Is the Criminal (Amendment) Act, 2013 - The Right Weapon to fight against Rape?

1. INTRODUCTION

A product of the aftermath of the brutal ‘Delhi Gang Rape’ of 16th December 2013 that shook the nation, the Criminal (Amendment) Act, 2013 is the right weapon to fight against rape. It is better than its predecessor. But it presents a bias in favour of the victim and at some places even tends to reverse the burden of proof in a rape trial, shifting it on the defence. The amendment has its origin in the demands of the society for a better and safe environment for women and in its deep anguish against the despicable crime of rape.

2. AMENDMENTS TO THE INDIAN PENAL CODE, 1860 (45 OF 1860)

2.1  Complete overhaul of S. 375

While the earlier definition of rape was confined to penal-vaginal intercourse between a male and a female, the new definition has brought the following acts into its ambit, commission of which under the circumstance prescribed by the section would constitute rape;

a. Penile-Oral/Anal/Urethral intercourse between a male and a female,

b.  Insertion of a foreign object or any part of body other than penis into the vagina, urethra or anus of a woman,

c.  Manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman,

d.  Application by a man of his mouth to the vaginal, anus, urethra of a woman

The provision regarding ‘manipulation of a part of the body of a woman’ would mean that even if the act of penetration is not performed by the man, he shall still be liable to be punished for rape. Moreover, all the acts mentioned in Section 375 which constitute rape also include any act on the part of the man whereby he makes the woman to do those acts with any other person. For example- If ‘A’ has not even touched a woman but has forced her to go through a penile-vaginal intercourse with another person ‘B’, ‘A’ shall also be liable and punished for rape.

A woman who is unable to communicate consent has been afforded a special protection which might be misused. Even if she gives consent for any of these acts through gestures and the male only upon such consent performs such acts, she shall still be entitled to lodge an FIR against the male person going by the new provision.[1]  

The negative aspect of the amendment is that it increases the age of consent to 18 years of age from 16 years of age. If the age of consent can be 16 in 1860, then it is but obvious that Indian Society has become very open about sexuality ever since, and thus the age of consent should have been kept intact, if not reduced, to the age of 16 only. An illustration of the misuse of this provision would be a mentally sound girl of age 16 or 17 entering into a voluntary sexual relationship with a male can at any time lodge an FIR against such person for having raped her. In Indian curriculum, where we study about reproduction when we are 14 years of age and girls attain puberty by the age of 16, it is a retrograde provision brought on the statute book by this amendment. Reality and not the morality of having sexual relations at the age of 16 or 18 should have been considered by the Parliament while drafting this provision.

The definition of consent which has been qualified by a proviso rendering the sole fact of non-resistance by the woman to the act of penetration as insufficient for establishing consent by defence would on one hand lend more teeth the rape laws while on the other, deprive the defence of a very effective reliance it has for long placed on the medical evidence for establishing non-resistance and then subsequently deducing victim’s consent from it.

2.2  Expansion of the scope of rape- Marital Rape-S. 376B[2]

Earlier, sexual intercourse or sexual acts by a man with his wife, the wife being under fifteen years of age, was the sole case of rape between married persons but now section 376B has made a sexual intercourse between married persons an offence if it is done under following circumstances;

(a) The wife is living separately under a decree of separation or otherwise, and

(b) The wife has not consented to the act of sexual intercourse.

The proposition advances the mindset that marriage doesn’t give a freeway to the husband over the body of his wife in all the circumstances, and aims to protect the wishes and dignity of a married woman also.

2.3  Deterrence by enhanced punishment generally- S.376

The maximum punishment for the offence of rape which as it stood earlier was ten years imprisonment or life imprisonment. Now, it has been replaced with life imprisonment only. Moreover, the nature of the imprisonment has been changed from simple to rigorous. The same punishment is applicable to marital rape also.

2.4  Deterrence by enhanced punishment in specific cases of rape- S.376

Commission of rape in certain specific cases will lead to the same punishment as was stipulated prior to the amendment, the only addition being the meaning of life imprisonment. Life imprisonment herein would mean imprisonment for the remainder of that person’s natural life.

