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TABLE OF CONTENTS
Sl. No.
Contents
Page
Acknowledgement
ii
Declaration
iii
Guide Certificate
iv
Preface
List of Abbreviations
vi
Introduction
vii
13
viii
14
ix
15
Legislative Analysis
19
xi
20
xii
25
xiii
29
xiv
35
xv
38
Ordinance 2013
xvi
39
Laws
xvii
40
xviii
41
xix
42
xx
49
xxi
Judicial Analysis
54
xxii
57
xxiii
59
xxiv
61
xxv
62
xxvi
66
xxvii
Bibliography
70
ACKNOWLEDGEMENT
I owe a great many thanks, to a great many people who have helped and have
supported me throughout the making of this Project Work. I would like to show my greatest
appreciation to Mr. Chinmaya Kumar Mohapatra, Asst. Professor, SNIL & the Guide-in3
charge. I cant say thank you enough for his tremendous help and support. My deepest
gratitude to Prof. (Dr) Jayadev Pati, Dean SNIL, for guiding me and correcting various
documents of mine with proper attention and care. He has taken pain to go through the
project and make necessary correction as and when needed.
I would also like to express my thanks and gratitude to the Asst. Prof Mrs.
Madhubrata Mohanty, Faculty, SNIL for extending her support and guidance without
which the completion of this Project Work would have been a more difficult task.
My deep senses of gratitude to Asst. Prof Amruta Das, Asst. Prof Amrita Mishra,
Members of Faculty, SNIL and Mr. Hiranmaya Nanda, Research Scholar, SNIL for their
kind support and guidance in the framing of the materials for this Project Work. Thanks and
appreciation to the helpful people at SOA NATIONAL INSTITUTE OF LAW, for their
support. I would also like to thank my friends without whom this Project work would have
been a distant reality. I also extend my heartfelt thanks to my family and well wishers.
I hope that this research project will prove to be a breeding ground for the next
generation of students and will guide them in every possible way. My special thanks go to
the Almighty without whom anything is next to impossible.
Thank you!!!
ABHISHEK CHOUDHARY
5 years Integrated B. Sc LL.B (VIth Semester)
Reg. No. 1141844003
SOA National Institute of Law (SNIL)
SOA University, Odisha, India
DECLARATION
I certify that the Project Work on the topic An Analytical Study of Laws
Relating to Sexual Offences in India for the Academic Session 2013-14 has
4
been prepared by me under the guidance of Mr. Chinmaya Kumar Mohapatra, Asst.
Professor, SNIL & the Guide-in-charge and I declare that the same has not been submitted
for evaluation elsewhere.
ABHISHEK CHOUDHARY
5 years Integrated B. Sc LL.B (VIth Semester)
Reg. No. 1141844003
SOA National Institute of Law (SNIL)
SOA University, Odisha, India
GUIDE CERTIFICATE
This is to certify that Mr. Abhishek Choudhary of BSc LLB course has
successfully completed his VIth Semester Research Project titled An Analytical Study
as provided by the
Guides Signature
Mr. Chinmaya Kumar Mohapatra,
Asst. Professor, Law
SOA National Institute of Law (SNIL)
SOA University, Odisha, India
PREFACE
We legislate first, and think afterwards;
complexity is heaped upon complexity and confusion becomes worse confounded
LIST OF ABBREVIATIONS
Paragraph or paragraphs
7
p.
Page
v.
versus
AIR
Art.
Article
Doc.
Document
e.g.
exempli gratia
Ibid
Ibidem
GOI
Government of India
Ltd
Limited
Mad.
Madras
No.
Number
Ors.
Others
p./ pp.
Page/ pages
para.
Paragraph
PC
Privy Council
SCC
SC
Supreme Court
FIR
IPC
CrPC
IEA
POSCO
S.
Section
w.e.f.
w.r.t.
with respect to
AFSPA
Vol.
Volume
SC
Supreme Court
U.S
United States
All
All L.J
Bom
Cal
Del
Mad
~Chapter-1~
INTRODUCTION
The Criminal Law (Amendment) Act, 2013, was introduced w.e.f. 03/02/2013 to
amend the Indian Penal Code, 1860, Indian Evidence Act, 1872, and the Code of
Criminal Procedure, 1973. By the ordinance S. 375, S. 376, S. 376A, S. 376B, S. 376C
and S. 376D of the Indian Penal Code have been substituted by new sections. It has also
been clarified that in cases of S. 375 the lack of physical resistance is immaterial for
constituting an offence.
As the Criminal Law (Amendment) Bill, 2013 made its winged way through
Parliament on 19 March 2013; every Indian applauded this as a loud, clear and deterrent
signal. The Act clearly signaled that the, Indian society would no longer tolerate the 'errant
behavior' that shook us on December 16, 2012.
The Act encompasses features that provide stringent punishment for crimes against
women such as rape, acid attacks, voyeurism and stalking. The punishments range from life
imprisonment to death penalty for the repeated offenders. Of course, some aspects of the new
law are positive in broadening the defined ambit of crimes against women and intensifying
the punishment for such crimes. For the first time, acid attacks that cause harm to the victim
will fetch the victimizer an imprisonment for term of minimum 10 years, which is extendable
to life. Repeated stalking, which often precedes more aggravated sexual crimes, has also
been designated as a specific and non-bailable offence.
Taking a serious note of the inadequacy of the law relating to sexual offences
especially the offence of Rape manifested in a number of judgments of the apex Court and
its failure to safeguard the rights of the innocent victims against the heinous crime against
humanity and public criticism, the Parliament of India enacted the Criminal Law
(Amendment)
Act,
2013.
On
the
fateful
night
of
16th
December
2012
female physiotherapy intern was beaten mercilessly and brutally gang raped in the capital
city of Delhi. The brave girl died from her injuries thirteen days later, despite receiving finest
medical treatment in India and Singapore. The heinousness of the crime can be assumed
merely from the fact that the incident not only generated national coverage but also has
attracted international attention and was condemned not only by the United Nations Entity
10
for Gender Equality and the Empowerment of Women, who called on the Government of
India and the Government of Delhi "to do everything in their power to take up radical
reforms, ensure justice and reach out with robust public services to make womens lives more
safe and secure". As a consequence, the nation has witnessed major public protests not only
in Delhi, where thousands of protesters clashed with security forces, but the same has been
observed in major cities throughout the country. The horrific gang-rape and the subsequent
murder of Nirbyaya (fearless) in December 2012 impelled the Government of India to pass
the Criminal Law (Amendment) Act, 2013.
BACKGROUND
Against the backdrop of the nation-wide outrage over the one of the most tragic,
brutal, diabolical, grotesque, revolting, heinous, and the inhuman gang-rape, commonly
known as Nirbhaya- case incident of December 16, 2012, impelled the Parliamentarian of
the country to drive the issues of violence against women to the core-stage of political
discourse. As a result of which, on December 22, 2012, the central government appointed a
three-member judicial committee famously known as Justice Verma Committee headed
by the Former Chief Justice of India, Justice J.S. Verma, Justice Leila Seth and Gopal
Subramanium. The key objective of the Commission was to review for possible
amendments to the criminal law especially the penal laws and suggest measures for speedy
trials for cases involving sexual offences and harsher penalties for vicious offences related to
violence against women. Taking further cognizance of the strident storm of public protests in
general and a tribute to Nirbhaya in particular, on January 23, 2013, the commission
submitted its recommendations by identifying lack of good governance as the principle
cause of violence against women. The commission goes on to criticise the government, the
abysmal and old-fashioned police system alongside public apathy in tackling violence
against women, and thereby, recommends dramatic transformation in the legislations. The
recommendations are based on more than 70,000 suggestions received from various
stakeholders, social activists and public comprising eminent jurists, legal professionals,
NGOs, womens groups and civil society through varied methods viz., emails, posts and fax.
