International Journal of Law and Legal Jurisprudence Studies

Criminal Law Amendment Act,2013 Analysis –Suvir Raghuvansh ,Amity Law School,Noida ,BA L.L.B(H) (4TH YEAR )

 

Abstract 

Change in life style, living standards, disparity in economic growth due to urbanization and changes in social ethos and lack of concern for moral values contribute to a violent approach and tendencies towards women, which has resulted in an increase in crime against women  The barbarous Rape Incident that occurred in Delhi was result of this attitude of our legislature. Further, the protest in the Delhi after the barbarous Rape Incident indicated the whole of India, the enormity as well as the seriousness for an immediate reform in Rape Laws. In the backdrop of this incident, the Central Government setup Justice Verma Committee headed by former CJI of India, J.S. Verma to make recommendation on the inefficiency of Rape Laws and other laws for Protection of Women in IPC because of great hue and cry by the Indians. Not only this, the President of India promulgated The Criminal Law (Amendment) Ordinance,2013 (hereinafter refer as Ordinance,2013), which amended several laws related to Protection of Woman, as an immediate measure to calm down the anger of the India. Since, the Ordinance,2013 was full of anomalies, which where prima facie  as it was hurriedly enacted.

 

The Ordinance has enhanced the term of imprisonment prescribed for the offence which falls under the category of assault or criminal force to woman with intent to outrage her modesty (section 354).  While earlier the accused was liable to imprisonment of a term which could extend to two years or fine or both, now, the same offence is punishable with a term of one year which may extend up to five years and shall also be liable to fine.

This reflects substantial change in the outlook towards the crime and a stronger determination to deter criminals

INTRODUCTION


T. 1.1.: Crime Clock of Atrocities Committed Against Woman
[3].hange in life style, living standards, disparity in economic growth due to urbanization and changes in social ethos and lack of concern for moral values contribute to a violent approach and tendencies towards women, which has resulted in an increase in crime against women[2] but, as usual, our legislatures were least concerned when it comes to bring appropriate legislation for protection of women. Crime against women and their exploitation has multiplied many folds in the recent years because of the inefficiency in implementation of law. This is evident from the two tables(T.1.1. and T.1.2.) below:-

S No. Offences and Crimes against Women Rate of Crime
Rape 29 Minutes
 Sexual Harassment 53 Minutes
Molestation 15 Minutes
Cruelty by husband or other relatives 09 Minutes
Dowry Deaths 77 Minutes

T.1.2. Statistics of National Crime Records Bureau on Crime Against Woman

S. No Year Crime cases against Women
2005-2006 1,55,553
2006-2007 1,64,765
2007-2008 1,85,312
2008-2009 1,95,856
2009-2010 2,03,804
2010-2011 2,28,650

The barbarous Rape Incident that occurred in Delhi[4] was result of this attitude of our legislature. Further, the protest in the Delhi after the barbarous Rape Incident indicated the whole of India, the enormity as well as the seriousness for an immediate reform in Rape Laws. In the backdrop of this incident, the Central Government setup Justice Verma Committee headed by former CJI of India, J.S. Verma to make recommendation on the inefficiency of Rape Laws and other laws for Protection of Women in IPC because of great hue and cry by the Indians. Not only this, the President of India promulgated The Criminal Law (Amendment) Ordinance,2013 (hereinafter refer as Ordinance,2013), which amended several laws related to Protection of Woman, as an immediate measure to calm down the anger of the India. Since, the Ordinance,2013 was full of anomalies, which where prima facie  as it was hurriedly enacted. The Cabinet headed by P. Chidambaram with his colleagues debated the Criminal Law Ordinance,2013[5].On 19 March 2013, it was passed by Lok Sabha. On 21st March, it was a surprise for everyone that the law which touches the life and soul of every individual of this country was passed by Rajya Sabha in just one day discussion[6].

The Criminal Law Amendment Act,2013(hereinafter refer as Amendment Act,2013), for the first time, has created many new offences for  protection of woman against acid attacks(Sec. 326A and 326B), sexual harassment (Sec. 345A),voyeurism (Sec. 345C) and stalking(Sec. 345D) and inter alia , enlarged the definition of rape(Sec. 375)  in IPC.

 

[1]

The Ordinance has enhanced the term of imprisonment prescribed for the offence which falls under the category of assault or criminal force to woman with intent to outrage her modesty (section 354).  While earlier the accused was liable to imprisonment of a term which could extend to two years or fine or both, now, the same offence is punishable with a term of one year which may extend up to five years and shall also be liable to fine.

