This article is written by Krishna Gururaj Hallur, Ramaiah College of Law, BBA LL. B., 4th Year during his internship at LeDroit India.
Keywords: sexual offenses, criminal laws, legal reforms, the criminal justice system, rape, stalking, justice, amendment.
Abstract:
The Criminal Law (Amendment) Act, 2013, was enacted in response to the 2012 Delhi gang rape case, leading to crucial changes in the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act. This amendment introduced new offences such as acid attacks, stalking, and voyeurism, and expanded the definition of rape to ensure stronger protection for women. The Act increased penalties and provided a more comprehensive legal framework to address sexual offences. This article examines the key provisions, case laws, and the effectiveness of these amendments in addressing crimes against women in India.
INTRODUCTION:
The horrific Nirbhaya case of 2012 sparked widespread protests and led to the formation of the Justice Verma Committee, which recommended stringent legal reforms. The Criminal Law (Amendment) Act of 2013 was a direct result of these recommendations. It introduced new offences, expanded the definition of existing crimes, and ensured stricter punishment to deter crimes against women.
The Nirbhaya case refers to the brutal gang rape and subsequent death of a 23-year-old physiotherapy intern in Delhi on December 16, 2012. She was assaulted by six individuals on a moving bus, leading to severe injuries that resulted in her demise on December 29, 2012. This heinous crime ignited nationwide protests and intense discussions about women’s safety in India.
In response to the public outcry, the Indian government established the Justice Verma Committee to recommend legal reforms aimed at enhancing the protection of women. Based on the committee’s suggestions, the Criminal Law (Amendment) Act, 2013 was enacted. This legislation introduced significant changes to the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act, focusing on stricter punishments for sexual offenses and expanding the definitions of crimes against women.
THE FORMATION OF THE JUSTICE VERMA COMMITTEE
Following the incident, the Indian government formed a three-member judicial committee on December 22, 2012, led by Justice J.S. Verma, Justice Leila Seth, and Gopal Subramanium. The Committee was tasked with reviewing criminal laws and recommending stricter punishments and faster trials for sexual offences.
- The Committee submitted its report within 30 days after conducting extensive research and gathering public recommendations.
- Over 80,000 suggestions were received from across the globe, including inputs from legal experts, activists, and citizens.
- The Committee emphasized good governance, gender justice, and comprehensive legal reforms rather than merely imposing harsher penalties.
The report also rejected the death penalty for rapists, arguing that justice should not be equated with retribution but with effective legal and social reforms.
OBJECTIVES & KEY RECOMMENDATIONS
The 630-page report focused on a multidisciplinary approach to tackling sexual violence at all levels. It highlighted:
- Need for Police Reforms: Ensuring prompt registration of FIRs, sensitization of police personnel, and accountability in handling sexual violence cases.
- Comprehensive Legal Amendments: Expanding the definition of rape, introducing laws on stalking, voyeurism, and acid attacks, and strengthening punishment for public servants involved in sexual crimes.
- Faster Trials & Judicial Reforms: Setting up fast-track courts to expedite trials and improve conviction rates.
- Gender Justice & Awareness: Promoting women’s rights, education reforms, and electoral changes to address the root causes of gender-based violence.
- Elimination of Outdated Practices: Addressing the flaws in police administration and judicial delays that hinder women’s access to justice.
The Justice Verma Committee report laid the foundation for sweeping changes in India’s legal landscape. The Criminal Law (Amendment) Act, 2013, inspired by its recommendations, introduced landmark legal protections for women. However, the rising crime rates indicate that laws alone are not enough—their implementation, awareness, and enforcement remain critical challenges in ensuring women’s safety in India.
THE CRIMINAL LAW (AMENDMENT) ACT, 2013
The Criminal Law (Amendment) Act, 2013, enacted in response to the 2012 Delhi gang rape case, introduced several new offences and expanded definitions within the Indian Penal Code (IPC) to address crimes against women more effectively.