It remains to be seen whether the express stipulation in the section that life imprisonment would mean imprisonment for the remainder of that person’s natural life would override the state’s powers of commutation under S. 433 of the Criminal Procedure Code, 1973.

2.5 Strengthening of the Pre-amendment provisions governing specific cases of rape warranting enhanced punishment- S.376

(1) Earlier a public servant or a person on the management or staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, who committed rape on any inmate of such jail, remand home, place or institution used to be liable for enhanced punishment only if he committed rape by taking an advantage of his official position. If he didn’t take advantage of his official position in commission of rape, then he used to be liable for regular punishment.

(2) Previously, a person having committed rape on a woman under 16 years of age was liable for enhanced punishment but now that age has been reduced to 12 years of age.

2.6 Addition of few more circumstances which warrant enhanced punishment- S.376

(1)  Following new situations have been inserted by the amendment. Commission of rape;

a. By member of armed forces in an area where he is deployed by the Central or a State Government, or

b. By a relative, guardian , or teacher of , or person in a position of trust or authority towards the woman, or

c. During communal or sectarian violence, or

d. On a woman incapable of giving consent, or

e. By a person who is in a position of control or dominance over a woman, or

f.  On a woman suffering from a mental or physical disability, or

g. And thereby causing grievous bodily harm or maiming or disfiguring or endangering the life of a woman, or

h. Repeatedly on the same woman.

2.7 Increase in punishment with increase in gravity, capital punishment also inducted

a. Gang Rape- S. 376D

The offence of gang rape has been made wider by substantiating the pre-amendment provision with an alternative wherein the condition for act of gang rape to be committed in furtherance of the common intention of all the persons has been relaxed.

Moreover, the same is punishable with minimum 20 years of rigorous imprisonment which might be extended to life imprisonment, or with death. The life imprisonment in this case would extend to the remainder of that person’s natural life.

Besides this, a fine which shall at least be just and reasonable to meet the medical expenses and rehabilitation of the victim shall also be payable by the convict to the victim.

b. Permanent Vegetative State or death of the victim- S.376A

Punishment for causing death or resulting in permanent vegetative state of victim shall be rigorous imprisonment of either description for a term not less than 20 years, but which may extend to imprisonment for life, or with death. The life imprisonment in this case would extend to the remainder of that person’s natural life.

c.  Death Penalty for recidivists- S.376D

The harshest punishment has been prescribed for the person who is convicted again for an offence committed under S. 376, 376A or 376D. He shall be punished with life imprisonment or death. If it is life imprisonment then he shall remain in jail for the remainder of his life.

2.8 Not exactly rape but still punishable

A person who by abusing his position or fiduciary relationship vis-a-vis a woman induces or seduce her when she is either in his custody or under his charge or present in the premises to have sexual intercourse with him shall also be punishable even when such an act would not amount to rape. The punishment in this case shall be rigorous imprisonment for a term not less than 5 years, but which may extend to 10 years. In addition, he shall also be liable to fine.

2.9  Nipping the evil in the bud/Uprooting the seed before germination

The filthy fascinations and conduct which predate the commission of heinous act of rape must also be dealt with harshly. The amendment has taken the following steps in this direction;

a. Making of a demand or request for sexual favours, showing pornography against the will of a woman, making sexually coloured remarks, or making physical contact and advances involving unwelcome explicit sexual overtures shall be treated as sexual harassment and punishable with imprisonment or fine.[3]

b.  Assault or use of criminal force to a woman with an intent to disrobe her or compelling her to be naked has also been made punishable with imprisonment and fine.[4]

c.  Stalking, that is, following a woman and contacting, or attempting to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman, or monitoring the use by a woman of the internet, email or any other form of electronic communication, has been made punishable with imprisonment and fine which shall increase in case of subsequent conviction.

