CRIMINAL Law

AMENDMENT ACT,2013

ANALYSIS

Abstract
Change in life style, living standards, disparity in economic growth due to urbanization and
changes in social ethos and lack of concern for moral values contribute to a violent approach
and tendencies towards women, which has resulted in an increase in crime against women The
barbarous Rape Incident that occurred in Delhi was result of this attitude of our legislature.
Further, the protest in the Delhi after the barbarous Rape Incident indicated the whole of India,
the enormity as well as the seriousness for an immediate reform in Rape Laws. In the backdrop
of this incident, the Central Government setup Justice Verma Committee headed by former CJI
of India, J.S. Verma to make recommendation on the inefficiency of Rape Laws and other laws
for Protection of Women in IPC because of great hue and cry by the Indians. Not only this, the
President of India promulgated The Criminal Law (Amendment) Ordinance,2013 (hereinafter
refer as Ordinance,2013), which amended several laws related to Protection of Woman, as an
immediate measure to calm down the anger of the India. Since, the Ordinance,2013 was full of
anomalies, which where prima facie as it was hurriedly enacted.The Ordinance has enhanced
the term of imprisonment prescribed for the offence which falls under the category of assault or
criminal force to woman with intent to outrage her modesty (section 354). While earlier the
accused was liable to imprisonment of a term which could extend to two years or fine or both,
now, the same offence is punishable with a term of one year which may extend up to five years
and shall also be liable to fine.
This reflects substantial change in the outlook towards the crime and a stronger determination
to deter criminals

INTRODUCTION

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

Offences and Crimes against Women

Rate of Crime
Rape
29 Minutes
Sexual Harassment
53 Minutes
Molestation
15 Minutes
Cruelty by husband or other relatives
09 Minutes
Dowry Deaths
77 Minutes

Statistics of National Crime Records Bureau on Crime Against Woman

The barbarous Rape Incident that occurred in Delhi[4] was result of this attitude of our
legislature. Further, the protest in the Delhi after the barbarous Rape Incident indicated the
whole of India, the enormity as well as the seriousness for an immediate reform in Rape Laws.
In the backdrop of this incident, the Central Government setup Justice Verma Committee
headed by former CJI of India, J.S. Verma to make recommendation on the inefficiency of Rape
Laws and other laws for Protection of Women in IPC because of great hue and cry by the
Indians. Not only this, the President of India promulgated The Criminal Law (Amendment)
Ordinance,2013 (hereinafter refer as Ordinance,2013), which amended several laws related to
Protection of Woman, as an immediate measure to calm down the anger of the India. Since, the
Ordinance,2013 was full of anomalies, which where prima facie as it was hurriedly enacted.
The Cabinet headed by P. Chidambaram with his colleagues debated the Criminal Law
Ordinance,2013[5].On 19 March 2013, it was passed by Lok Sabha. On 21st March, it was a
surprise for everyone that the law which touches the life and soul of every individual of this
country was passed by Rajya Sabha in just one day discussion[6].
The Criminal Law Amendment Act,2013(hereinafter refer as Amendment Act,2013), for the first
time, has created many new offences for protection of woman against acid attacks(Sec. 326A
and 326B), sexual harassment (Sec. 345A),voyeurism (Sec. 345C) and stalking(Sec. 345D) and
inter alia , enlarged the definition of rape(Sec. 375) in IPC.