CHANGES MADE FOR THE PROTECTION OF WOMEN UNDER THE CRIMINAL (AMENDMENT) ACT, 2013
- INDIAN PENAL CODE, 1860
- Public Servant Disobeying Legal Directives (Section 166A)
Any public servant who fails to comply with legal directions or refuses to record information regarding a cognizable offence shall be subject to imprisonment for a minimum of six months, extendable to two years, along with a fine. - Punishment for Failing to Provide Medical Treatment (Section 166B)
A person in charge of a hospital, public or private, who violates the provisions of Section 375C of the Code of Criminal Procedure, 1973, may face imprisonment for up to one year. - Sexual Harassment (Section 354A)
Engaging in unwanted physical contact, demanding sexual favors, or displaying pornography against a woman’s consent constitutes sexual harassment, punishable by up to three years of imprisonment. Additionally, making sexually suggestive remarks can lead to imprisonment of up to one year. - Assault or Criminal Force with Intent to Disrobe (Section 354B)
Any individual who assaults or applies criminal force on a woman with the intention of disrobing her shall face a minimum imprisonment of three years, which may be extended to seven years, along with a fine. - Voyeurism (Section 354C)
Watching or capturing images of a woman engaged in a private act without her knowledge is an offence. A first-time offender may face imprisonment between one and three years, along with a fine. Repeat offenders may be imprisoned for three to seven years, along with a fine. - Stalking (section 354D)
Persistently following or attempting to contact a woman through electronic communication, despite clear rejection, is considered stalking.
Exceptions: Stalking is not an offence if:
- It is conducted for crime prevention or detection by an individual legally authorized by the state.
- It is carried out as per legal requirements or conditions.
- The act is reasonable and justified in the given circumstances.
- Rape (Section 375)
A person commits rape if he:
- Engages in non-consensual penetration of a woman’s vagina, mouth, urethra, or anus using his private part or any object.
- Forces a woman to engage in such acts with him or another person.
- The absence of physical resistance from the woman does not imply consent.
Exceptions:
- Medical procedures or interventions do not constitute rape.
- Sexual acts between a husband and wife (if the wife is above 15 years old) are not considered rape.
- Punishment for Rape (Section 376)
- Offenders shall be imprisoned for a minimum of seven years, which may be extended to life imprisonment, along with a fine.
- If the perpetrator is a public servant, police officer, member of the armed forces, jail or hospital staff, guardian, relative, or an individual in a position of authority, the punishment increases to a minimum of ten years, which may extend to life imprisonment, along with a fine.
- Punishment for Causing Death or a Persistent Vegetative State (Section 376A)
- If a rape results in the victim’s death or causes her to enter a persistent vegetative state, the perpetrator shall face a minimum imprisonment of twenty years, extendable to life imprisonment.
- Sexual Intercourse by a Husband During Separation (Section 376B)
- A husband who engages in sexual intercourse with his wife without her consent while they are living separately may face imprisonment of two to seven years, along with a fine.
- Sexual Intercourse by a Person in Authority (Section 376C)
- Any individual who misuses their position of authority to seduce or coerce a woman into sexual relations shall face imprisonment of five to ten years, along with a fine.
- Gang Rape (Section 376D)
- If multiple individuals act with a common intention to commit rape, each offender shall be held accountable and sentenced to a minimum of twenty years of imprisonment, extendable to life, along with a fine payable to the victim.
- Punishment for Repeat Offenders (Section 376E)
- Individuals previously convicted under Sections 376, 376A, or 376D and found guilty again shall face stricter punishment.
- CODE OF CRIMINAL PROCEDURE, 1973
- Information in Cognizable Cases (Section 154) and Examination of Witnesses by Police (Section 161)
- Amendments to these sections mandate that a woman police officer must record any information provided by a woman regarding an offence committed against her. Additionally, Section 154 states that if the victim is physically or mentally disabled, the police officer must record the information at her residence or a convenient location in the presence of an interpreter or a special educator. Furthermore, the information must be video-recorded, and the police officer is required to have the statement recorded before a Judicial Magistrate.
- Recording of Confessions and Statements (Section 164)
- When a criminal offence is reported, the Judicial Magistrate must immediately record the statement of the victim. If the victim is physically or mentally disabled, the Magistrate must seek assistance from an interpreter or a special educator, and the recording must be video-graphed. Additionally, the recorded statement is considered part of the evidence instead of requiring an examination-in-chief, allowing for cross-examination during the trial without the need for re-recording.
- Prosecution of Judges and Public Servants (Section 197)
This section provides that no prior sanction is required to prosecute a public servant accused of an offence.
