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The Criminal Law (Amendment) Act, 2018: An Overview

Introduction

A country’s law should develop with the progression of time and the progression of time. In troublesome times, as in any respectful society, society requires more thorough and brutal guidelines, however the topic of how much stricter and more rigid a law should remain with regards to making a specific regulation. In India, a far-reaching and comprehensive way to deal with the laws is expected to oversee sexual offenses. A decent code ought to have three attributes, as per Macaulay, the planner of the Indian Penal Code: accuracy (liberated from vagueness), conceivability (simple clear by normal individuals), and it ought to be a product of legislature law-making (least judicial intervention).1

The world is dynamic; changes happen in light of cultural prerequisites, as well as the overall individuals who have been involved in a situation in that society. For instance, there was basically no law to manage cyber-wrongdoings in the eighteenth century, yet because of innovative enhancements and dynamic perspectives, the Cyber Law grew simply. Because of the startling flood in the number of cyber dangers, ransomware, and other cyber offenses, we understood that law to address these advanced wrongdoings was required. Essentially, the Criminal Law Amendment Bill 2018 proposes to change key bits of the Indian Penal Code, the Criminal Procedure Code, and the Public Order and Security Act, as well as increment the base discipline for assault, including the age part.

Before the 2018 Amendment Act, the Criminal laws has been revised in the year 2013, concerning the previously mentioned issues as they were. The amendment in the criminal laws was required after the Nirbhaya case. Nirbhaya, a 23-year-old paramedical understudy, was violently gang-raped, assaulted, and tortured in a moving transport on the evening of December 16, 2012. She passed on from her wounds on December 28, 2012, in the wake of battling for her life. This deplorable demonstration ignited an impressive shock in the nation over. The public demanded that the charged be hanged, yet in addition that the nation’s assault laws be changed. Following the Nirbhaya episode on December 23, 2012, a three-part council was framed, drove by Late Justice J.S. Verma, previous Chief Justice of the Supreme Court of India, with Justice Leila Seth, previous Judge of the High Court, and Gopal Subramanium, previous Solicitor General of India, to prescribe changes to the Criminal Law to the Legislature to make assault laws and different violations against ladies more contentious. Accordingly, the Criminal Law Amendment of 2013 was sanctioned.2

Indeed, even after the draconian measures authorized by The Criminal Law (Amendment) Act, 2013 in the fallout of the Nirbhaya case, the general public was again stunned by a rate in Kathua, Jammu, and Kashmir. An 8-year-old young lady capitulated to a gang’s desire and was sexually assaulted and killed, therefore. This sickening episode fills in as a suggestion to society that the assault culture has continued as well as weavers in our general public, where such violations are finished without risk of punishment. Because of the far-reaching announcing and public objection encompassing the matter, parliament had to take on “restorative measures.” The Criminal Law (Amendment) Ordinance, 2018, was accordingly supported by the bureau and endorsed by the President on April 21, 2018. The announcement hardened the punishments for people blamed for assaulting youths, including capital punishment.

The Criminal Law (Amendment) Act, 2013

The Criminal Law (Amendment) Act, 2013, was approved by the Lok Sabha on March 19, 2013, and the Rajya Sabha on March 21, 2013. The Bill was signed by the President on April 2, 2013, and it was deemed to take effect on February 3, 2013. On 3 February 2013, India’s President, Pranab Mukherjee, issued an Ordinance to that effect.

