Indian Penal Code in 2013 deals with the situation in which the victim dies or goes in a permanent vegetative state. In such a case the punishment will be imprisonment for a minimum of 20 years or life imprisonment. In the case of sexual assault involving multiple perpetrators, or gang assault, the offender regardless of the gender will be imprisoned for a minimum of 20 years and penalized to an extent that meets the medical expenses and rehabilitation expenses of the victim.
Other Amendments There were certain other important changes to the rape law post Nirbhaya. Any kind of sexual activity with a woman below 18, regardless of the consent, would be considered statutory rape. Thus, the age of consent was increased to 18 years. As a part of the Evidence Act and Criminal Procedures Code,
the history of the victim was not to be taken into account while assessing the case or recording the victim’s statements.
if the victim makes a statement in the court that there was no consent, it would be presumed that there was no consent for the sexual activity.
the practice of confirming rape with the two-finger test was rendered void.
In 2018, the government of India launched a project to establish 1,023 Fast Track Special Courts to expedite justice for the pending sexual assault cases and POCSO (The Protection of Children from Sexual Offences Act) cases.
Harsh Punishments in Criminal Law (Amendment), 2013 Criminal Law (Amendment), 2013 was brought into the House by the President of India, Pranab Mukherjee after widespread protests engulfed India post Nirbhaya case. Punishments in the law were made stricter as follows: Section 326A – This Section pertains to the gender-neutral offense of Acid Attack. The punishment for the crime is imprisonment for at least 10 years which can go up to life imprisonment and reasonable fine that is ample to meet the treatment expenses of the victim. Section 326B – This Section deals with the gender-neutral offense of attempt of acid attack. The punishment for the crime is imprisonment from 5 to 7 years and a monetary penalty. Section 354A – The Section deals with the offense of Sexual Harassment. This law protects only women. Any undue physical contact and advancement or uninvited and explicit sexual advancement, or request or behest for sexual favors, or force for watching pornography, can land the convict in jail for up to three years and or impose a monetary fine. Moreover, uttering sexually tinted remarks, or uninvited verbal, non-verbal, or physical conduct that is sexual in nature can land the convict in jail for up to one year and impose fine. Section 354B – This Section deals with the crime of disrobing a woman. Any person committing the crime of assaulting or criminally forcing any woman to be disrobed or abetting such an act with the purpose of disrobing a woman can be imprisoned for 3 to 7 years and be fined. Section 354C – This Section that deals with the offense of Voyeurism considers watching, clicking, or filming,1.) a woman in an intimate act that is reasonably carried out in private and in which the victim’s breasts, buttocks, or genitals, are exposed or are covered only with underwear, or 2.) a woman using toilet, or 3.) a woman involved in a sexual activity that is reasonably carried out in private, charges the first time offenders with imprisonment from 1 – 3 years, and a monetary penalty, and subsequent offenders with 3 – 7 years of imprisonment and monetary penalty. Section 354D – This Section deals with the offense of Stalking. This law is applicable only in a case where a man is stalking a woman. It has been precisely defined as (reshaped) “1.) an act of following or contacting or trying to contact a woman to cultivate a personal interaction in spite of repeated denials, explicitly, or 2.) an act of monitoring the life of a woman through monitoring her internet, email, or any other electronic communication medium is considered stalking.”. If such an activity is being carried out by the State or State-authorized personnel in order to solve or prevent a crime, and it is in compliance with law, then it is an exception. Stalking can land a man in jail for 1 – 3 years and charge him with a fine.
Criticism of the Act The Act has been criticized on two fronts. Firstly, a lot of human rights activists have said that the skewed act could empower women to misuse the law against men and to commit similar crimes themselves with invulnerability. Secondly, the amendment did not inculcate Verma Committee‘s certain recommendations such as reduction of the age of consent and change in law of marital rape. Moreover, the law also did not include the suggestion of amending the Armed Forces (Special Powers) Act that states that the State needs sanctions to prosecute an offender who is in the Armed Forces.
Curiopedia
Actus Reus – To sustain a conviction, rape might require proof that the defendant had sexual penetration with another person. Depending on the jurisdiction, the actus reus of rape may consist of “having carnal knowledge of” a woman, or “having sexual intercourse with” a woman specifically, or either a woman or a man generally, or engaging in sexual intercourse with a person or having “sexual connection” with a person affected by penile penetration of that person’s genitalia, or penile penetration of the vagina, anus or mouth of a person. More Info
Mens Rea – Countries around the world differ in how they deal with the mens rea element in the law regarding rape, (i.e. the belief of the accused that the victim is not consenting or might not be consenting), and in how they place the onus of proof with regard to belief of consent. More Info
Curated Coverage
Ministry of Home Affairs – The Criminal Law (Amendment) Act, 2013
Times of India – How Nirbhaya case changed rape laws in India
The Hindu – Five years after Nirbhaya what has changed for women in public places
Economic Times – Rape law changes after Nirbhaya case haven’t worked, says SC
NDTV – Anti-rape bill cleared by Lok Sabha, many ministers, MPs missing
Indian Express – Prez Pranab Mukherjee promulgates ordinance on crime against women
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