To strike a balance, three exceptions have also been carved out in the section, the most interesting being the conduct in question being reasonable and justified.  

d. It has increased the punishment for uttering any word, making any sound or gesture or act intended to insult the modesty of a woman[5] from one year to three years. Moreover, while earlier either imprisonment or fine was the punishment, now imprisonment and fine are the punishment.

Interestingly the marking of all these offences as being cognizable, with a few of these even being non-bailable will make people think twice before doing such acts.

3.  AMENDMENTS TO THE CRIMINAL PROCEDURE CODE, 1973[6]

3.1 FIR in rape cases and other sexual crimes

The amendment seeks to add two provisos to the extant sub-section 1 of section 154 of the Code.

The first one makes it mandatory that the First Information Report in case of offences committed under section 326A, 326B, 354, 354A-354D, 376, 376A-376E or 509 of the Indian Penal Code, 1860 shall be recorded by a woman police officer or any woman officer.

This is important because explaining the details of the offence to a woman officer would be psychologically less painful for the victim/complainant when compared to the same being narrated to a male officer and also a woman officer would be better equipped to provide the instant emotional support required by the victim/complainant in such cases.

It is but unfortunate that sometimes police officers instead of doing their job further ridicule the plight of the victim. The possibility of such a wrong also gets minimized when the officer is a woman.

Clause (a) of the second proviso to Section 154, CrPC provides that where an offence under Section 354, 354A-354D, 376, 376A-376E or 509 of the Indian Penal Code, 1860 is alleged to have been committed or attempted and the victim is temporarily or permanently mentally or physically disabled person, 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 person’s choice, in the presence of an interpreter or special educator, as the case may be.

Though the rationale behind excluding the offences under section 326 A and 326B from the purview of the second proviso is unclear, yet the provision is a welcome step till the time the complainant is the victim herself. But where the complainant is not the victim herself, the position seems to be a bit complex.

Clause (b) of the second proviso provides that the information recorded under the sub-clause (a) of the proviso should be videographed.

It will be instrumental in saving the time of the court which gets wasted in resolving various twisted, distracted versions of the statement of the complainant presented by the defence. It amounts to use of technology in trial which is a positive development. And most importantly it saves the victim from the excruciating pain and trauma of going through the details of the horrifying crime numerous times in the courtroom during the trial. Also, the expressions and demeanour of the victim just after the crime also aids the judge to arrive at the correct verdict.

But it does not seem to be logical in a situation wherein the complainant under clause (a) of the second proviso to sub section 1 of section 154 of the Code is not the victim herself as it will deter or discourage prospective informants who seek to help police but don’t want their role to be highlighted due to fear of retaliation by the accused.

Clause (c) of the second proviso places mandatory onus upon the police officer to get the victim’s statement recorded under Section 164(5A)(a) as soon as possible.

3.2 Victim’s Statements to Police under S. 161, CrPC

It makes it mandatory that the statement of a victim of sexual crimes must be recorded by a woman officer. Again this provision has been enacted keeping in mind that the psychological trauma of the rape victim in narrating the ordeal to a woman officer would be relatively lesser than it being narrated to a male officer.

The provision proceeds not only on the assumption that a woman officer would be more sympathetic towards the victim but also that the victim would be more comfortable when she would come to know that the person to be looked upto is a woman. Moreover, police officers being human beings are also affected by gender sensitivity which operates as a subconscious factor in their minds. Hence, it would be correct to say that a female would be more critical and serious of such crimes rather than a male.  

3.3  Recording of the victim’s statement by the Magistrate- S. 164(5A)

It is a concrete step that the onus has been placed upon the magistrate to record the statement of the victim upon whom the offences under Sections 354, 354A-D, 376, 376A-E, 509 has/have been committed as soon as the commission of the commission thereof is brought to the notice of the police. It has to be read with clause (c) of second proviso to Section 154(1), of CrPC (also brought in by this amendment and discussed earlier). The proviso is significant in the following ways;

(1)   It forces the police to take the complaints in such cases seriously as now they have to inform the magistrate as the statement of the victim would be required to be recorded u/s 164, CrPC.