A 631-page report consisting of 14 chapters include recommendations on laws related to
11
rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims,
police, electoral and educational reforms. Subsequently, Parliament replaced the promulgated
Ordinance, which lapsed on April 04, 2013. However, as per the Gazette Notification New
Delhi, Tuesday, April2, 2013, the word bill has been replaced by the word Act.
Theres also the need of effective control of the subordinate judiciary by the high
courts.
No delay should be there in imparting the necessary medical aid to the victims, even
in case of the private practitioners.
The general laws which were applicable to detention of women in the regular hours
need to be followed sternly.
There was a need of stringent measures for ensuring dignity as well as security of the
women, especially in the conflict areas.
Violation of equality of women should be considered constitutional violation.
There was a need for the separate Bill of Rights for women that will make sure that
women would have their own rights for having sexual autonomy.
Registration of marriages must be made compulsory, as it will eradicate the
possibility of demand for dowry.
Theres a need for amendment of Criminal law amendment bill 2012.
Journey of women in public transport must be made safer.
There was a need of special procedures for protecting the people with disabilities
from the crimes such as rape.
Juvenile homes must run in spirit as envisaged in Juvenile Justice Act. The Panel
additionally noticed that this juvenile home has become a hub for all kinds of sexual
crimes.
Indifferent attitude of the government towards missing children needed to be taken
into consideration.
Minor children trafficking should be considered as a serious offence.
In case, a police officer or a public servant is involved in child trafficking, it should
be dealt with in a stricter manner than usual.
The judiciary of India should have core responsibility of making sure that the
fundamental rights through the constitutional remedies are fulfilled. The CJI has the
right to take up suo motu cognizance and social activists must help the Court in this.
In terms of education, theres a need to make sure non-discrimination towards
children and particularly women.
Punishment for rape must be given in terms of rigorous imprisonment which may
range from seven years to life term.
Punishment for rape that leads to death or vegetative state must be given in terms
rigorous imprisonment ranging from imprisonment not less than 20 years which may
extend to life imprisonment (imprisonment for the remaining life of the convict).
Offences of gang-rape must entail punishment ranging from imprisonment not less
than 20 years which may extend to life imprisonment (imprisonment for the
remaining life of the convict).
In case of Gang-rape causing death of the victim, life imprisonment for the convict
must be made compulsory.
Voyeurism may lead to a punishment of up to 7 years.
Stalking or attempting to contact a woman repeatedly via any means must land the
person in jail for up to 3 years.
Trafficking should be made punishable with imprisonment ranging from not less than
7 years to 10 years.
Features of
the Criminal Law (Amendment) Ordinance, 2013
This Ordinance may be called the Criminal Law (Amendment) Ordinance, 2013. The
key features of the said Ordinance are as follows:
Insertion of new Section 166A to the Indian Penal Code : Public servant disobeying
acid.
Insertion of new sections 354A, 354B, 354C and 354D to the Indian Penal
Code: Sexual harassment and punishment for sexual harassment, Assault or use of
14
Substitution of new sections for sections 375, 376, 376A, 376B, 376C and 376D to
the Indian Penal Code: Sexual assault, punishment for sexual assault, punishment
for causing death or resulting in persistent vegetative state of the victim, sexual
assault by husband upon his wife during separation, sexual intercourse by a person in
offence.
Insertion of new section 53A of the Indian Evidence Act, 1872: Evidence of
criminal law by making amendments in the Code of Criminal Procedure (CrPC), the
Indian Penal Code (IPC) and the Evidence Act.
offences,
in
case
repeated
for
the
second
time.
Section 370 of Indian Penal Code (IPC) has been substituted with new sections, 370
and 370A which deals with trafficking of person for exploitation.
If a person,
(a) recruits,
(b) transports,
(c) harbours,
(d) transfers, or
(e) receives,
a person, by using threats, or force, or coercion, or abduction, or fraud, or deception, or by
abuse of power, or inducement for exploitation including prostitution, slavery, forced organ
removal, etc. will be punished with imprisonment ranging from at least 7 years to
imprisonment for the remainder of that persons natural life depending on the number or
category of persons trafficked.4 Employment of a trafficked person will attract penal
provision as well.5
The most important change that has been made is the change in the definition
of rape under the Indian Penal Code, 1860. Although the Ordinance sought to change the
word rape to sexual assault, in the Act the word 'rape' has been retained as in Section 375,
and was extended to include acts in addition to vaginal penetration. The definition is broadly
worded with acts like penetration of penis, or any object or any part of body to any extent,
into the vagina, mouth, urethra or anus of another person (the victim) or making another
person do so, apply of mouth or touching private parts constitutes the offence of sexual
assault. The said provision has also clarified that penetration means "penetration to any
4 Section 7, Criminal Law (Amendment) Ordinance, 2013
5 ibid
17
extent", and lack of physical resistance is immaterial for constituting an offence. Except in
certain aggravated situation the punishment will be imprisonment not less than seven years
but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated
situations, punishment will be rigorous imprisonment for a term which shall not be less than
ten years but which may extend to imprisonment for life, and shall also be liable to fine.
A new section, 376A has been introduced which states that if a person committing the
offence of sexual assault, "inflicts an injury which causes the death of the person or causes
the person to be in a persistent vegetative state, shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean the remainder of that persons natural life, or with
death."6 In case of "gang rape", persons involved regardless of their gender 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 just and
reasonable to meet the medical expenses and rehabilitation of the victim. The age of
consent in India has been increased to 18 years, which means any sexual activity irrespective
of presence of consent with a woman below the age of 18 will constitute statutory rape.
Certain changes has been introduced in the CrPC and the Evidence Act, like the
process of recording the statement of the victim has been made more victim friendly and
easy however, the two critical changes are:
1. the 'character of the victim' is now rendered totally irrelevant, and
2. there is now a presumption of 'no consent' in a case where sexual intercourse is
proved and the victim states in the court that she did not consent.
~Chapter-2~
Legislative Analysis
The major problem that is being witnessed by the society in the light of this law is
that it is not water tight. Our leaders, like always, have failed to ensure the laws they enact
are free from loopholes. The lack of gender neutrality in definition of offences such as
Disrobing, Voyeurism, Rape etc, and absence of law on marital rape, compensation for
victims of rape, the age of consent and various other lacunas has always created serious
repercussions.
19
The Centre has managed to get the Criminal Law (Amendment) Bill, 2013, passed by
Parliament in the nick of the time. Rajya Sabha endorsed the anti-rape Bill on Thursday,
March 21st 2013, as passed by the Lok Sabha, allowing the government barely enough time
to get the assent of the President and notify the Act that will replace the Ordinance that
would have otherwise lapsed on Friday March 22, 2013.
In a nutshell, the Act broadens the definition of rape and punishes a wide range of
sexual acts in widest possible stringent terms. Though the initiative taken by the Government
of India is commendable, what is really needed is the effective and sensitive implementation
of the law.7
and sexual assault are not merely crimes of passion but an expression of power. Rape should
be retained as a separate offence and it should not be limited to penetration of the vagina,
mouth or anus. Any non-consensual penetration of a sexual nature should be included in the
definition of rape.
The IPC differentiates between rape within marriage and outside marriage. Under the
Indian Penal Code sexual intercourse without consent is prohibited. However, an exception
to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon
a wife. The Committee recommended that the exception to marital rape should be removed.
Marriage should not be considered as an irrevocable consent to sexual acts. Therefore, with
regard to an inquiry about whether the complainant consented to the sexual activity, the
relationship between the victim and the accused should not be relevant.
SEXUAL ASSAULT: Currently, assault or use of criminal force to a woman with
the intent to outrage her modesty is punishable under Section 354 of the Indian Penal Code
with 2 years imprisonment. However, the term outraging the modesty of a woman is not
defined in the Indian Penal Code. Thus, where penetration cannot be proved, the offence is
categorized as defined under Section 354 of the Indian Penal Code. The Committee
recommended that non-penetrative forms of sexual contact should be regarded as sexual
assault. The offence of sexual assault should be defined so as to include all forms of nonconsensual non-penetrative touching of a sexual nature. Sexual gratification as a motive for
the act should not be prerequisite for proving the offence. The offence should be punishable
with 5 years of imprisonment, or fine, or both. Use of criminal force to disrobe a woman
should be punishable with 3 to 7 years of imprisonment.