[1]
The Ordinance has enhanced the term of imprisonment prescribed for the offence which falls
under the category of assault or criminal force to woman with intent to outrage her modesty
(section 354). While earlier the accused was liable to imprisonment of a term which could
extend to two years or fine or both, now, the same offence is punishable with a term of one year
which may extend up to five years and shall also be liable to fine.
This reflects substantial change in the outlook towards the crime and a stronger determination
to deter criminals

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

The ordinance mandates insertion of new sections after the already existing section 354 which
deals with assault or criminal force to woman with intent to outrage her modesty.
Section 354A deals with the definition of sexual harassment which is very broadly defined and
criminalizes acts like forcibly showing pornography, physical contact and advances involving
unwelcome and explicit sexual overtures, demanding or requesting sexual favours, any other
unwelcome physical, verbal or non-verbal conduct of sexual nature. This section further deals
with the punishment to be awarded for the offence depending upon the act in question.
While demanding or requesting sexual favours and physical contact or advances which involve
unwelcome and explicit sexual overtures is punishable with rigorous imprisonment of a term
which may extend to five years or with fine or with both, the other three acts enumerated above
attract a lesser term which may extend to one year or fine or both.

Disrobing a Woman (Sec 354B)

Parliament made an amendment to IPC, adding Sec 354B, to create a new offence namely,
Assault or use of criminal force to woman with intent to disrobe. The offence was made gender
specific in backdrop of Delhi Bus Gang Rape[10]. Hailed by many legal scholars there is also a
different story which remained unnoticed. The offence of disrobing should also be extended to
men because unfortunately the young boy, who was with the girl and sole eye witness of the
incident, was also assaulted and disrobed[11] and as far as the victims are considered it should
be made gender-neutral. The Sec. 355 has not sufficed in protecting male victims. The male
accompanying the rape victim in the above mentioned event also suffered tortures and
inhumane treatment at the hand of perpetrators.
Voyeurism (Sec 354C)
Voyeurism has surfaced in recent times with the advent of internet and social media sites. The
Parliament by enacting Amendment Bill, 2013 has made it punishable under Sec 354C of IPC.
Indian Parliament made Voyeurism gender specific, meaning that only a male could commit
such a crime against a woman. This is very injudicious as there are often cases where women
are also involved in commission of offence. Apart from this while dealing with offence of
Voyeurism in Sec 354C, there is another anomaly related to its applicability. The section on
voyeurism starts with Any Man, making it clear that only man can be perpetrators, followed by
the phrase by any other person at behest of the 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.
[2]

Section 354 D criminalizes the act of stalking which interferes with the mental peace of a person
or causes distress, fear of violence or alarm. The same is punishable with a minimum
imprisonment term of one year which may extend to three years and also liable with fine.
However, the offence is subject to certain exceptions like where a person can show that the acts
done were in pursuance of some law, amounted to reasonable conduct or in order to prevention
of some crime.
Further section 375 has been replaced with a newly worded section where the word rape has
been substituted by sexual assault. It has two implications, one, that under the changed law
the offence of sexual assault has been made gender neutral and second that the new term will
take under its ambit many more acts of sexual nature. Under the old provision read with case
law, a very strict definition of rape, which required certain degree of penetration of the female
genitalia, was followed. However, under the substituted provision the law stands substantially
changed. It provides for the following:
i) Penetration of penis into vagina, urethra, mouth or anus of any person, or making any other
person to do so with him or any other person;
ii) Insertion of any object or any body part, not being penis, into vagina, urethra, mouth or anus
of any person, or making any other person to do so with him or any other person;
iii) manipulation of any body part so as to cause penetration of vagina, urethra, mouth or anus
or any body part of such person or makes the person to do so with him or any other person;
iv) Application of mouth to the penis, vagina, anus, urethra of another person or makes such
person to do so with him or any other person;
v) lastly, touching the vagina, penis, anus or breast of the person or makes the person touch the
vagina, penis, anus or breast of that person or any other person.
As can be observed the new section has criminalized forcing a person to commit a sexual act
on oneself as well as any other person. This is a very substantial change.
Also consent by any person below 18 years of age is considered to be no consent. The age bar
earlier was 16 years.Also added is the explanation 3 which says that a person who does not
physically resist to the act of penetration shall not by the reason only of that fact, be regarded
as consenting to the sexual activity
Any of the acts enumerated above will constitute the offence of sexual assault and be
punishable with an imprisonment term not less than seven years but may extend to life
imprisonment and shall also be liable to fine. Also aggravated sexual assault is liable for
imprisonment of a term not less than 10 years but may extend to life imprisonment and also
fine.
The Ordinance has further amended the law to provide for the following:
1) Where the commission of sexual assault or aggravated sexual assault causes death of the
victim or leaves the victim in a persistent vegetative state the punishment is prescribed to be
rigorous imprisonment of a term not less than twenty years but may extend to life imprisonment
(meaning the whole of the remainder natural life of the accused) or even with death.
2) Further section 376 B provides that whoever commits sexual assault on his own wife, who is
living separately under a decree of separation or under any custom or usage, without her
consent, shall be punished with imprisonment of either description, for a term which shall not be
less than two years but which may extend to seven years, and shall also be liable to fine.
3) Also the substituted section 376 C provides that:

Whoever,
(a) being in a position of authority or in a fiduciary relationship; or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or other place of custody established by
or under any law for the time being in force, or a womens or childrens institution; or
(d) being on the management of a hospital or being on the staff of a hospital, and abuses such
position or fiduciary relationship to induce or seduce any person either in the first mentioned
persons custody or under the first mentioned persons charge or present in the premises and
has sexual intercourse with that person, such sexual intercourse not amounting to the offence of
sexual assault, shall be punished with rigorous imprisonment of either description for a term
which shall not be less than five years but which may extend to ten years, and shall also be
liable to fine.
This provision reinforces the terms of new section 376(2) and perhaps is added to highlight the
gravity of situation where the perpetrator is a person in a position of trust and authority.
4) The provision added under section 376D provides Where a person is sexually assaulted
by one or more persons constituting a group or acting in furtherance of a common intention,
each of those persons shall be deemed to have committed the offence of sexual assault,
regardless of gender and shall be punished with rigorous imprisonment for a term which
shall not be less than twenty years, but which may extend to life and shall pay
compensation to the victim which shall be reasonable to meet the medical expenses and
rehabilitation of the victim
This provision would make liable even a female person for the offence of sexual assault if she is
a part of the group of persons committing the act.
5) Further section 376 E has been added and section 509 amended to stand as follows:
376E.
Whoever has been previously convicted of an offence punishable under section 376 or
section 376A or section 376C or section 376D and is subsequently convicted of an
offence punishable under any of the said sections shall be punished with imprisonment
for life, which shall mean the remainder of that persons natural life or with death..
Also,
In section 509 of the Penal Code, for the words shall be punished with simple
imprisonment for a term which may extend to one year, or with fine, or with both, the
words shall be punished with simple imprisonment for a term which may extend to three
years and shall also be liable to fine shall be substituted.
The Ordinance has further amended sections of Cr PC to provide that whenever an
offence the above discussed provisions (i.e. sexual offences) is reported the statement
of the victim if a woman will be taken by a woman police officer and legal assistance be
provided to her.
It is further provided that where the victim is temporarily or permanently mentally or
physically disabled, then such information shall be recorded by a police officer, at the
residence of the person seeking to report such offence or at a convenient place of such
persons choice, in the presence of a special educator or an interpreter, as the case may
be;
(b) the recording of such information may be videographed.
(c) the police officer shall get the statement of the person recorded by a Judicial
Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.
The changes in law are a welcome change however, it remains to be seen how much
deterrent effect it will have on the society.
Compensation u/s 357 Of Cr.PC
This section has been provided in Cr.P.C. , wherein the Court levies fine over the
convicts, it can also grant certain portion of fine or full compensation to the victim. As far
as the new law is concerned:
State government to provide for compensation to the victim, besides the compensation
being given by Court through fine against the convict.
b. The hospitals (government/private) shall provide immediate assistance to the