- Evidence to Be Taken in the Presence of the Accused (Section 273)
- In cases of rape or sexual assault involving victims below the age of eighteen, courts must take measures to ensure that the accused does not directly confront the victim, while still upholding the accused’s right to cross-examination.
- Power to Postpone or Adjourn Proceedings (Section 309)
- Court proceedings should be conducted daily until all witnesses have been examined. If an adjournment is necessary, the reasons must be recorded. Additionally, for cases involving sexual offences, the trial must be concluded within two months from the date the charge sheet is filed.
- Treatment of Victims (Section 357C)
- All hospitals, whether public or private, are required to provide immediate medical treatment and first aid to victims of sexual offences free of cost. They must also report the incident to the police.
- INDIAN EVIDENCE ACT, 1872
- Evidence of Character or Previous Sexual Experience Not Relevant in Certain Cases (Section 53A)
- To prevent the victim from being subjected to character assassination in court, this section prohibits the use of evidence related to the victim’s character or past sexual experiences, as such information is deemed irrelevant during prosecution.
- Presumption as to the Absence of Consent in Certain Prosecutions for Rape (Section 114A)
- If it is established that sexual intercourse took place and the woman states that she did not consent, the court will presume that she did not give consent.
- Witness Unable to Communicate Verbally (Section 119)
- Victims who are unable to communicate verbally may present their evidence in any form that is understandable by the court. If written statements are used, they must be presented in open court, accompanied by signs. Such evidence will be treated as oral testimony. The court must also ensure that an interpreter or a special educator assists in recording the statement, and the process must be video-recorded.
- Nature of Questions to Be Asked in Cross-Examination (Section 146)
- During cross-examination, questions regarding the victim’s moral character or previous sexual experiences with any individual are not permissible if intended to prove consent.
These amendments marked a significant advancement in India’s legal framework, aiming to provide enhanced protection for women and ensure stricter punishments for offences against them.
KEY CHALLENGES IN IMPLEMENTATION
1. Low Conviction Rates & Gaps in Law Enforcement
One of the most significant concerns post-amendments is the low conviction rate in crimes against women. Despite stronger laws, conviction rates for rape remain below 30%, exposing severe gaps in implementation.
- Failure to Register FIRs: Cases like UP rape survivor suicide due to police refusal to file FIR highlight systemic failures in law enforcement.
- Insufficient Female Police Representation: The Act mandates that female police officers handle cases involving women. However, only 10.49% of the police force comprises women, far below the 33% recommended by the Ministry of Home Affairs. This lack of representation discourages victims from reporting crimes.
- Police Apathy & Corruption: Many cases face delays due to a lack of urgency in the investigation, mismanagement of evidence, and corruption in law enforcement.
2. Judicial Delays & Case Backlog
The judiciary plays a critical role in ensuring justice, but systemic inefficiencies have resulted in delays, case withdrawals, and hostile witnesses:
- Backlogged Cases: Indian courts suffer from an enormous pendency of cases, leading to delays in trials and the denial of timely justice.
- Lack of Witness Protection: Fear of intimidation leads to witnesses turning hostile, weakening the prosecution’s case.
- Shortage of Judges: A low judge-to-population ratio further contributes to delays, as courts struggle with an excessive caseload.
The failure to fast-track sexual offence cases, despite government initiatives, raises concerns about the effectiveness of the special courts set up for gender-based crimes.
3. Weak Forensic & Investigative Procedures
Forensic science plays a crucial role in modern criminal investigations. However, in India, its integration into sexual offence cases remains inadequate:
- Poor use of forensic evidence leads to weak cases in court.
- Lalita Kumari v. Government of Uttar Pradesh (2013) mandated the compulsory registration of FIRs, yet non-compliance remains rampant.
- Insufficient forensic training for police officers often results in improper handling of crime scenes and loss of crucial evidence.
4. Societal Barriers & Underreporting
Beyond legal loopholes, sociocultural factors significantly hinder justice for victims:
- Stigma & Fear of Retaliation: Many victims refrain from reporting due to fear of societal ostracization and retaliation from perpetrators.
- Inconsistent Judicial Interpretations: Although the definition of rape was expanded, courts have delivered inconsistent rulings, creating confusion in legal interpretations.
The Way Forward: Strengthening Implementation
To bridge the gap between legislation and enforcement, a multi-pronged approach is essential:
- Strengthening Law Enforcement
- Implement strict monitoring of police accountability for FIR registration and investigation.