VERBAL SEXUAL ASSAULT: At present, the use of words or gestures to
insult a womans modesty is punishable with 1 year of imprisonment or fine or both under
Section 509 of the IPC. This section should be repealed. The Committee has suggested that
use of words, acts or gestures that create an unwelcome threat of a sexual nature should be
termed as sexual assault and be punishable for 1 year imprisonment or fine or both.
21
and prosecute for sexual offences. Training of armed personnel should be reoriented to
emphasize strict observance of orders in this regard by armed personnel.
TRAFFICKING: The Committee noted that the Immoral Trafficking Prevention Act,
1956 did not define trafficking comprehensively since it only criminalized trafficking for the
purpose of prostitution. It recommended that the provisions of the Armed Forces (Special
Powers) Act on slavery be amended to criminalize trafficking by threat, force or inducement.
It also recommended criminalizing employment of a trafficked person. The Juvenile and
Women Protective Homes should be placed under the legal guardianship of High Courts and
steps should be taken to reintegrate the victims into society.
CHILD SEXUAL ABUSE: The Committee has recommended that the terms harm
and health be defined under the Juvenile Justice Act, 2000 to include mental and physical
harm and health, respectively, of the juvenile.
PUNISHMENT FOR CRIMES AGAINST WOMEN: The Committee rejected
the proposal for chemical castration as it fails to treat the social foundations of rape. It
opined that death penalty should not be awarded for the offence of rape as there was
considerable evidence that death penalty was not a deterrence to serious crimes. It
recommended life imprisonment for rape.
MEDICAL EXAMINATION OF A RAPE VICTIM: The Committee has
recommended the discontinuation of the two-finger test which is conducted to determine the
laxity of the vaginal muscles. The Supreme Court has through various judgments held that
the two finger test must not be conducted and that the previous sexual experience of the
victim should not be relied upon for determining the consent or quality of consent given by
the victim.
POLICE REFORMS: The Committee has recommended certain steps to reform the
police. These include establishment of State Security Commissions to ensure that state
governments do not exercise influence on the state police. Such Commissions should be
headed by the Chief Minister or the Home Minister of the state. The Commission would lay
23
down broad policy guidelines so that the Police acts according to the law. A Police
Establishment Board should be established to decide all transfers, postings and promotions of
officers. Director General of Police and Inspector General of Police should have a minimum
tenure of 2 years.
REFORMS IN MANAGEMENT OF CASES RELATED TO CRIME
AGAINST WOMEN:
A Rape Crisis Cell should be set up. The Cell should be immediately notified when an
FIR in relation to sexual assault is made. The Cell must provide legal assistance to the
victim.
All police stations should have CCTVs at the entrance and in the questioning room.
A complainant should be able to file FIRs online.
Police officers should be duty bound to assist victims of sexual offences irrespective
of the crimes jurisdiction.
Members of the public who help the victims should not be treated as wrong doers.
The police should be trained to deal with sexual offences appropriately.
Number of police personnel should be increased. Community policing should be
developed by providing training to volunteers.
ELECTORAL REFORMS: The Committee recommended the amendment of the
Representation of People Act, 1951. Currently, the Act provides for disqualification of
candidates for crimes related to terrorism, untouchability, secularism, fairness of elections,
sati and dowry. The Committee was of the opinion that filing of charge sheet and cognizance
by the Court was sufficient for disqualification of a candidate under the Act. It further
recommended that candidates should be disqualified for committing sexual offences.
EDUCATION REFORMS: The Committee has recommended that childrens
experiences should not be gendered. It has recommended that sexuality education should be
imparted to children. Adult literacy programs are necessary for gender empowerment.
24
by throwing acid with imprisonment for minimum of 10 years that may extend up to
life imprisonment and a fine of Rs 10 Lakhs. It penalises the attempt to cause harm by
throwing acid with minimum of five and maximum of seven years of imprisonment.
Third, the Bill replaces the existing offence of rape with that of sexual assault. Under
the Indian Penal Code, rape is defined as sexual intercourse with a woman without
her consent.
The Bill seeks to criminalise the following acts when committed without the consent
of the other person:
penetration of a persons vagina, anus, urethra or mouth with any part of the body
including the penis, or any other object for a sexual purpose;
manipulation of a body part of another person so as to cause penetration of the vagina,
anus, urethra or mouth by any part of the other persons body;
cunnilingus and fellatio.
The IPC provides a punishment of minimum of seven years and a maximum of life
imprisonment and a fine for the offence of rape. It allows the court to impose a lower
sentence. The Bill retains the punishment specified but takes away the power of the
court to lower the sentence.
The Bill increases the age of consent from 16 years to 18 years. It penalises the
commission of the above mentioned acts if the person is below 18 years of age,
irrespective of whether the acts were committed with consent. Under the Indian Penal
Code, sexual intercourse by a man with his wife who is more than 12 years old but
below 15 years of age was punishable with 2 years imprisonment. For sexual assault
by a husband upon his wife below 16 years of age, the Bill provides a punishment of a
minimum of seven years and a maximum of life imprisonment.
Under the Indian Penal Code, there is an exception to the offence of rape when sexual
intercourse is committed without the consent of the wife if she is above 15 years of
age. The Bill increases this age to 16 years.
Under the Indian Penal Code, rape by a husband of his a wife during judicial
separation is punishable with maximum two years imprisonment and fine. The
offence is non-cognizable and bailable. The Bill provides a punishment of up to seven
years and fine for sexual assault during judicial separation. It also changes the nature
of the offence to a cognizable and non-bailable offence.
26
The Indian Penal Code provides a punishment of up to five years for public servants
who engage in sexual intercourse with woman in his custody. The Bill increases the
punishment to a minimum of five and a maximum of 10 years.
The Bill seeks to amend the Indian Evidence Act to provide that in case it is proved
that there was sexual intercourse between the accused and the victim in the accuseds
custody; it would be presumed that it was without her consent. It also states that
evidence of the victim or of his or her previous sexual experience shall not be relevant
on the issue of consent or the quality of consent.
The Bill also increases the punishment for use of criminal force to outrage the
modesty of a woman from up to two years with fine to up to five years with fine.
The Bill amends the CrPC to require that a woman police officer records evidence if
evidence is being given by a woman who is a victim of sexual assault or assault to
outrage her modesty.
The CrPC requires that all evidence in the course of trial be taken in the presence of
the accused. The Bill seeks to create an exception for evidence of a victim of sexual
assault who is below 18 years of age. It allows the court to take appropriate measures
to ensure that the victim is not confronted with the accused.
The Criminal Law (Amendment) Ordinance, 2013: AN OVERVIEW
The Criminal Law (Amendment) Ordinance, 2013 was promulgated by
the Honble President of India, Shri Pranab Mukherjee, on 3 February 2013, in light of the
protests in the 2012 Delhi gang rape case. The said Ordinance was promulgated to amend the
Indian Penal Code, the Code of Criminal Procedure, and the Evidence Act.
The
amendments proposed seek to replace the offence of rape with sexual assault which has a
wider definition.
The Ordinance protects the victim by penalising public servants who fail to record
FIRs relating to sexual offences. They also require the victims to be provided with
legal and medical assistance.
The Ordinance provides for other new offences as well, such as stalking, voyeurism,
assault to disrobe a woman and sexual harassment.
27
The Ordinance prescribes higher punishments for sexual assault resulting in death or
persistent vegetative state, gang sexual assault and repeat offenders.
The Ordinance increases the punishment for sexual assault upon a judicially separated
wife. The Ordinance requires the court to be prima facie satisfied of the offence
before it takes cognizance.
The Ordinance increase the consent age from 16 to 18 years.