victim in cases of rape, free of cost and inform the police about the offence.
However we need to understand that this form of compensation is only limited to Gang
Rape and Acid attack cases. The other rape cases have been neglected without any
justified rationale at the mercy of the court to provide fine. Fine levied by the Courts is
discretionary and as per latest judgement of Supreme Court, the right of victim is only
limited to the extent that Courts may discuss the question of compensation to the victim
in form of fine. If court is not satisfied to grant fine they have to give reasons in recording
but in no way they are bound to give compensation from the Fines.
DEATH PENALTY IN RAPE CASES
After the Delhi Gang Rape Incident, there was hue and cry for including death penalty as
a punishment in Sec 376 but inspite of this neither Justice Verma Committee
recommended death penalty in offence of rape nor it was incorporated in the Ordinance
Act,2013 and thereafter in Amendment Act,2013. The Parliament did not include death
penalty under Sec 376 because the legislature were of the opinion that it should be
awarded only in cases of rarest of rare laid down in case of Bachan Singh v. State Of
Punjab[7] when the alternative option is foreclosed. In the case of Mohinder Singh v.
State of Punjab[8], the Court did not punished the accused with death penalty, inspite his
act being heinous in nature, because there was potential of convict to rehabilitate and
reform. The Court further was of the opinion that the alternative punishment of life
imprisonment would not meet the end of justice, therefore following the case of Swamy
Shraddananda v. State Of Karnataka[9], the court awarded him imprisonment till the last
breath of life so that the ends of justice could be met.
CRIMES AGAINST WOMAN: VIOLATION OF 21 & 19
There is a need for the more proper and reasonable laws to deal with the crimes against
women. These crimes themselves violate the very basic fundamental rights guaranteed
to a woman under the Constitution. These crimes hit at the very base of our Constitution,
as India as State fails to guarantee these rights.
Art. 21 talks about Right to Life and Liberty. It has been established by various
case-laws from Habeas Corpus case[10] to Maneka Gandhi case[11]that liberty is very
important feature towards life of an individual. Life does not mean a mere animal
existence[12] and as such this Article makes it obligatory for the State to provide a
better and more secure society to our Women. A woman who is always under a threat
for her life and physical body, then this law would become meaningless to her. Again the
threats of the present society are violative of rights guaranteed under Article 19(1)(f),
which is free movement through the territory of the country. It would not be wrong to say
that a woman is not safe even in walking on street in broad daylight, the very law
 enshrined under this article is made useless.
The life of Indian woman in such a threatening society would be safer only in a cage to
protect her from perpetrators, thus giving her an animal existence. We need to have
stricter laws to ensure full liberty to women.
Conclusion
Privacy, crime, and safety of women are intricately linked in any legal system. An
essential part of the security of citizens is the safety of their privacy and personal
information. If any legal system does not protect the privacy both of body and of
information of its people, there will always be insecurity in such a system. With the
recent debates on womens safety, several crucial privacy and security issues have been
raised, such as the criminalization of voyeurism and stalking, which is a huge boost for
privacy rights of citizens in India, and it is hopeful that the government will continue the
trend of considering privacy issues along when addressing security concerns for the
state.