This reflects substantial change in the outlook towards the crime and a stronger determination to deter criminals

.

 Insertion of section 354 A, 354 B, 354C and 354D in the Indian Penal Code-

 

The ordinance mandates insertion of  new sections after the already existing section 354 which deals with assault or criminal force to woman with intent to outrage her modesty.

Section 354A deals with the definition of “sexual harassment” which is very broadly defined and criminalizes acts like forcibly showing pornography, physical contact and advances involving unwelcome and explicit sexual overtures, demanding or requesting sexual favours, any other unwelcome physical,  verbal or non-verbal conduct of sexual nature. This section further deals with the punishment to be awarded for the offence depending upon the act in question.

While demanding or requesting sexual favours and physical contact or advances which involve unwelcome and explicit sexual overtures is punishable with rigorous imprisonment of a term which may extend to five years or with fine or with both, the other three acts enumerated above attract a lesser term which may extend to one year or fine or both.

 

Disrobing a Woman (Sec 354B)

Parliament made an amendment to IPC, adding Sec 354B, to create a new offence namely, ‘Assault or use of criminal force to woman with intent to disrobe’. The offence was made gender specific in backdrop of Delhi Bus Gang Rape[10]. Hailed by many legal scholars there is also a different story which remained unnoticed. The offence of disrobing should also be extended to men because unfortunately the young boy, who was with the girl and sole eye witness of the  incident, was also assaulted and disrobed[11] and as far as the victims are considered it should be made gender-neutral. The Sec. 355 has not sufficed in protecting male victims. The male accompanying the rape victim in the above mentioned event also suffered tortures and inhumane treatment at the hand of perpetrators.

Voyeurism (Sec 354C)

Voyeurism has surfaced in recent times with the advent of internet and social media sites. The Parliament by enacting Amendment Bill, 2013 has made it punishable under Sec 354C of IPC. Indian Parliament made Voyeurism gender specific, meaning that only a male could commit such a crime against a woman. This is very injudicious as there are often cases where women are also involved in commission of offence. Apart from this while dealing with offence of Voyeurism in Sec 354C, there is another anomaly related to its’ applicability. The section on voyeurism starts with ‘Any Man’, making it clear that only man can be perpetrators, followed by the phrase ‘by any other person at behest of the perpetrators’raising series of doubts.  The doubt as to whether the phrase ‘by any other person’ should be read in the light of ‘any man’, meaning thereby that second person could only be a man, or in the light of Sec 11 which define ‘Person’. The court, most likely, would adopt the latter approach which will highlight another lacuna in Amendment Act, 2013. A woman as perpetrator will not be liable under this offence however a woman at the behest of actual perpetrator would be liable. This is approach is not only unjust but also unreasonable.

[2]

 

Section 354 D criminalizes the act of stalking which interferes with the mental peace of a person or causes distress, fear of violence or alarm. The same is punishable with a minimum imprisonment term of one year which may extend to three years and also liable with fine. However, the offence is subject to certain exceptions like where a person can show that the acts done were in pursuance of some law, amounted to reasonable conduct or in order to prevention of some crime.

  1.  Further section 375 has been replaced with a newly worded section where the word “rape” has been substituted by “sexual assault”.  It has two implications, one,  that under the changed law the offence of sexual assault has been made gender neutral and second that the new term will take under its ambit many more acts of sexual nature. Under the old provision read with case law, a very strict definition of rape, which required certain degree of penetration of the female genitalia, was followed. However, under the substituted provision the law stands substantially changed. It provides for the following:

i) Penetration of penis into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;

ii) Insertion of any object or any body part, not being penis, into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;

iii) manipulation of any body part so as to cause penetration of vagina, urethra, mouth or anus or any body part of such person or makes the person to do so with him or any other person;

iv) Application of mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person;

v) lastly, touching the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person.

As can be observed the new section has criminalized forcing a person to commit a sexual act on oneself as well as any other person. This is a very substantial change.

Also consent by any person below 18 years of age is considered to be no consent. The age bar earlier was 16 years.

 

 

 

Also added is the explanation 3 which says that “a person 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”

Any of the acts enumerated above will constitute the offence of sexual assault and be punishable with an imprisonment term not less than seven years but may extend to life imprisonment and shall also be liable to fine. Also aggravated sexual assault is liable for imprisonment of a term not less than 10 years but may extend to life imprisonment and also fine.