The Ordinance requires certain steps to be taken when the statement of a victimised
woman or a differently-abled person is being recorded in sexual offence cases. These
are:
(a) that the statements should be recorded at a place of the victims choice;
(b) that the victim should be provided with assistance from lawyers, health
care workers or womens organizations.
Furthermore, statements of physically or mentally disabled victims would have
to be video-graphed and the victims have to be provided with special educators.
Under both, the Bill and the Ordinance, the Court may take steps to ensure that
victims of sexual offences, who are minors, should not be confronted by the accused
at the time of taking the victims evidence.
Under the said Ordinance, men below 18 years and above 65 years of age, and
women, are be required to attend as witnesses at any place other than the persons
residence. Prior to the Ordinance, apart from women, this provision only applied to
men below 15 years of age.
The Ordinance provide that the persons previous sexual experience would not be
relevant while determining whether there was consent with respect to offences related
to sexual assault, sexual harassment and assault to outrage the modesty of a woman.
The Ordinance penalises certain acts which are also punishable under special laws
such as SC/ST (Prevention of Atrocities) Act, 1989. Punishments under the
Ordinance are higher than under these laws.
The Ordinance specifies the same punishment for penetrative and non-penetrative
sexual assault. It does not provide a gradation of penalties on the basis of the gravity
of the offence.
The Ordinance exempts un-consented penetration or touching of private parts for
medical purposes from punishment.
Age of consent has been increased from 16 to 18 years. There is a divergent view
among various commissions on the age of consent.
Marital sexual assault upon a woman is not an offence. This is at variance with the
recommendation of certain commissions.
Section 326A has been added to the Indian Penal Code as often the cases of throwing
acid on faces of woman have surfaced. Beauty of face is a feature often primarily associated
with females in chauvinistic male society. As such where a perpetrator wants to do damage to
a female, he often prefers throwing acid on her face so as to destroy her beauty, regardless of
any intentions. To curb such a horrifying menace, this crime has been added specifically in
clear words under Indian Penal Code with punishment of either description of not less than
10 years which may extend to life imprisonment along with fine.
Sexual Harassment (Sec 354A)
Sexual harassment may be defined as sexual misconduct by dominant (i.e., superior
officers etc.) irrespective of the subserviants knowledge or any loss or adverse effect for
refusing a superiors unwelcome advance9. As early as 1993 at the International Labour
Organization seminar held at Manila, it was recognized that a sexual harassment of women
at workplace was a form of gender discrimination against women 10. In case of Vishaka v.
State of Rajasthan11, Supreme Court held that sexual harassment includes behaviour
(whether directly or by implication) as:
a) Physical contact and advances;
b) A demand or request for sexual favours;
c) Sexually coloured remarks; etc.
The Parliament enacted Sec. 354A in Amendment Act, 2013 giving effect to the above
guidelines and by also not limiting offence at offices or workplaces but everywhere. In spite
of such a brilliant legislative action, this section is not immune from anomalies as follows:
9 Burlington Industries v. Ellerth 524 U.S. 742 (1998); and Furgagher v. City of Boca Raton 524 U.S.
775 (1998)
10 Apparel Export promotion Council v. A.K. Chopra, AIR 1999 SC 625
11 AIR 1997 SC 3011,para 16
30
i.
ii.
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. The
character Simi Roy (played by the actress Amrita Singh, Bollywood, dir. Mohit Suri) in
movie Kalyug, is an apt description of the offence in the society.
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 perpetratorsraising 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.
has there have been instances worth reporting. 13 Under the Act, 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.
Rape is Redefined as Sexual Assault
Rape is one of the most horrific events any women could experience. Justice
Krishna Iyer in the case of Rafiq vs State Of U.P14 made a remark that, a murderer kills
the body, but a rapist kills the soul. Taking a serious note of the inadequacy of the law of
the rape manifested in a number of judgements, the Parliament from time to time has made
an amendment with laws related to rape, including both procedural and substantive. The
Parliament by means of Amendment Act, 2013 has enlarged the ambit of rape by making
certain non-penetrative act as offence amounting to rape. The Amendment Act, 2013
repealed the Ordinance (Amendment) Act, 2013 which was having wider ambit, thereby
raising serious questions regarding the lacunas or loopholes that the judiciary could
confront in future.
Earlier the offence of rape, i.e. sexual assault was a gender neutral offence, while
now this offence is women centric. Only a man is assumed to be capable of committing such
offence and that too against a woman only. The aspect of gender neutrality was required in
following aspects:
Neutrality with respect to the victim
13 TNN, Much talking on stalking, but what does it all mean? (TimesofIndia.com 2013)
http://articles.timesofindia.indiatimes.com/2013-04-28/people/38862447_1_woman-criminal-law-offences accessed
21 April 2014
Often the members of the marginalised sex like Transgender are also victim of this
offence and as such they cannot claim any protection because the crime of rape is not gender
neutral15.
Neutrality with respect to the perpetrator
During the war in Iraq it surfaced that many women officers also involved themselves
in torturing the prisoners by variant sexual assaults 16. This strengthened the assumption that
even women can be perpetrator of such crimes. There are two occasions when the need for
gender neutrality arises even in India. Firstly, when during some communal or casteist
violence a women is found to be participus criminus. Secondly, when a transgender person
is an offender. The recent case of Pinki Pramanik, where her partner filed a case of rape
against her. This case shows the very real possibility of female to male transgender persons
or male to female transgender persons (either pre- or post- transition) causing sexual assault
on a woman17.
leaving her as an object of sex. The law u/s. 122 of the Indian Evidence Act prevents
communication during marriage from being disclosed in court except when a spouse is being
persecuted for an offence against the other. Since, marital rape is not an offence, the evidence
is inadmissible, although relevant, unless it is a prosecution for battery, or some related
physical or mental abuse under the provision of cruelty19.
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.
2.
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.
~Chapter-2.1~
Table 1: Comparative Analysis Between provisions of
18 Domestic Violence Act, 2005
19 Priyanka Rath, Marital Rape and the Indian legal scenario (India Law Journal )
<http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html> accessed 21 April 2014
35
Table 1: Comparison between provisions of the IPC, Bill and the Ordinance
CRIMINAL LAW
CRIMINAL LAW
INDIAN PENAL
ISSUE
(AMENDMENT)
(AMENDMENT)
CODE, 1860
BILL, 2012
ORDINANCE 2013
Knowingly disobeying
Also penalises failure to
laws relating to
Disobedience of
record information in
No specific
investigation is
law by a public
sexual offence cases of
provision.
punishable with
servant
sexual assault and
imprisonment for one
stalking.
year and/or fine.
Un-consented
penetration of the
mouth, anus, urethra or Same as the provisions
Meaning of sexual Un-consented
vagina with the penis
of the Bill. Also includes
assault (SA) or
penetration of the
or other object; unun-consented touching of
rape
vagina by the penis.
consented oral sex; the private parts.
offence is gender
neutral.
Sexual act between Same as the IPC. The
a man and his wife
age of consent for the
if: (a) she is over 15 wife is increased to 16
Exception to SA
Same as the provisions
years old; and (b)
years.
or rape
of the Bill.
the wife is not
Un-consented acts for
judicially separated medical or hygienic
from the man.
purpose.
Age of consent
16 years.
18 years.
18 years.
No bar on evidence
Relevance of
of immoral
Bars use of previous
character of
character of a
conduct or character of Same as the provisions
victim to prove
victim to prove
the victim to prove
of the Bill.
consent
consent in a rape
consent.
case.
Is not an offence if
Not an offence against Same as the provisions
Marital SA/ rape
the wife is over 15
a wife over 16 years.
of the Bill.
years of age.
7 years to life
Punishment for
7 years to life
Same as the provisions
imprisonment and
SA/ rape
imprisonment and fine. of the Bill.
fine.
Punishment for
10 years to life
10 years to life
10 or 20 years to life
36
gang rape
SA/Rape upon
judicially
separated wife
SA/ Rape by
armed personnel
SA resulting in
death or
vegetative state
Touching
Verbal SA
imprisonment and
fine.