(2)   The statement under Section 164, CrPC is admissible in evidence in the court upon the commencement of trial. The admissibility will not be barred by Section 26 of the Indian Evidence Act, 1872 as the statement in this case is not a confession. But it will be provided for by way of implication since there is no explicit bar on admissibility of statements given under S. 164 which is there in case of statement of witnesses or accused given before the police authorities as per S. 162 read with Section 25 and 26 of the Indian Evidence Act, 1872.

(3)   The ‘as soon as’ requirement if actually fulfilled in the least amount of time after commission of the offence would lend more credence to the account of the victim. It is but natural that the statement given by the victim proximate to the happening of the offence would not be fabricated or inspired by any ulterior motive in maximum number of the cases.

Again the provision regarding special educator to be employed when the victim is temporarily or permanently mentally or physically disabled is self justifiable. Similarly, videography of such statements is only logical.

3.4 Statement of the victim before Magistrate substituted for the examination in chief of the victim- S. 164(5A)(b)

The provision is very different and new in its approach because this makes the statement to the magistrate under S. 164 equivalent to a deposition given by a victim before the court during examination-in-chief. The implications of such a provision are as follows;

(1) It places a very heavy burden on the shoulders of the magistrate who records the statement of the victim.

(2) It reduces the pain and ordeal of the victim in repeating the offence again and again.

The claims that it will give rise to undue sanctity and authority being granted to the statement of the victim should not be taken very seriously because the right of cross examination of the accused to be undertaken by the defence remains there on the statute unaffected.

3.5  Sanction not required where accused a public servant- Section 197, CrPC

This provision that ‘public servants’ as defined under S. 21 of the Indian Penal Code, 1860 would not be entitled to any sanction from the appropriate government which employs them if any FIR is registered against them for offence like 166A, 166B, 254, 354A-D, 370, 375, 376, 376A-D, 509 will be instrumental in checking the abuse of power by public servants who after commission of such offences take the shelter of sanction.

3.6 Unwanted confrontation of the victim with the accused barred- S. 273, CrPC

A proviso has been added to the section, which puts an obligation upon the court, to ensure that any victim of rape or any other sexual offence, who is below the age of eighteen years, is not confronted by the accused.

Notwithstanding the amendment, the provision still has safeguarded the right of cross-examination of the accused.

The importance of the provision lies in the fact that any attempt by the accused or the defence to browbeat or to remind the victim of the flagitious crime allegedly committed upon her by the accused can be eliminated. This would also save the victim from the dirty tricks of the defence. Moreover, the provision has been confined to the victims below the age of eighteen years only because this age group is mentally not very strong to withstand the ways and pace of the court proceedings.

3.7  Reduction in the time of trial-S. 309, CrPC

This is the most significant provision that will bring down the average time of completion of trial in cases of rape and other sexual offences. One of the main factors which resulted in a spurt in these crimes was low conviction rate and snail-paced trials that languished on and on.

The amendment substitutes the previous section. The new section mandates the inquiry or trial should be continued from day to day until all witnesses in attendance have been examined. An adjournment can be given by the court but the reasons must be recorded for the same.

While the earlier proviso to the section said that the inquiry or trial in the cases of rape and other sexual offence must be concluded within two months from the date of commencement of the examination of the witnesses, the new proviso says that the time of two months has to be calculated from the date of filing of the completion report or charge sheet.

This provision considered with the usual time of 90 days taken by the police for filing a charge sheet brings down the time taken for completion of trial of such cases from the date of lodging of FIR to a period of 150 days.[7]

The benefit of this provision is that as in case of any crime the evidence and ocular memories of the witnesses remain fresh, undiluted and authentic near to the commission of crime and start becoming stale with the passage of time.

Moreover, it is important to send a message to the society that the state treats this category of offences very seriously.

3.8 Pre-requisite for taking Cognizance of Marital Rape

The provision must be read with the newly substituted S. 376B of the Indian Penal Code, 1860. The provision stipulates that sexual intercourse between married persons, which takes place without the consent of the wife and where the wife is living separately by reason of a decree of separation or otherwise, shall be taken cognizance of by the Court of Session only upon itsprima facie satisfaction of the same.