The Ordinance has further amended the law to provide for the following:

1) Where the commission of sexual assault or aggravated sexual assault causes death of the victim or leaves the victim in a persistent vegetative state the punishment is prescribed to be rigorous imprisonment of a term not less than twenty years but may extend to life imprisonment (meaning the whole of the remainder natural life of the accused) or even with death.

2) Further section 376 B provides that whoever commits sexual assault on his own wife, who is living separately under a decree of separation or under any custom or usage, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

3) Also the substituted section 376 C provides that:

 

Whoever,––

(a) being in a position of authority or in a fiduciary relationship; or 

(b) a public servant; or

(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time  being in force, or a women’s or children’s institution; or

(d) being on the management of a hospital or being on the staff of a hospital, and abuses such position or fiduciary relationship to induce or seduce any person either in the first mentioned person’s custody or under the first mentioned person’s charge or present in the premises and has sexual intercourse with that person, such sexual intercourse not amounting to the offence of sexual assault, shall be punished with  rigorous imprisonment of either description for a term which shall not  be less than five years but which may extend to ten years, and shall also be liable to fine.”

 This provision reinforces the terms of new section 376(2) and perhaps is added to highlight the gravity of situation where the perpetrator is a person in a position of trust and authority.

4) The provision added under section 376D provides “Where a person  is sexually  assaulted  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 sexual assault, regardless of gender   and  shall be punished with  rigorous imprisonment  for a term  which  shall  not be  less  than twenty  years, but  which   may extend to  life and shall pay compensation to the victim which shall be reasonable  to meet  the medical expenses and rehabilitation of the victim”

This provision would make liable even a female person for the offence of sexual assault if she is a part of the group of persons committing the act.

5) Further section 376 E has been added and section 509 amended to stand as follows:

376E. Whoever has been previously convicted of an offence punishable under section 376  or  section  376A or  section  376C or section 376D and  is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for  life, which shall mean the remainder of that person’s natural life or with death.’.

Also,

“In section 509 of the Penal Code, for the words “shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both”, the words “shall be punished with simple imprisonment for a term which may extend to three years and shall also be liable to fine” shall be substituted.”

  The Ordinance has further amended sections of Cr PC to provide that whenever an offence the above discussed provisions (i.e. sexual offences) is reported the statement of the victim if a woman will be taken by a woman police officer and legal assistance be provided to her.

It is further provided that where the victim is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of a special educator or an interpreter, as the case may be;

(b)  the recording of such information may be videographed.

(c) the  police    officer   shall  get the statement of  the person recorded by  a  Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.”

The changes in law are a welcome change however, it remains to be seen how much deterrent effect it will have on the society.

 

 

 

 

 

 

 

Compensation u/s 357 Of Cr.PC

This section has been provided in Cr.P.C. , wherein the Court levies fine over the convicts, it can also grant certain portion of fine or full compensation to the victim. As far as the new law is concerned:

  1. State government to provide for compensation to the victim, besides the compensation being given by Court through fine against the convict.
  2. b.      The hospitals (government/private) shall provide immediate assistance to the victim in cases of rape, free of cost and inform the police about the offence.

However we need to understand that this form of compensation is only limited to Gang Rape and Acid attack cases. The other rape cases have been neglected without any justified rationale at the mercy of the court to provide fine. Fine levied by the Courts is discretionary and as per latest judgement of Supreme Court, the right of victim is only limited to the extent that Courts may discuss the question of compensation to the victim in form of fine. If court is not satisfied to grant fine they have to give reasons in recording but in no way they are bound to give compensation from the Fines.

DEATH PENALTY IN RAPE CASES

After the Delhi Gang Rape Incident, there was hue and cry for including death penalty as a punishment in Sec 376 but inspite of this neither Justice Verma Committee recommended death penalty in offence of rape nor it was incorporated in the Ordinance Act,2013 and thereafter in Amendment Act,2013. The Parliament did not include ‘death penalty’ under Sec 376 because the legislature were of the opinion that it should be awarded only in cases of ‘rarest of rare’ laid down in case of Bachan Singh v. State Of Punjab[7] when the alternative option is foreclosed. In the case of Mohinder Singh v. State of Punjab[8]the Court did not punished the accused with death penalty, inspite his act being heinous in nature, because there was “potential of convict to rehabilitate and reform”. The Court further was of the opinion that the alternative punishment of life imprisonment would not meet the end of justice, therefore following the case of Swamy Shraddananda v. State Of Karnataka[9]the court awarded him imprisonment till the last breath of life so that the ends of justice could be met.