Maximum 2 years
imprisonment.
No specific
provision. Public
servant includes
armed personnel.
Punishment: 10
years to life
imprisonment and
fine.
No specific
provision. Rape and
murder dealt with
as two separate
offences.
Outraging a
womans modesty.
Punishment:
imprisonment for
maximum 2 years
and fine.
Punishable with 2 to 7
years imprisonment.
Punishable with 2 to 7
years imprisonment.
Courts to take
cognizance if there is
prima facie evidence of
offence.
Specific offence. SA by
armed personnel within
the area they are
deployed in. Penalty
remains same.
Requirement for sanction
not removed.
Specific offence.
Punishment 20 years to
life imprisonment or
death.
No specific provision.
Use of words or
No specific provision.
gestures to insult a
womans modesty.
Punishment: 1 years
imprisonment
37
Outraging a womans
modesty:1 to 5 years
imprisonment and fine.
Physical contact
involving unwelcome
and explicit sexual
overtures: up to 5 years
imprisonment and or
fine.
Touching of private
parts: 7 years to life
imprisonment.
Demand/ request for
sexual favours: up to 5
years imprisonment.
Verbally outraging
modesty: up to 3 years
and/or fine.
Punishment
repeat SA
offenders
No specific
provision for this
offence.
imprisonment.
Sexually coloured
remarks, forcible show
of pornography: up to 1
year
Specific offence. Life
imprisonment or death,
except SA by a man on
his judicially separated
wife.
Outraging a
womans modesty.
Specific offence.
Assault to disrobe Punishment:
No specific provision. Punishable with 3 to 7
a woman
imprisonment for
years imprisonment.
maximum 2 years
and fine.
No specific
Specific offence.
Same as under the
Voyeurism
provision for this
Punishable with 1 to 3
IPC.
offence.
years imprisonment.
No specific
Specific offence.
Same as under the
Stalking
provision for this
Punishable with 1 to 3
IPC.
offence.
years imprisonment.
No specific
Specific offence.
provision. Covered
Punishment: 7 to 10
under grievous hurt.
Same as provisions of
Acid attack
years imprisonment
Punishment: up to 7
the Bill.
and up to10 lakh fine
years
as compensation.
imprisonment.
Covered under
Also penalises
slavery, abduction
recruitment, transfer,
and kidnapping for
transport, harbouring a
purposes of
person for the purpose of
prostitution. Also
Same as under the
prostitution, forced
Trafficking
provided for under
IPC.
labour, organ removal by
the Immoral
use of threats or
Trafficking
inducement. Punishment:
Prevention Act,
7 to 10 years
1956.
imprisonment
Table 2: Comparative Analysis of provisions Relating to Similar
Offences Under
THE CRIMINAL LAW (AMENDMENT) ORDINANCE 2013
38
376(2)
fine.
Sec. 354
Sec. 354A
fine.
Sec. 509
Sec. 354A
fine.
Up to 5 years imprisonment and/or
fine.
39
Table 3: Comparison of offences and punishments under the Ordinance and other laws
OFFENCE AGAINST
PCSO ACT, 2012
ORDINANCE, 2013
MINORS
Age of consent
Sexual assault excluding
touching
Touching of private parts
Touching by a public
servant
Gang assault of touching
18 years. No reduction
within marriage.
7 years to life
for girls.
imprisonment.
3 to 5 years imprisonment.
5 to 7 years imprisonment.
5 to 7 years imprisonment.
Protects both boys and girls.
Punishment: 5 to 7 years
Forcing a child to strip or
imprisonment.
TECHNOLOGY ACT,
2000
Protects both men and
ORDINANCE, 2013
Only protects women.
private parts
lakh.
40
SC/ ST PREVENTION
OFFENCE
OF ATROCITIES ACT,
1989
Protects both men and
women. Offence need not
Disrobing
ORDINANCE, 2013
Sources: Protection of Children from Sexual Offences Act, 2012; Information Technology Act, 2000, Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Criminal Law (Amendment) Ordinance,
2013.
Commission
Table 4: Age of consent as per different commissions
COMMISSIONS
AGE OF CONSENT
LCR 84th, 1980
18
18
16
18
REASONS/ REMARKS
As marriage of a girl below 18
is prohibited, sexual intercourse
should also be prohibited.
As age for kidnapping was
increased from 16 - 18 years.
Consented activity is exempt if
41
16
Sources: Law Commission Reports; NCWs draft Indian Penal Code Bill, 2006; Report of the Verma Committee to
Amend Criminal Laws, 2013.
Different Countries
Table 5: Comparison of age of consent in different countries and the defence of low age
gap
Country
Age of Consent
Canada
16
UK
16
42
USA
16-18
Finland
16
Australia
16
Sources: Canadian Criminal Code, 1985; Sexual Offences Act, 2003; Criminal Code of Finland, 1996; Statutory Rape, ASPE,
Department of Health and Human Services, United States of America, 2004; Australian State Laws.
~Chapter-2.2~
43
victim was pregnant, whether injury occurred. Marital rape is also recognized as an offense
under the 2004 Laws, being classified as a petty misdemeanour. The most serious form of
rape is Gang rape of a child below twelve years of age, classified as a felony of the first
degree.
RAPE
177. A defendant shall be guilty of the offence of rape, if the defendant has
sexual intercourse with another person:
(a) Without the persons consent or with consent, when consent is obtained by
putting the person or a third person in fear of death or of grievous hurt;
(b) Compels the other person to submit to sexual intercourse by force, or by
threat of imminent death, bodily injury or serious bodily injury or the
commission of a felony to that person or a third person;
(c) Substantially impairs the other persons ability to appraise or control the
conduct by administering drugs, intoxicants, or other substances without
consent for the purpose of preventing the persons resistance to the sexual
intercourse, or
(d) Renders the other person unconscious for the purpose of committing
sexual intercourse
The most serious sexual offense is gang rape of a child under 12.
GANG RAPE OF A CHILD BELOW TWELVE YEARS OF AGE
191. A defendant shall be guilty of the offence of gang rape of a child below
the age of twelve years, when two or more persons engage in a sexual
intercourse with a child below the age of twelve years.
Grading of Gang rape of a child below twelve years of age
44
192. The offence of gang rape of a child below twelve years of age shall be a
felony of the first degree
Marital rape
199. A defendant shall be guilty of marital rape, if the defendant engages in
sexual intercourse with one's own spouse without consent or against the will
of the other spouse.
Grading of Marital rape
200. The offence of marital rape shall be a petty misdemeanour.
Canada
The word rape is not used in the Canadian Criminal Code. Instead the law
criminalizes "sexual assault". Sexual assault is defined as sexual contact with another person
without that other person's consent. Consent is defined in section 273.1(1) as "the voluntary
agreement of the complainant to engage in the sexual activity in question".
Section 265 of the Criminal Code of Canada defines the offenses of assault and sexual
assault.
Section 271 criminalizes "Sexual assault", section 272 criminalizes "Sexual assault
with a weapon, threats to a third party or causing bodily harm" and section 273 criminalizes
"Aggravated sexual assault".
45
South Africa
The Criminal Law (Sexual Offences and Related Matters) Amendment Act created
the offence of sexual assault, replacing a common-law offence of indecent assault. "Sexual
assault" is defined as the unlawful and intentional sexual violation of another person without
their consent. The Act's definition of "sexual violation" incorporates a number of sexual acts,
including any genital contact that does not amount to penetration as well as any contact with
the mouth designed to cause sexual arousal. Non-consensual acts that involve actual
penetration are rape rather than sexual assault.