The provision vests the judge with the discretion to check the malafide use of S. 376B, IPC by the wife.

3.9 Fine and Compensation to be given in case of gang rape to be independent of each other - S. 357B, CrPC

The section mandates that the compensation payable by the State Government under Section 357A shall be in addition to the payment of fine to the victim under Section 376 D of the Indian Penal Code.

3.10 Free Medical treatment of the victim- S. 357C

This section is nothing but an express declaration of the minimum basic treatment a human must get just by virtue of being a human. The immediate aim in all the criminal cases should be to save the victim first and not to charge him for that. This principle becomes all the more relevant when the victim is a rape survivor. The provision should be read with newly inserted Section 166B of the Indian Penal Code.

4.  AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872[8]

4.1 Evidence of the character of the victim irrelevant for establishing consent

Section 53A read with Section 5 of the Act, in particular would prove to be instrumental in safeguarding the right of sex workers also as it prohibits the giving of any evidence of the character of victim or her previous sexual experience with any person when the issue before the court is of the consent of the victim.

It furthermore goes on to say that such evidence cannot be given on the issue of quality of consent. In the opinion of the author such a stipulation is redundant as the substantive provisions to which this section applies talk about the consent as a whole which is inclusive of the quality of consent also.

4.2  Burden of proof in case of offences committed under s. 376(2), IPC, 1860 shifted

Section 114A is has the effect of shifting the onus of proving the consent of the victim on the accused as soon as the victim says that she didn’t consent to the sexual act. It applies to special cases of rape like rape by a police officer with a victim in his custody. The section would go on to create deterrence among the prospective offenders as the basic rule of evidence has been changed to give the victim’s word the status of a gospel truth. Though critics may say that it is a very biased provision, the author doesn’t think it to be so because;

Firstly its application has been limited to the offences under S. 376(2) (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n) because those are special cases where the offender is already in a position of dominance at the time of commission of the crime, and

Secondly, because the presumption can always be rebutted by the defence by providing evidence to the contrary.

4.3 Curbs on cross-examination of the victim

The proviso to S. 146 of the Act (which provides for the scope of the questions that may be asked by the advocate during cross-examination of witnesses) has been substituted with a new proviso which has specifically lay down and also widened its scope and extent. While the earlier proviso applied only to S. 376 and S. 511 of the Indian Penal Code, 1860 (45 of 1860), the new proviso applies to Section 376, 376A-E and S. 511. Moreover, earlier it only prohibited asking of questions relating to general immoral character of the prosecutrix. But the new proviso also prohibits asking of such questions during the cross examination of the victim as relate to the ‘previous sexual experience of the victim with any other person’ when such questioning is aimed at proving the consent or quality of consent of such victim. Besides limiting the scope of cross examination, the news proviso also disallows the defence to adduce evidence on these issues. And finally, the proviso seeks to bring a notional change by bringing in a terminological change as the term ‘prosecuterix’ has been replaced by ‘victim’.

4.4  Changes in Prevention of Commission of Sexual Offences against Children (POCSO) Act, 2012

Section 42 of the POCSO Act, 2012 has been amended to make it more specific by confining the references to any other law to S. 166A, 354A-354D, 370, 370A, 375, 376, 376A-376E, 509 of the IPC, 1860.

And section 42A has been inserted in the Act which makes it an act in addition to the existing laws dealing with the subject and not in their derogation. But in case of inconsistency among such laws, the provisions of POCSO Act would prevail over the other one.

5.  CONCLUSION 

Statistics reflect what has already happened and thus is an unreliable guide for judging the final contribution by Justice JS Verma.

New acts like stalking have been recognized as sexual offences, the definition of rape has been expanded and the legal sanctions have been increased manifold which the author thinks has the potential of curbing the spectre of rape in our society.

Shashank Mangal,

IV BSL LLB, ILS Law College,

Pune