[3]

 

 

 

CRIMES AGAINST WOMAN: VIOLATION OF 21 & 19

There is a need for the more proper and reasonable laws to deal with the crimes against women. These crimes themselves violate the very basic fundamental rights guaranteed to a woman under the Constitution. These crimes hit at the very base of our Constitution, as India as State fails to guarantee these rights.

Art. 21 talks about ‘Right to Life and Liberty’. It has been established by various case-laws from Habeas Corpus case[10] to Maneka Gandhi case[11]that liberty is very important feature towards life of an individual. ‘Life does not mean a mere animal existence[12]’ and as such this Article makes it obligatory for the State to provide a better and more secure society to our Women. A woman who is always under a threat for her life and physical body, then this law would become meaningless to her. Again the threats of the present society are violative of rights guaranteed under Article 19(1)(f), which is free movement through the territory of the country. It would not be wrong to say that a woman is not safe even in walking on street in broad daylight, the very law enshrined under this article is made useless.

The life of Indian woman in such a threatening society would be safer only in a cage to protect her from perpetrators, thus giving her an animal existence. We need to have stricter laws to ensure full liberty to women.

 

Conclusion

Privacy, crime, and safety of women are intricately linked in any legal system. An essential part of the security of citizens is the safety of their privacy and personal information. If any legal system does not protect the privacy — both of body and of information — of its people, there will always be insecurity in such a system. With the recent debates on women’s safety, several crucial privacy and security issues have been raised, such as the criminalization of voyeurism and stalking, which is a huge boost for privacy rights of citizens in India, and it is hopeful that the government will continue the trend of considering privacy issues along when addressing security concerns for the state.

 

 

 

 

Update to the Criminal Law Amendment Bill 2013

 

The Criminal Law (Amendment) Bill, 2013, was made into law on April 3, 2013. Several provisions under the Act differ from the provisions in the ordinance. Under the Act, unlike in the Ordinance, the terms or 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.

Hence, from the confusing language of the provision, it would seem that the offence of stalking related to monitoring of activities of a woman is restricted to the monitoring of online communications, and not physical acts. The caveat of such monitoring having to cause serious alarm, distress or interference with the mental peace of the victim is also removed. The removal of unwaranted intrusion through watching or spying of a person, and indeed, the removal of any subjective test to determine the effect of stalking is a departure from stalking provisions accross the world, and is a setback for individual privacy, because stalking per se is a privacy offence, relating not only to the physical interference but also the mental harassment it causes to the victims.
The provision has also increased the puinishment for the crime in the first offence to upto three years, and subsequently to upto five years. Further, the provisions sought to be included within Section 53A and Section 376 of the Indian Evidence Act are now included in Section 146 of the Act.

 

 

 

[1] (1)  Sorabjee,Solo J. and Arvind P. Datar, Nani Palkiwala, The Courtroom Genius (4th, LexisNexis Butterworth Wadhwa Nagpur, Gurgoan 2012) p.g. 27

(2)  Infra note 3

(3) K.D. Gaur, Textbook on The Indian Penal Code (4th, Universal Law Publishing Co. Pvt. Ltd, Delhi 2011) p.g. 637

(4) SHUBOMOY SIKDAR, ‘Gang-raped in moving bus, girl fights for life in Delhi hospital’ (thehindu.com 2012) <http://www.thehindu.com/news/national/gangraped-in-moving-bus-girl-fights-for-life-in-delhi-hospital/article4208833.ece> accessed 20 may 2013

[2] (5) Id note 5

(6) ASHOK SHARMA, ‘Delhi Gang-Rape Victim’s Boyfriend Speaks Out’ (huffingtonpost.com 2013) <http://www.huffingtonpost.com/2013/01/04/delhi-gang-rape-victim-boyfriend_n_2410207.html> accessed 20 may 2013

[3] (7) Bachan Singh vs State Of Punjab, AIR 1980 SC 898, 1980 CriLJ 636.

(8)  Mohinder Singh v. State Of Punjab,(1980) 2 SCC 684

(9) Swamy Shraddananda v. State Of Karnataka, (2008) 13 SCC 767

(10) ADM Jabalpur v. Shiv Kant Shukla, 1976 AIR 1207

(11) Maneka Gandhi v. Union of India, 978 AIR 597

(12) Munn v. Illinois, 94 U.S. 113 (1877)

 

 

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