INDIAN LAW INSTITUTE

LL.M. (2018-19)

October 10, 2018

Presenter: Anil Kumar Shukla

Moderator: Kushagra Aman

Discussant 1 Prashant

Discussant 2: Nadeem.

I. Background

The Criminal law amendment act, 2013 was brought as a deterrent to prevent sexual crimes
against women but despite these amendments the sexual violence against the women has not
decreased. The most troublesome trend is the growing instances of sexual violence and rape
against the minors. The massive outrage over the brutal gang rape and murder of an eight-year-
old in Kathua as well as the rape of a 16-year-old in Unnao sent the government scurrying for
cover . This massive public outrage and the public demand of awarding death penalty to the
perpetrators forced the government to bring the Criminal Law (Amendment) Ordinace, 2018 on
21st April which was later replaced by Criminal Law (Amendment ) Act, 2018 by the legislature
on 14th August 2018. This amendment brought a change in the Indian penal code as well as the
CrPC , the Evidence Act and POCSO Act.

II. The Criminal Law (Amendment) Act, 2018

The amendment introduced sterner punishments for rape in general as well as for the rape of a
minor girl child. The minimum punishment for rape has been increased from 7 years to 10 years
while the newly introduced sections 376AB, 376DA and 376DB where a maximum punishment
of death penalty can be awarded for raping a girl child below 12 years of age and a minimum
punishment of 20 years which can extend upto life imprisonment, can be awarded for
committing a rape on a girl below 16 years of age. Amendments have also been brought to
Criminal Procedure code regarding the duration of completion of trial in rape cases in general as
well as in rape cases of minor girls. The provision for granting anticipatory bail has also been
abolished where the alleged offence of rape is committed on a girl child below 16 years of age.

The Criminal Law (Amendment) Act, 2018 has been received with a mixed reaction throughout
the country. While the population at large have heralded the tougher stance of government
against child sexual abuse a welcoming one the legal fraternity is wary of its adverse
consequences as it seems that the “Band-aid legislation” is going to create more problems than it
solves. Concerns have been raised over introduction of death penalty in the amendment as it can
affect the survival rate of the victims. It has also been pointed out that the Amendment is not
gender neutral as the newly introduced categories of offences are applicable only in the case
when the victim is a girl.

ISSUES

1. Whether incorporation of death penalty clause in Criminal Law (Amendment) Act, 2018
is a violation of proportionality principle and justified?
2. In enhancing the punishment for rape of girl under age 16 whether the amendment is
discriminatory and hence violating the Art 14 of Constitution of India?
3. Whether the Criminal Law Amendment Act, 2018 by reducing the trial period and
investigation period as well as removing the provision of anticipatory bail violates the
principles of fair trial?

SUGGESTED READINGS

1. The Criminal Law (Amendment) Act, 2018 available at

https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018.pdf
2. Protection of Children from Sexual Offences Act (POCSO Act), 2012.
3. Justice Verma Committee Report (suggestions as to making rape a gender neutral
offence) available at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%2
0committe%20report.pdf
4. International law and abolition of death penalty available at
https://scholarlycomons.law.wlu.edu/cgi/viewcontent.cgi?article=1517&context=wlulr.
5. 2018 Has Only Gotten Worse For Children in India available at
https://www.thequint.com/voices/opinion/minor-rapes-in-india-data
6. Is India ready for gender neutral laws? available at
https://indianexpress.com/article/india/is-india-ready-for-gender-neutral-laws-4895122/

7. Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law Economic and
Political Weekly Vol. 37, No. 9 (Mar. 2-8, 2002), pp. 844-847 Published by: Economic
and Political Weekly
8. Need for gender neutral laws in India by Pratibha Ahirwar available at
http://jurip.org/wp-content/uploads/2018/04/Pratibha-Ahirwar.pdf
9. Male Child Sexual Abuse remains ignored in India available at
https://www.thecitizen.in/index.php/en/newsdetail/index/7/13906/male-child-sexual-
abuse-remains-ignored-in-india