Nirbhaya and changes in the law

This article has been written by Niti Shah. Picture credits to socialnews.xyz

Facts of the Case

December 16, 2017, will always be remembered because of the gang-rape of a paramedical student. She wanted to become a physiotherapist. The incident she went through had triggered nationwide protests which also led to the foundation of new laws on crimes against women. On December 16, 2012, the 23-year-old, who is known as Nirbhaya, was gang-raped by six men on a moving bus. She was assaulted with an iron rod and her intestines were pulled out, the doctors had said she died at a hospital in Singapore 13 days later. Of the six rapists, one was a juvenile who was sentenced for 3 years at a probation home.Among all of them the prime accuse was Ram Singh,who was found hanging in his cell at Delhi’s Tihar jail 3 months after his arrest. The other four convicts were sentenced to death on September 13, 2013, by the Delhi High Court. The sentence was upheld by the Supreme Court in May 2017. The review petition of the convicts will be heard by the Supreme Court in January. This incident had gathered so much attention that it was covered by international media and was condemned by the United Nations Entity for Gender Equality and the Empowerment of Women, who were called on by 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 public services and to make sure women’s lives are much more safe and secure”. Public protests took place in Delhi on a very large scale where many thousands of protesters gathered together and clashed with security forces. Similar protests took place throughout the country.

Changes in the Legal System

The Criminal Law (Amendment) Act, 2013 which is named after Nirbhaya, the gang rape victim and it is called as the Nirbhaya Act which is an Indian legislation passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013, which provides for amendment of the Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offenses. The Bill has received Presidential approval on 2 April 2013 and it came into force from 3 April 2013. It was originally an Ordinance communicated by the President of India, Pranab Mukherjee, on 3 April 2013, in light of the nation wide protest in the 2012 Delhi gang-rape case. While the apex court upheld the death penalty to the convicts in the brutal rape and murder case of Nirbhaya.

What is Nirbhaya Fund?

The Nirbhaya Fund was created to be utilized for projects specifically designed to improve the safety and security of women in public places. The fund was established in 2013 but it gathered pace only in 2015. The key schemes under which the states have been allocated money which included Emergency response support system, Central victim compensation fund, Cybercrime prevention against women and children, Mahila police volunteers, and Universalization of helpline number.

What is Nirbhaya Act?

It amended and inserted new sections within the IPC about various sexual offenses. New offenses like acid attack, harassment, stalking are incorporated into the IPC.
It expands the definition of rape to incorporate many different ways that amount to rape.
The new amendment defines ‘consent’, to mean an unequivocal agreement to interact during a particular sexual act; clarifying further, that the absence of resistance won’t imply consent.
One of the foremost notable omissions of the Act is its failure to criminalize marital rape. It’s an exception to section 375, as long as the wife isn’t less than 15 years aged.

Amendments in Law

After the horrific Nirbhaya incident, many issues came under the lens and various amendments were brought out in the Criminal laws of India in the year 2013. The Criminal Law Amendment Act of 2013 came into the picture which is popularly called Nirbhaya Act. This Act made substantive changes in the definition of ‘rape’ under the Indian Penal Code, 1860 (“IPC”), wherein section 375 was widened to include acts other than forcible penetration or sexual intercourse. Further, several amendments were made in the IPC, including:

Section 166A was added for punishing public servants who refuse to record an FIR in cases of specified crimes against women including rape.
A new provision was incorporated under section 166B punishing those in charge of a public or private hospital for refusal to provide free medical treatment for victims of rape
the scope of section 376(2) was expanded to include rape committed by a member of armed forces deployed in an area by the Central or a State Government in such area
separate section i.e. 376D for the offenses of gang rape with higher punishment was added.
The other statutes including the Code of Criminal Procedure, 1973 (CrPC), and the Evidence Act, 1872 were also amended to bring them in consonance with the punishments.
In CrPC, section 154(1) that provided for recording of an FIR was amended to include that in certain offenses against women (including rape), the FIR has to be recorded by a police officer, at her residence or a place of her choice
Section 164 (5A) was added in the CrPC which made it mandatory for the Judicial Magistrate to record the statement of the victim, as soon as the commission of the offense was brought to the notice of the police. Further, an explanation was added to section 197(1) of the CrPC which provides the prosecution of judges and public servants.

Effects on the Judicial System

As the memories of the Nirbhaya case waned from the minds of people, the nation mourned yet another rape victim when another horrific incident from Hyderabad came to light in 2019, where a 27-year old veterinary doctor was brutally gang-raped and thereafter burnt alive. The incident elicited outrage amongst the people demanding speedy justice unlike Nirbhaya, where the case was being held up in court for 7 years. Many demonstrations were organized across the country demanding justice. In the meantime, in a follow-up incident in the Hyderabad case, news erupted that the four suspects in the case were killed by the Hyderabad Police in an encounter in the police custody. Expectedly, the said act of police was celebrated by the people of India. Though the speedy justice delivered to the victim by way of such encounter was hailed all over the nation including the victim’s family, the family still claimed that police could have been more vigilant and responsive when the father of the victim had approached them on the same day around 11 p.m. but the police officials allegedly wasted time on the applicability of jurisdiction in ascertaining the concerned police station and in delaying the investigation on the unfounded process. However, it is pertinent to note that taking law and order in our hands without a fair trial to the accused is truly no solution at all. Though for a limited frame of time, we may celebrate the so-called speedy ‘justice’ to justify the act, the question remains – how does the police differentiate between a suspect and a convict? It is important to understand and appreciate the primary principle of criminal law is that every man is presumed innocent until proven guilty. The pressure by the public for speedy justice may lead to unfair ways of punishing the suspects. Justice cannot be meted out just to please the public at large, it has to go with the touchstone of a fair trial.

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