Unlawfully and intentionally inspiring the belief in another person that they will be
sexually violated also amounts to sexual assault. The Act also created the offences of
"compelled sexual assault", when a person forces a second person to commit an act of sexual
violation with a third person; and "compelled self-sexual assault", when a person forces
another person to masturbate or commit various other sexual acts on himself or herself. 21
Northern Ireland
Sexual assault is a statutory offence. It is created by article 7 of the Sexual Offences
(Northern Ireland) Order 2008. Sexual assault is defined as follows:23
Sexual assault
(1) A person (A) commits an offence if
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
Scotland
Sexual assault is a statutory offence. It is created by section 3 of the Sexual Offences
(Scotland) Act 2009. Sexual assault is defined as follows:24
22 "Sexual
Offences Act
2003."
UK
Legislation.
The
National
<http://www.legislation.gov.uk/ukpga/2003/42/section/3> Retrieved 2014-04-22
Archives,
2003.
23 "The Sexual Offences (Northern Ireland) Order 2008". Legislation.gov.uk. 2011-05-26. Retrieved
2014-04-22
47
Web.
(B) causes the penetration of the mouth of another person by the sexual organ
of the actor, without that person's consent; or
(C) causes the sexual organ of another person, without that person's consent,
to contact or penetrate the mouth, anus, or sexual organ of another person,
including the actor; or
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any
means;
(B) causes the penetration of the mouth of a child by the sexual organ of the
actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus,
or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of
another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another
person, including the actor.25
France
The French Penal Code defines the term RAPE as:
Any act of sexual penetration, whatever its nature, committed against another person by
violence, constraint, threat or surprise, is rape. Rape is punished by a maximum of fifteen
years' criminal imprisonment.
Rape is punished by a maximum of twenty years' criminal imprisonment in certain
aggravating factors (including victim under age of 15).
Israel
The definition of the criminal offense of rape in Israel is as follows:26
Rape 345.(a)
If a person had intercourse with a woman
(1) without her freely given consent;
(2) with the woman's consent, which was obtained by deceit in respect of the identity
of the person or the nature of the act;
(3) when the woman is a minor below age 14, even with her consent;
(4) by exploiting the woman's state of unconsciousness or other condition that
prevents her from giving her free consent;
(5) by exploiting the fact that she is mentally ill or deficient, if because of her illness
or mental deficiencyher consent to intercourse did not constitute free consent;
then he committed rape and is liable to sixteen years imprisonment.
Switzerland
Rape is defined as follows:27
26 http://www.oecd.org/investment/anti-bribery/anti briberyconvention/43289694.pdf
50
Art. 190
Any person who forces a person of the female sex by threats or violence, psychological
pressure or by being made incapable of resistance to submit to sexual intercourse is liable to
a custodial sentence of from one to ten years.
Marital rape was made illegal in 1992, and since 2004 marital rape is prosecutable exofficio (meaning it can be prosecuted even if the wife doesn't complain). 28
~Chapter-3~
27 http://www.admin.ch/ch/e/rs/3/311.0.en.pdf
28 http://www.socialinfo.ch/cgi-bin/dicoposso/show.cfm?id=432
29 Times of India Kolkata 2013 May 19; 1 (Col. 3)
51
rape and other sexual offence can be attributed to the fact that youth comprises 31.5% of
Indias population (NSS).
The millennial generation is one of the biggest generations in numbers and by 2020
its number will represent, 1 out of every 3 adults 30. India is a Country with high
unemployment, poverty and illiteracy among young and growing population. This makes an
ideal condition for crime against woman. Stricter laws are drafted with an aim to act as
deterrent against sexual crimes. Law of rape had been amended earlier also. By the Criminal
Law Amendment Act, 1983, Sec. 375 and 376 of IPC has been substituted. 31 Under Sec. 375
I.P.C., rape had four Clauses, pre 1983 but following amendment it now has six descriptions.
Also Sec 376 of the IPC spells out the punishments which were added after the changes done
in Sec. 375 I.P.C. This was the requirement then in 1983 because of the famous Mathura
Case32, which introduced new offence (Custodial Rape) and enhanced minimum punishment
of all categories of rape.33 An analysis of rape cases reported to the police shows that even as
the number of cases filed has increased over time, rising from 16,373 nationwide in 2002 to
24,923 last year, the number of convictions is flat-lining. In 2012, the conviction rate fell to
24.20% from 26.40% a year earlier. Between 2002 and 2011, the rate had hovered around the
26.5% mark. Rape accounted for 1% of all crime reported in India in 2012, while cruelty by
a husband or his relatives made up 4.5% of all crime in that year 34.
In 2012, there were 133,922 people waiting to be tried on rape charges at the start of
the year, including those whose trial was carried over from the previous year. Of those, 15%
30 Times of India, Kolkata 2013 April 15;1(Col. 2)
31 Karmakar RN. JB Mukherjees Forensic Medicine and Toxicology. 3rd ed. Kolkata: Academic publishers
32 Tukaram Vs State of Maharashtra AIR 1979 SC 185 : (1979) 2 SCC 143
33 Pillay VV. Text Book of Forensic Medicine and Toxicology. 16th ed. Hyderabad: Paras Medical Publisher; 2011.
p. 343.
were given a verdict by the end of the year, while 84% remained pending and the rest had
their cases withdrawn35.
In the 20,660 rape trials completed last year, just under a quarter of those charged, or
4,821 people, was convicted.36 There has been only one conviction out of over 600 cases of
rape reported to Delhi Police this year even as crime against women has been on the rise in
the national capital. 37
As many as 754 accused were arrested in the 635 cases reported to Delhi Police
between January and November, the highest in past five years, home ministry data said. Of
these total accused; only one was convicted while 403 were facing trials, investigations were
pending against 348 and two others were discharged. Delhi has reported 165 cases of eve
teasing last year and 126 in 2010 in which 172 and 116 accused were arrested respectively.38
An idea about magnitude of the crimes against women can be had from the all India
figures for 5 years i.e., from 2001 to 2005 published in the National Record Bureau given
below (Table 6). A total of 1, 55,553 crimes against women were reported in the country
during the year 2005 as compared to 1, 54, 333 during the year 2004 recording 1.7%
increase. These crimes have reported continual (regular) increase since 1996 when 1, 57, 723
crimes were reported signifying 24% increase.39
Madhya Pradesh during the year 2005 has reported the highest number of rape cases
2, 921 accounting to 15.9% of total such crimes in the country.40
CRIME HEAD
YEAR
2001
2002
2003
2004
2005
2012
16075
16373
15847
18233
18359
24923
Dowry Death
6851
6822
6208
7026
6787
8233
34124
33943
32939
34567
34175
45351
9746
10155
12325
10001
9984
9173
114
76
46
89
149
59
66,910
67369
67365
69916
69454
87739
Molestation
( 354, IPC)
Sexual Harassment (
509, IPC)
Importation of Girls
( 366B, IPC)
Total
40 Textbook on The Indian Penal Code K.D. Gaur 4th Edn. 2009 p. 638
41 National Crime Record Bureau Web: http://ncrb.nic.in/ Retrieved: 23/04/2014
54
S NO.
RATE OF CRIME
1.
Rape
29 Minutes
2.
Sexual Harassment
53 Minutes
3.
Molestation
15 Minutes
4.
09 Minutes
5.
Dowry Deaths
77 Minutes
S. No
Year
1.
2005-2006
1,55,553
2.
2006-2007
1,64,765
3.
2007-2008
1,85,312
4.
2008-2009
1,95,856
5.
2009-2010
2,03,804
6.
2010-2011
2,28,650
42 K.D. Gaur, Textbook on The Indian Penal Code (4th, Universal Law Publishing Co. Pvt. Ltd, Delhi
2011) p.g. 637
55
STATS
(in number of cases)
24770
393
Neighbours
1585
Relatives
8484
14008
S NO.
NUMBER OF VICTIMS
1.
Upto 10
178
2.
10-14
261
3.
14-18
687
4.
18-30
1168
5.
30-50
288
6.
Above 50
22
43 Crime in India, 2012, National Crime Record Bureau, 31st July, 2012
44 Crime in India, 2011, National Crime Record Bureau, p. 226
56
~Chapter-4~
Judicial Analysis
Since 1977, rape has been a major issue of concern for the women's groups and
human rights groups in India. Rape of a minor called Mathura, by two policemen in a police
station was reported in 1972 and her case was taken up by a human rights lawyer in three
courts including the Supreme Court of India.
