Criminal Law (Amendment) Act, 2018 & Woman Safety

November 15, 2021

Introduction

The Criminal Law Amendment Act, 2018 is an outcome of a barbaric incident that shook the conscience of India. The demand for making anti-rape laws more stringent had started developing due to various child rape incidents. The demand for Amendment to Criminal Act was triggered after the heinous incidents of the Kathua rape case and the Unnao rape case.

The brief facts of Kathua rape case are- An 8 years old girl was raped in a district Kathua, of Jammu and Kashmir. The minor girl was kept in a Shrine for several days by some people who raped her continuously and later they murdered her brutally.

Another case that shook the nation was the Unnao rape case, in this case, a teenage girl accused an MLA of raping her in the year 2017. The girl attempted to set herself on fire in front of the MLA’s residence in Unnao, northern Uttar Pradesh.

Salient features of Criminal Amendment Act, 2018

Stipulation of a minimum jail term for 20 years that may go to life imprisonment or death sentence, for committing the offence of rape of a girl below 12 years.
Perpetrators who are involved in the gang rape of a girl below the age of 12 years will get life imprisonment or a death sentence.
Section 376(1) of IPC was amended whereby the term of punishment for perpetrators was enhanced from 7 years to 10 years.
An additional provision for the fine to be payable to the victim was made to Section 376 of IPC.
Section 439 of CrPC was amended to make it imperative for the Courts in cases of grant of bail to an accused under S. 376(3), S.376 AB , S. 376DA, or S.376 DB of the IPC to give notice of the application for bail to the Public Prosecutor.
If the offense of rape, is committed by the Police Officer, irrespective of the place shall be punished for rigorous imprisonment which is not less than 10 years.
The amendment provides that in case of rape offenses, the police are bound to complete the investigation within 2 months after lodging of FIR.
An appeal shall be disposed of within 6 months in case of the offense of rape.
It is further provided that the accused shall be convicted for committing the offence of gang rape of a woman below 16 years of age with rigorous imprisonment for life and liable for fine.
Accused shall be convicted for committing gang rape of women, who is under 12 years with rigorous imprisonment for life and with fine or with the death penalty.

Enactment of Criminal Law Amendment Act, 2018

The Indian Penal Code, 1860
The Code of Criminal Procedure, 1973
The Protection of Children from Sexual Offences Act, 2012
The Evidence Act, 1872

The Indian Penal Code, 1860

Section 166A- It deals with public servants disobeying directions under the law and has three clauses, and clause (c), is substituted with Section 376AB, 376B, 376C, 376D, 376DA, and 376DB of IPC.

Section 228A- It deals with disclosure of the identity of the victim of certain offenses, and sub-section 1 of this Section was substituted with Section(s) 376AB, 376B, 376C, 376D, 376DA, and 376DB of IPC.

Section 376 of IPC deals with three categories of punishment for rape, apart from rape of women by police officers, public servants, members of the armed forces, etc. Section 376(1) of IPC provides punishment for committing the offense of rape of a woman that shall be for a minimum of ten years rigorous imprisonment up to imprisonment for life.

Hence, the amendment enhanced the quantum of punishment from a minimum of seven years to a minimum of ten years. The first time after the said amendment, the provision of awarding the death penalty to the accused in rare of rarest for committing the offense of rape was inserted.

Section 376(3) of IPC was amended whereby the punishment for rape on a woman below 16 years of age has been added by the amendment. Punishment shall be rigorous imprisonment for 20 years minimum which may extend to life imprisonment.

Section 376AB of IPC- Punishment for rape on a woman under twelve years of age has also been added by the amendment. The punishment in such is provided with a minimum of twenty years of rigorous imprisonment which may extend to imprisonment for life. The offender in such cases can also be punished with the death penalty.

Section(s) 376DA and 376DB of the IPC have been inserted by the amendment that provides punishment for gang rape on a woman below the age of sixteen years and twelve years respectively. Clause (i) of Section 376(2) has been omitted.

Code of Criminal Procedure, 1973

Section 173- There is an amendment in Section 173(1A), as per the amendment the investigation about the rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station “an offense under section 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E of the Indian Penal Code shall be completed within 2 months”.

Section 374- Sub-section (4) was inserted to Section 374 of CrPC which provides when an appeal has been filed against a sentence passed under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB or Section 376E of IPC, the appeal shall be disposed within 6 months from the date of filing of such appeal.

Section 377- In Section 377 of the Code of Criminal Procedure, after sub-section (2), a new sub-section was inserted i.e. sub-section (3) and read as when an appeal has been filed against a sentence passed under Section(s) 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB or Section 376E of the Indian Penal Code the appeal shall be disposed of within 6 months from the date of filing the appeal.

Section 438- The accused shall not be granted anticipatory bail under Section 438 of CrPC if he has committed the offense of rape on a woman below sixteen years of age. Speedy trial and investigation must be done in heinous offenses. It further provides that investigation shall be completed within 2 months; appeal in rape cases has to be disposed of within six months.