The Criminal Law (Amendment) Act of 2013 updated and added new sections to the Indian Penal Code (IPC) relating to numerous sexual offenses. Certain acts were expressly recognized as offenses under the Act, which were dealt with under relevant laws. The Indian Penal Code has been amended to include new offenses such as acid attacks, sexual harassment, voyeurism, and stalking.3 The amendments made by the Act are mentioned as follows:

  1. Section 354A
    Previously, a man who makes unwanted sexual advances, forcefully shows pornography, or demands/requests sexual favors from a woman committed the offense of sexual harassment simpliciter under section 354A, which is punishable by up to three years in jail. Sexual harassment, which is punishable by up to a year in prison, also includes making sexually tinged remarks.
  2. Section 354B
    If a male assaults or uses unlawful force against a woman, or aids or abets such an act with the goal of disrobing or compelling her to remain naked in a public place, he commits an offense under section 354B, which carries a sentence of three to seven years in prison. This section deals with a fairly specific offense, and it complements and adds to the clause dealing with outraging a woman’s modesty. This is a good provision, given the numerous examples of women being stripped in public as a kind of punishment, mostly in impoverished communities, as reported in the news.
  3. Section 354C
    Any man who views or takes the image of a woman engaged in a private act in circumstances where she would normally expect not to be viewed either by the perpetrator or by any other person at the perpetrator’s command, and then disseminates such image is guilty. Such a person is liable under Section 354C. A first conviction carries a sentence of imprisonment of not less than one year, but not more than three years, and a fine, while a second or subsequent conviction carries a sentence of imprisonment of either description for a term of not less than three years, but not more than seven years, and a fine.
  4. Section 354D
    Under this new section, stalking has been designated as a specific offense. If a male stalks a woman, he could face a sentence of up to three years in jail for the first offense and up to five years for consecutive offenses. However, there are some exceptions, such as if a person can establish that the actions were taken in accordance with the law, were reasonable, or were necessary to avoid a crime. According to Section 354D, the crime of stalking was a gender-neutral offense, meaning that it may be committed by either a man or a woman.
  5. Section 375
    Under the new section, a man is considered to have committed rape if:
    (a) Penetration of penis into vagina, urethra, mouth, or anus of any person, or making any other person do so with him or any other person;
    (b) Insertion of any object or any body part, not being a penis, into the vagina, urethra, mouth, or anus of any person, or making any other person do so with him or any other person;
    (c) Possession of any bodily part with the intent of inducing penetration of the vagina, urethra, mouth, anus, or any other body part of the individual, or compelling the subject to do so with him or another individual.
    (d) Applying the mouth to a woman’s penis, vagina, anus, or urethra, or causing another person to do so with him or another person.;
    (e) Ultimately, contact the vagina, penis, anus, or bosom of the individual or makes the individual touch the vagina, penis, anus, or bosom of that individual or some other individual.

The 2013 Act expands the meaning of rape to incorporate oral sex and the inclusion of a thing or other real part into a lady’s vagina, urethra, or anus. Rape carries a minimum sentence of seven years in jail and a maximum sentence of life in prison. If a police officer, medical officer, army member, jail officer, public officer, or public servant commits rape, he faces a minimum sentence of ten years in prison. If the victim dies or goes into a vegetative state as a result of the rape, the victim is sentenced to life in prison, with the possibility of death. Under the newly revised provisions, gang rape now carries a minimum sentence of 20 years in prison.

The new amendment clarifies that “consent” is an unequivocal agreement to engage in a specific sexual act; it also clarifies that “consent” does not entail “no resistance.” Non-consent is a crucial component in the commission of rape. As a result, the notion of consent is crucial to the outcome of a rape trial, and it has been used to humiliate and discredit rape victims.4

Need for Criminal Amendment Act

According to research by the “Thomson Reuters Foundation,” sexual violence, human trafficking, child labor, underage marriage, and female foeticide make India the most dangerous country for women. In 2012, the National Record Crime Bureau (NRCB) documented 24,923 rape crimes across India, according to its annual report for the year 2013. The culprit was discovered to be a relative of the victim in 98 percent of the cases. Assault has a very low per capita rate and, as a rule, it goes unreported. However, rape instances such as the Kathua rape case and the Unnao rape case sparked considerable public resentment. And a sense of censure leads to media attention and public protests in the name of justice. As a result of the increased willingness to disclose rape incidents, the Indian government has made revisions to the current penal legislation. As a result, the Criminal Amendment Act was absolutely necessary.5