- Increase female police representation to meet the 33% mandate for better victim support.
- Conduct sensitivity training for police officers handling sexual offence cases.
- Judicial Reforms & Speedy Trials
- Strengthen fast-track courts with adequate resources to ensure speedy trials.
- Address judge shortages to reduce case backlog.
- Implement comprehensive witness protection programs to ensure testimonies remain reliable.
- Enhancing Forensic Capabilities
- Increase forensic training for police and judiciary to improve evidence handling.
- Establish dedicated forensic labs for gender-based crimes to expedite analysis.
- Raising Awareness & Social Change
- Mass media campaigns should challenge rape myths and encourage victim-centered justice.
- Community policing initiatives can promote public cooperation in preventing crimes.
- Legal literacy programs should educate women about their rights under the Criminal Law (Amendment) Act, 2013.
REFERENCES
- ‘What is Nirbhaya case?’ (The Times of India, 18 December 2019) <https://m.timesofindia.com/india/what-is-nirbhaya-case/amp_articleshow/72868430.cms> accessed 11 September 2022
- 2 ‘Report of the Committee on AMENDMENTS TO CRIMINAL LAW’ (Association for Democratic Reforms, 23 January 2013) <https://adrindia.org/sites/default/files/Justice_Verma_Amendmenttocriminallaw_Jan2013.pdf> accessed 11 September 2022
- Indian Penal Code, 1860
- Ashish Mukherjee, ‘Rape ordinance: Govt. rejects JS Verma Panel’s recommendations on marital rape, review of AFSPA’ (NDTV, 2 February 2013) <https://www.ndtv.com/india-news/rape-law-ordinance-govt-rejecs-js-verma-panels-recommendations-on-marital-rape-review-of-afspa-512138> accessed 12 September 2022
- Rashme Sehgal, ‘Death penalty, no answer to heinous crimes such as Nirbhaya’ (The Hindu Business Line, 24 March 2020) <https://www.thehindubusinessline.com/opinion/death-penalty-no-answer-to-heinous-crimes-such-as-nirbhaya> accessed 12 September 2022
- Crime Against Women in India Up by 4% : NCRB Report 2023’ (News Click, 5 December 2023) <https://www.newsclick.in/crime-against-women-india-4-ncrb-report-2023> accessed 05 October 2024
- Dipankar Dey, ‘Mosaic of malevolence’ (Millennium Post, 09 December 2023) <https://www.millenniumpost.in/sundaypost/in-retrospect/mosaic-of-malevolence-543615> accessed 05 October 2024
- ‘Women Safety in India – Challenges and Way Forward – Explained Pointwise’ (Forum IAS, 16 August 2024) <https://forumias.com/blog/women-safety-in-india-significance-and-challenges-explained-pointwise/#:˜ : text=Increase%20in%20crimes%20against%20women,2021%20to%2066.4%20in%202022> accessed 06 October 2024
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- ‘UP records highest number of crimes against women among the 28 states last year : Report’ The Telegraph Online (New Delhi, 10 October 2024) <https://www.telegraphindia.com/india/bjp-ruled-uttar-pradesh-records-highest-number-of-crimes-against-women-among-the-28-states-last-year-report/cid/1984613> accessed 07 October 2024
- ‘UP cops refuse gang-rape plaint, women kills herself’ The Times of India (Lucknow, 22 August 2024) <https://timesofindia.indiatimes.com/city/lucknow/up-cops-refuse-gang-rape-plaint-woman-kills-herself/articleshow/112692017.cms> accessed 07 October 2024
- ‘India sees 88 rape cases a day; conviction rate below 30%’ The Times of India (New Delhi, 07 October 2020) <https://timesofindia.indiatimes.com/india/india-sees-88-rape-cases-a-day-but-conviction-rate-below-30/articleshow/78526440.cms> accessed 07 October 2024
- Archis Mohan, ‘Women in police : Bihar leads, Bengal one of the lowest among large states’ Business Standard (9 September 2024) <https://www.business-standard.com/economy/analysis/women-in-police-bihar-leads-bengal-one-of-the-lowest-among-large-states-124090900800_1.html> accessed 08 October 2024
- Ministry of Home Affairs, Police-Training, Modernisation and Reforms (Report No. 237, 2022) para 2
Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1