Section 439- Amendments were made to Section 439 CrPC- a proviso has been inserted that the High Court or the Session Court has to give notice to the public prosecutor within 15 days of which it receives the bail application of an accused of raping a girl below the age of 16 years. A sub-section was inserted to Section 439 of the Criminal Code that makes the presence of an informant or a person authorized by him mandatory during the hearing of bail application of the accused in such cases.

Protection of Children from Sexual Offences Act [POCSO]

Section 42 of the POCSO Act deals with an alternative punishment and accordingly Section(s) 376AB, 376DA, and 376DB of the Indian Penal Code was amended.

The Act seeks to protect children from offenses such as sexual assault, sexual harassment, and pornography. This Act was amended recently in 2019 where the death penalty was introduced for aggravated penetrative sexual assault in Section 6 of the Principal Act and the minimum punishment was modified to 20 years of rigorous imprisonment.

In the case of Ravi v. the State of Maharashtra, [Criminal Appeal Nos. 1488-1489 of 2018]- The Apex Court considered the heinous nature of the rape and murder of a girl of  2 years, the Court gave the death penalty to the accused giving a retrospective effect to the said amendment. It was stated that criminals cannot be reformed despite best efforts and would be a threat to the security and safety of society whenever released. It would adhere to the legislative policy in the wake of increasing cases of sexual abuse and exploitation of children of tender age.

Evidence Act, 1872

Criminal Amendment Act of 2018 has amended Section(s) 53A and Section 146 of the Evidence Act to make the provision in consonance with the amendments made to other Acts.

Criminal Amendment Act and women safety in public places

Every woman has a basic right to have free access to public space without any violence. India has so many Acts which specifically focus on women still the greatest challenge relates to the alarming threat to women’s safety and freedom of movement in public spaces. A woman feels unsafe to go out alone, travel outside the city, and walking on streets at late night. Crimes against women are increasing rapidly majorly in metro cities such as Mumbai, Delhi, and Bengaluru, etc.

Various Acts for women to ensure their safety

The Ministry of Women and Child Development has been administering various special laws relating to women, some of them are mentioned below-

Dowry Prohibition Act, 1961;
Indecent Representation of Women (Prohibition) Act, 1986;
Protection of Child Rights Act, 2005;
Protection of Women from Domestic Violence Act, 2005
Prohibition of Child Marriage Act, 2006;
Protection of Children from Sexual Offences Act, 2012;
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013; etc.

The criminal Amendment Act has introduced many provisions to the Act which provides ‘longer jail terms’ or ‘capital punishment’ and the objective to insert these provisions is to enhance woman safety and security in public, although for sure such law may inculcate a sense of fear among the culprits. Criminal Acts endeavors punishable offense for those police officers who fail to register First Information Report (FIR).

Criminal Act also provides penalties for various abhorrent forms of offences that include stalking, touching, sexually colored remarks, voyeurism, etc. The Act provides strict punishment to the culprits by awarding them a minimum punishment of ten years and a reasonable fine to meet the medical expenses of the victim. The Criminal Law (Amendment) Act, 2018 was enacted to prescribe even more stringent penal provisions including the death penalty for rape of a girl below the age of 12 years. The Act also inter-alia mandates completion of investigation and trials within 2 months each.

Criminal Amendment of 2018 and its impact

The Criminal Laws have been amended time and again to make the laws go in consonance with changing scenarios but the focus should be on taking steps to increase the conviction rate. If we see the datasheet of offence then in 2016, a total of 38,947 cases of rape were reported in India, and out of this, the Courts completed a trial of only 18,552 rape cases. The conviction rate was very low and only 25.5% accused were convicted. If we take a look at child rape cases in India then out of 6,626 cases whose trial was completed, 4,757 accused were acquitted which means a conviction rate of only 28.2%.

Successful implementation of criminal law provisions can be witnessed in the State of Madhya Pradesh; the State has completed the investigation of rape cases within the time frame of 60 days in 72% of the cases. In Bhopal, the arrest was done within 12 hours and the investigation was completed in 72 hours which also included recording the statement of 25 witnesses and the accused were awarded the death penalty.

Government initiatives

The Government has also taken several initiatives for the safety of women and girls, to facilitate the States; the Government has launched an online analytic tool for police on 19^th February 2019 that is known as the “Investigation Tracking System for Sexual Offences”. It aims at monitoring and tracking the time-bound investigation in offenses related to sexual assault. On 20^th September 2018, the Government has launched the “National Database on Sexual Offenders” (NDSO) to facilitate the investigation and tracking of sexual offenders across India.

An emergency number i.e. 112 was provided which was based on computer-aided dispatch of field resources to the location of distress has been operationalized in 20 States and Union Territories. On 20^th September 2018, a cyber-crime portal was also launched for people to report obscene online content.

Conclusion

Criminal Law (Amendment) Act, 2018 has brought many significant changes in the criminal law of India. The amendment to the Indian Penal Code/ Criminal Procedure Code/ Evidence Act/ POCSO Act was brought with an objective to make anti-rape laws more stringent. Amendments were brought related to speedy trial and reduction in the time frame of investigation and appeal. Criminal Law amendments need to be supplemented with other changes in the criminal justice system for overall effective results.

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November 15, 2021