The final judgement was that Mathura had a loose character and she was not
raped but that sexual intercourse took place after wilful consent. The resulting nationwide ant
i-rapecampaign in 1980 demanded amendments in the Rape Law and reopening of the
Mathura Rape case. In 1983, Indian parliament amended the existing law.
Sexual Offences constitute an altogether different kind of crime, which is the result
of a perverse mind. The perversity may result in rape or in homosexuality. Those who
commit such crimes are psychologically sadistic persons exhibiting that tendency in rape
forcibly committed by them. 45 The question of desirability of death sentence for rapists in the
context of demand by a large section of the people and womens organisation, in the wake of
increasing rape cases in the country, has been analyses in the light of the constitutional
provision under Article 21 i.e., Right to life and personal liberty, and the famous American
Cases of Ehrlich Anthony Coke46 and Patrick Kennedy47 in which the US
Supreme Court has turned down death sentence for a rapist on the ground that it violates the
prohibition against cruel and unusual punishment under Eight and Fourteenth amendment to
the US Constitution.
45 TK Gopal v. State of Karnataka (2000) 3 Supreme 706 (SC), AIR 2000 SC 16669
46 Ehrlich Anthony Coke v. State of Georgia 433 US 584 (1977), 53 L Ed 982, 97 S Cr 2861 (1977)
47 Patrick Kenneddy v. Lousiana 128 S. Cr 2641 (October 1, 2008)
57
In 1980, when the Supreme Court of India gave its verdict on the Mathura Rape Case,
there was a national outcry.48
Mathura, a teenage tribal girl was raped by two policemen, in the police station at
dead of night while her relatives were weeping and wailing outside the police-station. The
legal battle began when a woman lawyer took up her case immediately after the event in
1972. The Sessions Court blamed Mathura for being a woman of "an easy virtue", and the
two policemen were released. In the High Court Judgement, the accused were given seven
and half years imprisonment which was reverted by the judgement of the highest legal
authority-The Supreme Court of India. It held that Mathura had given a wilful consent as she
did not raise any alarm.49
The resulting nation-wide anti-rape campaign in 1980 demanded reopening of the
Mathura Rape Case and amendments in the Rape Law.50 Prominent lawyers took up the
issue,
as
did
the
national
and
regional
language
press.
New
groups
of women were formed around this campaign. They organized public meetings and postercampaigns, performed skits and street-theatre, collected thousands of signatures in support of
their demands staged rallies and demonstrations, submitted petitions to MLAs and the Prime
Minister, and generally alerted the public to the treatment meted out to the rape victims. The
initiative came from the middle class, educated and urban women. Later on, the political
parties and the mass organisations also joined the bandwagon.
The sentencing order in the December 16 gang rape case (State v. Ram Singh
and Ors , SC No. 114/2013) highlights various problems with Indias death penalty
jurisprudence. In this piece, I make and substantiate this argument by first describing the
broad contours of, and debates within, Indias death penalty jurisprudence. Though
48 Vibhuti Patel: "Women's Liberation in India" , New Left Review, No. 153, 1985
49 Tukaram and Ganpat versus State of Maharashtra, 1979, Supreme Court of India, Delhi.
50Neera Desai and Vibhuti Patel: Indian Women-Change and Challenge in the International Decade,1975-85 ,
Sangam Publications, 1990
58
Bachan Singh v. State of Punjab 51 was neither the first nor the last case where
the constitutionality of the death penalty was challenged, it remains the controlling precedent
on the issue and is the starting point of this analysis.
To bring home charges of rape, it is necessary, to establish that sexual intercourse
was done by the man against the will or without the consent of the woman under the
circumstances enumerated under clauses firstly to seventhly of S. 375 IPC.
While distinguishing between the two expressions against the will and without the
consent under clause (i) and (ii) of S. 375 IPC, the Supreme Court of India in Deelip
Singh v. State of Bihar52 observed that:
....though will and consent often interlace and an act done against the will
of the person can be said to be an done without the consent, the Indian Penal
Code categorizes these two expressions under separate heads in order to
make it as comprehensive as possible.
The distinction between the two expressions was spelled out by the Supreme Court of
India in State of Uttar Pradesh v. Chhotey Lal53 , in the following words:
....But that as it may, in our view, clause Sixthly of S. 375 is not attracted
since prosecutrix has been found to be above 16 years. In the facts of the case
what is crucial to be considered is whether clause First or clause Secondly of
S. 375 IPC is attracted. The expressions against the will and without the
consent may overlap sometimes but surely the two expressions in clause First
and clause Secondly have different connotation and dimension. The
expression against the will would ordinarily mean that the intercourse was
done by a man with a woman despite her resistance and opposition. On the
51 AIR 1980 SC 898
52 (2005) 1 SCC 88, AIR 2005 SC 203
53 (2011) 2 SCC 550, AIR 2011 SC 697
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other hand, the expression without the consent would comprehend an act of
reason accompanied by deliberation.
March 2014, Delhi High Court in the death reference case and hearing appeals against the
conviction by the lower Court upheld the guilty verdict and the death sentences.
CASE DIARY
Dec 16, 2012: Nirbhaya, a 23-year-old paramedic student, gang-raped and assaulted by six
men in a private bus and thrown out of the moving vehicle along with her male friend
Dec 17: Police identify four accused-Ram Singh, his brother Mukesh, Vinay Sharma and
Pawan Gupta
Dec 18: Ram Singh and three others arrested
Dec 20: Victim's friend testifies
Dec 21: Juvenile perpetrator nabbed from Anand Vihar bus terminal in Delhi
Dec 22: Sixth accused, Akshay Thakur, arrested in Aurangabad district of Bihar. Nirbhaya,
fighting for life in Safdarjung Hospital, records statement before SDM
Dec 26: Government decides to take her to Singapore's Mount Elizabeth Hospital following a
cardiac arrest
Dec 29: Nirbhaya dies in Singapore at 2.15am; police add murder charge in FIR
Jan 3, 2013: Police file charge sheet against five adult accused
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belts and raped her. The accused took photos of the victim during the sexual assault, and
threatened to release them to social networks if she reported the rape. Later one more gang
rape case was reported against the accused. A 19-year-old call centre employee approached
the authorities after the photojournalists rape was reported, claiming that she too had been
gang raped by five men on 31 July 2013, three of whom were also allegedly involved in the
photojournalist gang rape case.
On 20 March 2014, a Mumbai sessions court convicted all five adult accused in both cases
on 13 counts. On 4 April 2014, the court awarded the death penalty to the three repeat
offenders in the photojournalist rape case. The other two convicts were awarded life
imprisonment. Two minors, one in each case, are currently being tried by the Juvenile Justice
Board separately. If convicted. the maximum punishment they can face under Indian law is
three years imprisonment, which includes time in custody.
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In disposing of the writ petition with directions, it was held that: The fundamental
right to carry on any occupation, trade or profession depends on the availability of a safe
working environment. The right to life means life with dignity. The primary responsibility for
ensuring such safety and dignity through suitable legislation, and the creation of a
mechanism for its enforcement, belongs to the legislature and the executive. When, however,
instances of sexual harassment resulting in violations of Arts 14, 19 and 21 are brought under
Art 32, effective redress requires that some guidelines for the protection of these rights
should be laid down to fill the legislative vacuum. In light of these deliberations, the Court
outlined guidelines which were to be observed in order to enforce the rights of gender
equality and to prevent discrimination for women in the workplace. These guidelines
included the responsibility upon the employer to prevent or deter the commission of acts of
sexual harassment and to apply the appropriate settlement and resolutions and a definition of
sexual harassment which includes unwelcome sexually determined behaviour (whether
directly or by implication) such as:
Furthermore the guidelines set out that persons in charge of a workplace in the public or
private sector would be responsible for taking the appropriate steps to prevent sexual
harassment by taking the appropriate steps, including:
The prohibition of sexual harassment should be published in the appropriate ways and
providing the appropriate penalties against the offender;
For private employees, the guidelines should be included in the relevant employment
guidelines;
Appropriate working conditions in order to provide environments for women that are
not hostile in order to establish reasonable grounds for discrimination;
The employer should ensure the protection of potential petitioners against
victimisation or discrimination during potential proceedings;
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free merely because there were no marks of injury on his penis- which the High Court
presumed was a indication of no resistance. The most important facts such as the age of the
victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on
her body were not considered by the High Court. Even the eye- witnesses who witnessed this
ghastly act, could not sway the High Court's judgment.