Criminal Law (Amendment) Act, 2018

On July 23, 2018, the Ministry of Law and Justice introduced the Criminal Law Amendment Bill 2018, which was passed by the Lok Sabha and Rajya Sabha on July 30 and August 6, respectively. This law attempts to address the problems of sexual assault victims and to enforce the death sentence for anyone convicted of raping a girl under the age of 16 or 12.6 It repealed the President of India’s April ordinance and made changes to the following laws:

  • IPC 1860
  • CrPC 1973
  • Evidence Act 1872
  • Protection of Child from Sexual Offences (POCSO) 2012

Salient Feature of the Act

This Act makes significant reforms to our penal laws to protect girls from the horrible crime of rape. The following are the details7:

  • Rape offenders must serve at least ten years in prison; formerly, the minimum sentence was seven years.
  • Anyone who rapes a girl under the age of 16 will be sentenced to a minimum of 20 years in prison.
  • If a person rapes a girl under the age of 12, he or she will be sentenced to a minimum of 20 years in jail, a maximum of life in prison, or the death penalty.
  • If the rape crime is committed against a girl under the age of 16, the accused will not be given anticipatory bail.
  • Convicted persons are required to pay the victim, with the funds going toward the victim’s medical expenses and rehabilitation. And the remuneration will be fair and equitable.
  • If a police officer commits rape, he or she will be sentenced to a minimum of 10 years in jail, regardless of where the crime takes place.
  • In the case of rape, the police are required to conclude the investigation within two months of the FIR being filed.
  • After 6 months, the deadline to dispose of the rape appeal begins.
  • The law stipulates that anyone guilty of gang rape of a woman under the age of 16 will be sentenced to life in prison and fined.
  • Anyone convicted of gang rape of women under the age of 12 faces a sentence of life in prison, a fine, or the death penalty if they are under the age of 12.

Amendments made in IPC

Inserted Sections

I. Section 376AB

  • This section was inserted just after Section 376A and states that anyone who commits rape with a woman under the age of 12 years shall be punished with rigorous imprisonment for a term of not less than 20 years, and it may extend to life imprisonment, implying that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or death penalty.
  • Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation.
  • Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

II. Section 376DA

  • After Section 370D, the 376DA section was added, which states that if a woman under the age of sixteen is raped by one or more people in a group or does something for a common purpose, each of those people is deemed to have committed the crime of rape and shall be punished with life imprisonment, which implies that what he has done is completely illegal and off-base, or in a legal sense, a reminder for that person’s natural life. A
  • Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation.
  • Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

III. Section 376DB

  • This section states that if a woman under the age of 12 years is raped by one or more people acting in concert for a common purpose, each person is deemed to have committed the crime of rape and is punished with life imprisonment, which implies that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or death penalty.
  • Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation.
  • Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

Amended Sections

I. Section 166A
This provision comprises three clauses that deal with public servants violating lawful orders. Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB are substituted for clause (c).

II. Section 228A
Subsection (1) of this section was replaced with Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB, which deal with the disclosure of the identity of the victim of certain crimes.

III. Section 376
This section deals with the rape penalty and sub-section 1 was replaced with “anyone commits an offence of rape shall be punished for a term not less than ten years or which may extend to life imprisonment and with fine.”
Subsection 2 clause (a) sub-section 1 has been repealed as a result of this alteration to section 376. After sub-section 2 of section 376, a new sub-section “3” was added, which states that anyone who commits rape with a woman under the age of sixteen years shall be punished with rigorous imprisonment for a term not less than 20 years, and may extend to life imprisonment, implying that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or detention.

Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation. After sub-section 2 of section 376, a new sub-section “3” was added, which states that anyone who commits rape with a woman under the age of sixteen years shall be punished with rigorous imprisonment for a term not less than 20 years, and may extend to life imprisonment, implying that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or detention.

Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation. Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

Amendments made in the Indian Evidence Act, 1872

Two sections of the Indian Evidence Act of 1872 are amended by the Criminal Amendment Act of 2018. The following are some of them:

A. Section 53A

  • This section substitutes Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB, which deal with proof of character or previous sexual experience that isn’t applicable in some circumstances.

B. 146th section

  • When a witness is cross-examined, he may be asked any question that tends to answer the question hereinbefore referred to, in addition to the question hereinbefore referred to-
    a) Attempt to verify the validity.
    b) To figure out who he is and where he stands in life.
    c) To protect his reputation, harming his character, even if the answer does not directly or indirectly implicate him, could result in a penalty or forfeiture.
  • 376AB, 376B, 376C, 376D, 376DA, and 376DB were substituted by section 376AB, 376B, 376C, 376D, 376DA, and 376DB.

Amendments made in CrPC

  1. Section 173
    Subsection (1A) of this section was amended to read: “An offense under section 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E of the Indian penal code shall be completed within two months.”
  2. Section 374
    When an appeal is filed against a sentence given under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB, or Section 376E of the Indian penal code, the appeal shall be disposed of within six months of the date of filing.
  3. Section 377
    When an appeal is filed against a sentence given under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB, or section 376E of the Indian penal code, the appeal shall be disposed of within six months of the date of filing.
  4. Section 438
    After sub-section (3), a new sub-section (4) was added to Section 438 of the Code of Criminal Procedure, which states that nothing in this section applies to any case involving the arrest of a person on suspicion of having committed an offense under subsection (3) of Section 376, 376AB, 376DA, or 376DB of the Indian penal code.
  5. Section 439
    After sub-section (a) (1), another provision was added to Section 439 of the CrPC, which states that “the high court and the session court shall, before granting bail to a person accused of an offense triable under sub-section (3) of Sections 376, 376AB, 376DA, 376DB, give notice of the applicant for bail to the public prosecutor within a period of 15 days from the date of receipt of such notice to the public prosecutor.” The presence of the informant or any person authorized by him is necessary during the hearing of the application for bail to the person under sub-section (3) of sections 376, 376A, 376DA, and 376DB, which was inserted after sub-section (1) of the CrPC.

Amendments made in POSCO Act

Section 42 of the POCSO Act, 2012 has been amended by the Criminal Amendment Act of 2018. Sections 376A, 376C, and 376D of the Indian penal code have been replaced with 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB of the Indian penal code.

Conclusion

In the wake of checking on various adjustments and recently remembered Sections for the IPC, CrPC, Indian Evidence Act, and POCSO Act, as may be obvious, the criminal amendment demonstration of 2018 is simply planned to safeguard women from offensive wrongdoing: sexual attack. As the unjust pace of sexual attacks has expanded, so has the number of people who are truly cruel. Most of the assault cases go unreported, and the absence of legitimate legitimacy, as well as cultural elements, make boundaries to the casualty’s admittance to justice. Nonetheless, subsequent to rolling out important improvements to these reformatory laws, the Government of India tries to give government assistance and a feeling of safety for all women, as it is essential considering ongoing cases, for example, the Kathua assault and Unnao assault cases, which have caused a lamentable circumstance for women in which women accept they are undependable even in their own homes, as the blamed is quite often a family member or a known individual of the person in question, so there is an outright need.

References:

  1. https://www.legalserviceindia.com/legal/article-1527–an-analysis-of-criminal-law-amendment-act-2018.html
  2. https://blog.ipleaders.in/comparison-rape-laws-criminal-amendment-act-2013/
  3. https://www.lawctopus.com/academike/criminal-law-amendment/
  4. https://prsindia.org/billtrack/the-criminal-law-amendment-bill-2013
  5. https://blog.ipleaders.in/criminal-law-amendment-act-2018-2/
  6. https://prsindia.org/billtrack/the-criminal-law-amendment-bill-2018#:~:text=In%20March%202013%2C%20Parliament%20passed,in%20cases%20of%20repeat%20offenders
  7. https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf

This article is written by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

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