the Criminal Law Amendment Bill 2013

The Criminal Law (Amendment) Bill, 2013, was made into law on April 3, 2013. Several
provisions under the Act differ from the provisions in the ordinance. Under the Act, unlike
in the Ordinance, the terms or watches or spies on a person in a manner that results in a
fear of violence or serious alarm or distress in the mind of such person, or interferes
with the mental peace of such person are not included as a part of the offence of
stalking. Hence, the offence is limited to the physical act of following or contacting a
person, provided that there has been a clear sign of disinterest, or to monitoring the use
by a woman of the internet, email or any other forms of electronic communication.
Hence, from the confusing language of the provision, it would seem that the offence of
stalking related to monitoring of activities of a woman is restricted to the monitoring of
online communications, and not physical acts. The caveat of such monitoring having to
cause serious alarm, distress or interference with the mental peace of the victim is also
removed. The removal of unwaranted intrusion through watching or spying of a person,
and indeed, the removal of any subjective test to determine the effect of stalking is a
departure from stalking provisions accross the world, and is a setback for individual
privacy, because stalking per se is a privacy offence, relating not only to the physical
interference but also the mental harassment it causes to the victims.
The provision has also increased the puinishment for the crime in the first offence to upto
three years, and subsequently to upto five years. Further, the provisions sought to be
included within Section 53A and Section 376 of the Indian Evidence Act are now
included in Section 146 of the Act.
Passed by the Lok Sabha on 19 March, 2013 and by the Rajya Sabha on 21 March,
2013
Presidents assent on 2 April, 2013 and deemed to have come into force from 3rd day
of February,2013.
Provides for amendment of Indian Penal Code,
 1860, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 and the
Protection of Children from Sexual Offences Act, 2012.
It amends sections 100, 228A, 354, 370, 370A,375, 376, 376A, 376B, 376C, 376D and
509 of Indian Penal Code, 1860.
It also inserts new sections 166A, 166B, 326A,326B, 354A, 354B, 354C and 354D in
Indian Penal Code, 1860.
It also amends sections 26, 54A, 154, 160,161, 164, 173, 197, 273, 309, 327 and First
Schedule of Code of Criminal Procedure, 1973.
It also inserts new sections 357B and 357C of Code of Criminal Procedure, 1973.
It also amends sections 114, 119 and 146 of Indian Evidence Act, 1872. It also inserts
new sections 53A in Indian Evidence Act, 1872.
It also amends section 42 of Protection of Children from Sexual Offences Act, 2012.
Key Issues and Analysis:
Under the Ordinance, penalties for certain offences are inconsistent. For
instance, minimum punishment for gang assault by private persons is 20
years, and for gang assault by a police officer is 10 years.
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 Bill and 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.
The changes made in the Act in comparison
with the Ordinance is listed as follows:
Acid attack: Fine shall be just and reasonable to meet medical expenses
for treatment of victim, while in the Ordinance it was fine up to Rupees 10
lakhs.
Sexual harassment: Clause ( v) any other unwelcome physical, verbal or
non-verbal conduct of sexual nature" has been removed. Punishment for
offence under clause (i) and (ii) has been reduced from five years of
imprisonment to three years. The offence is no longer gender-neutral,
only a man can commit the offence on a woman.
Voyeurism: The offence is no longer gender-neutral, only a man can
commit the offence on a woman.
Stalking: The offence is no longer gender-neutral, only a man can commit
the offence on a woman. The definition has been reworded and broken
down into clauses, The exclusion clause and the following sentence has
 been removed "or watches or spies on a person in a manner that results in
a fear of violence or serious alarm or distress in the mind of such person,
or interferes with the mental peace of such person, commits the offence
of stalking". Punishment for the offence has been changed; A man
committing the offence of stalking would be liable for imprisonment up to
three years for the first offence, and shall also be liable to fine and for any
subsequent conviction would be liable for imprisonment up to five years
and with fine.
Trafficking of person: "Prostitution" has been removed from the
explanation clause
Rape: The word sexual assault has been replaced back to rape. The
offence is no longer gender-neutral, only a man can commit the offence
on a woman. The clause related to touching of private parts has been removed.
Criticisms
The Criminal Law (Amendment) Act, 2013 has been strongly
criticised by several human rights and women's rights organisations
for not including certain suggestions recommended by the Verma
Committee Report like, marital rape, reduction of age of consent,
amending Armed Forces (Special Powers) Act so that no sanction is
needed for prosecuting an armed force personnel accused of a
crime against woman.
Several provisions under the Act differ from the provisions in the
ordinance. Under the Act, unlike in the Ordinance, the terms or
watches or spies on a person in a manner that results in a fear of
violence or serious alarm or distress in the mind of such person, or
interferes with the mental peace of such person are not included
as a part of the offence of stalking. Hence, the offence is limited to
the physical act of following or contracting 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