Whereas, in State of Punjab Vs. Gurmit Singh 59, the Supreme Court has
advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the
Court should not describe her to be of loose character.
58 1989 CriLJ 137, 1988 (2) Crimes 677, 35 (1988) DLT 170
59 1996 AIR 1393, 1996 SCC (2) 384
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3. The police should be under a duty to inform the victim of her right to a counsel
before being interrogated.
4. A list of lawyers willing to act in these cases should be kept at the police station.
5. Advocates shall be appointed by the Court on an application by the police at the
earliest, but in order that the victim is not questioned without one, the Advocate shall
be authorized to act at the police Station before leave of the Court is sought or
obtained.
6. In all rape trials, anonymity of the victim must be maintained
7. It is necessary to setup Criminal Injuries Compensation Board with regard to the
Directive Principles contained under Article. 38(1) of the Constitution of India. As
some victims also incur Substantial losses.
8. Compensation for the victims shall be awarded by the Court on the conviction of
the offender and by the Criminal Injuries Compensation Board- whether or not a
conviction has taken place. The Board will take into account pain, suffering, shock as
well as loss of earnings due to pregnancy and child birth if this accrued as a result of
rape.
In 1997, Sakshi, an organisation involved in issues on women and children,
approached the Supreme Court through a writ petition asking for directions concerning the
definition of rape in the IPC. Although the Supreme Court did not interpret the provisions of
Section 375 IPC to include all forms of penetration such as penile/vaginal penetration,
penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal
penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge
behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that
any alteration [in this case, of the definition of rape] would result in chaos and confusion; it
directed the Law Commission of India to respond to the issues raised in the petition. The
Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying
that the 156th Law Commission Report had dealt with these issues. The Supreme Court,
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however, agreed with Sakshi that the 156th Report did not deal with the precise issues raised
in the writ petition. In August 1999, it directed the Law Commission to look into these issues
afresh.62
After detailed consultations with the organisations, the Law Commission released its
172nd Report on the Review of Rape Laws, in 2000. The Law Commission recommended
changing the focus from rape to `sexual assault', the definition of which goes beyond penile
penetration to include penetration by any part of the body and objects, taking into account
cunnilingus and fellatio.
residence or the victims place of choice. These requirements apply to offences such as
causing voluntarily, grievous hurt by the use of acid, sexual harassment, assault or use of
criminal force against a woman with intent to disrobe, voyeurism, stalking, rape, gang rape,
sexual intercourse by a person in authority, and a word, gesture or act intended to insult the
modesty of a woman. The CrPC was further amended to provide for a court to ensure that
when the evidence of a victim of rape below 18 years has to be recorded, the accused does
not confront the victim. However, many procedural issues critical to making the criminal
justice system functional in the case of rape and serving as a deterrent against further crime
have not been addressed by the Act.
cameraproceedings. They are usually ordered only where a matter of national security is
involved or a party asserts that communications are privileged. In camera proceedings are
not ordered on the grounds that the accuseds safety is at risk as in the Delhi case. Indeed, the
courts order of in camera proceedings in this case has resulted in it being secluded from
media attention, thereby reducing public pressure for further reforms.
While the Act has made limited changes to criminal procedure, the police have been
left out of legislative reforms altogether. The only reforms were those announced by the then
Delhi Police Commissioner, Neeraj Kumar, on January 18, 2013, including that Zero First
Information Reports (FIR) may be registered on the basis of a womans statement at any
police station irrespective of jurisdiction. Jurisdiction is a very important issue as, in the
Delhi case, the victims friend stated that the police wasted 30 minutes arguing over
jurisdiction, although the victim and her friend were lying on the road for two hours. The
police chief also announced a series of other measures such as the recruitment of 418 women
sub-inspectors and 2,088 women constables, PCR vans to be deployed outside womens
colleges, provision for women to call 100 to seek assistance to be given a lift home at night
by a PCR van, and 24-hour police cover for areas around entertainment hubs with increased
security between 8 p.m. and 1 a.m. Despite these reforms, in the succeeding months, police
actions in subsequent rape cases have caused much alarm. In the case of the rape of a fiveyear-old child, the police were accused of offering a bribe of Rs. 2,000 to the victims family
to refrain from filing a case. Police officers have also been filmed on video beating women
of all ages because they had the audacity to protest a rape.
Model Police Act
Despite the clear need for reform of police handling of rape cases, the Model Police
Act of 2006 drafted by the Police Act Drafting Committee (PADC) constituted by the
Ministry of Home Affairs in September 2005, and chaired by Mr. Soli Sorabjee, is in cold
storage. The Model Act, which was intended to replace the archaic Indian Police Act of 1861,
was drafted with the purpose of not only meeting the challenges of policing but also fulfilling
the democratic aspirations of a modern society. The PADC envisioned a modern police force
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which was responsive to the needs of the people while being accountable to the rule of law. A
few of the key concepts underlying the police Act were: 1) functional autonomy; 2)
encouraging professionalism; 3) accountability; and, presciently, 4) jurisdiction.
First, functional autonomy was viewed as a means of removing the nexus between
police and politicians who treat the police as their personal security service. It proposed the
establishment of a panel to receive complaints from police officers of pressure from higher
officials to commit illegal or unconstitutional acts. The PADC felt that the law should be the
master of the police, not politicians. A fixed tenure of two years was suggested to avoid
transfers arbitrarily.
Second, the Model Act focussed on encouraging professionalism. The PADC
recommended abolition of the rank of constable and replacing it with a primary rank of
Grade II civil police officer. However, a recruit can attain this officer rank only after
undergoing a three-year training course as a stipendiary cadet, culminating in a bachelors
degree in police studies. As a result, even the lowest level of the police force will have a
bachelors degree.
Third was the principle of accountability. The police Act proposed introducing
criminal penalties for the most common defaults of the police such as non-registration of
FIRs, unlawful arrest, detention, search or seizure.
Fourth, and most presciently, was the issue of jurisdiction. Underpinning the Model
Police Act is the notion that police officers should be duty-bound to assist victims of sexual
offences irrespective of the crimes jurisdiction. As the Model Police Act was never
implemented, it took the tragic Delhi case for reforms regarding jurisdiction to be
announced. In short, while the passage of the Criminal Law (Amendment) Act 2013 is a
milestone in criminal law reform in rape cases, the creation of offences is not sufficient.
Instead, the punishment of those committing these offences through the police and the
criminal justice system is critical in providing effective deterrence against future crimes.
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BIBLIOGRAPHY
BOOKS / ARTICLES / REPORT / RECOMMENDATIONS :
Dr. KI Vibhute, PSA Pillais Criminal Law (10th edn Butterworths, New Delhi
2008).
S. K. Sarvaria (edr), R. A. Nelsons Indian Penal Code (9th Lexis Nexis Delhi 2003)
Jus A. B. Srivastava (ed) Dr Hari Singh Gours Penal Law of India (11th edn Law
Publisher, Allahabad 2000)
Arvind Narrain , The Criminal Law ( Amendment) Bill 2012: Sexual Assault as a
Gender
Neutral
Offence
(Economic
and
Political
Weekly
2012)
WEBSITES :
www.indiankanoon.org
www.legalcrystal.in
www.manupatra.in
www.lexisnexis.com
www.legalserviceindia.com
www.lawyersclubindia.com
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