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Remembering Nirbhaya

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NIRBHAYA CASE DELHI GANGRAPE LAW INSIDER

NIRBHAYA CASE DELHI GANGRAPE LAW INSIDER

By Esha Dinesh-

The Hathras Gang rape again shocked India. Lapses of local administration making headlines in the current case. The victim is unfortunately no more but we can give tribute to another Indian Daughter by remembering Nirbhaya.

Rape is, to me, no different than murder. It kills a part of the victim’s soul”

– Jonathan Maberry

Rape is the most heinous crime a woman can be a victim of. It still remains one of the most frequently committed crime in India.

When a woman is raped, burned, terrorised, maimed, mutilated, and/or buried, an essential life energy on the planet is destroyed.

It is an act of unlawful and forceful sexual activity which violates a woman’s dignity and right to privacy in the most extreme possible way.

The offence of rape is mentioned under section 375 of Indian Penal Code 1860, but its definition was widened to include various other acts of convicts after the Nirbhaya case which took place in Delhi in 2012.

The law prior to this landmark judgment defined rape as only penile-vaginal intercourse done forcefully. Due to this a lot of criminals were not convicted and punished as their acts didn’t fall in the ambit of the prescribed definition.

However, marital rape is still not an offence in India, except for the time of judicial separation.

The case of Nirbhaya led to a massive protest outside the parliament and in various countries, which helped to change the existing laws relating to sexual offences, including that of rape.

Even though these laws have not yet yielded the desired results, as said by our present Chief Justice of India, SA Bobde, but has surely made necessary changes which were required. This particular case also enlightens us as to how slow the wheel of justice moves in our country, and the present loopholes in laws

Introduction

Nirbhaya” means fearless, a name which was given to the victim who went through the most horrifying night any person could imagine. The night of 16th December 2012 not only shook India, but also the world.

This case turned out to be a landmark judgement for how there was a nationwide public outcry, horrified to come face to face with the barbaric reality of the most horrifying incident that took place in the history of India against women.

This landmark judgement became a pivot turning point for the women of India as concrete steps were taken, women were more empowered, and gender sensitisation began among people.

It took a spine-chilling incident like this for the nation to wake up and realise where India was heading. This landmark judgment brought changes to criminal law in the aspect of sexual offences by widening the definition of rape, making punishment more stringent, and recognizing other offences like acid attack.

It initiated the setup of fast track courts so that cases of such depravity are addressed well in time. The cold shivering night of 16th December led to many legal and social reforms in our country, which was much needed.

However, it took 7 years for justice to be served. This clearly enlightens the citizens about the loopholes in our judicial system, and how gradually the wheel of justice moves in India.

It is noted that every 20 minutes a woman is raped, yet very less cases are reported.

Rape is not just exploitation of a woman, but the most gruesome act that can be done against her, which not only violates her dignity and right to privacy but also causes lifelong trauma.

The night of 16th December is still remembered as the night of unfortunate and inhuman acts done to a girl who was merely enjoying her freedom to roam around in the country. This incident reminds us that India is the most dangerous country for women[1].

A girl who was brutally raped, beaten, horribly exploited by insertion of objects in her body, fought for her life with all her strength, but left every woman with a fear in mind which makes them curb their own freedom.

After fighting for 13 days, Nirbhaya succumbed to death in a hospital in Singapore. With a judgement of 429 pages, court described the acts of forcefully disrobing, violent & fatal sexual assault by all appellants, insertion of rod in private parts, perforation of her intestine which led to sepsis, rape, and other acts as devilish, sadistic & beastly instinctual pleasures, which rose a widespread of anger in public.

The court upheld the death penalty of the convicts, which took place on 20th March 2020.

She was awarded posthumously with 2013 International Women of Courage Awards by United States to acknowledge that she fought through everything to survive with utmost courage and willpower.

The night of 16th December 2012

Jyoti Singh, a 23 year old paramedic (physiotherapy intern) was on her way to home with her friend after watching the movie ‘Life of Pi’ in Saket. They boarded a bus with 5 more passengers (convicts) and a driver.

The convicts Ram Singh, Pawan Kumar, Vinay Sharma, Mukesh, Akshay Thakur, and a juvenile Mohammad Afroz closed all the doors of the bus, picked a fight with the victim’s friend, hit him with a rod, gagged him and left him unconscious.

The convicts then mercilessly beat victim, raped her repeatedly, inserted blunt objects in her private parts, and tortured her endlessly. The victims were disrobed and thrown naked on National Highway no: 8, near Mahipalpur flyover. The bus drove around the city for 2 and a half hours while this incident took place.

Upon calling police, the police officers spent half an hour arguing over jurisdiction of the place where crime was commenced, while the victims bled on the road.

Victims were then rushed to hospital where Jyoti was in ICU and her friend had suffered broken limbs and injuries, but survived.

When police probed into the matter, it was discovered that there were several bite marks on Jyoti’s body, serious injuries to her abdomen, intestines, genitals and uterus.

Jyoti fought for her life which was evident from the bite marks on the convicted men’s bodies. 2 blood stained mental rods were retrieved, one of which was a wheel jack used to penetrate the victim.

After this heinous crime, the convicts had also robbed a carpenter named Ram Adhar who boarded the bus, and dumped him at IIT flyover.

Jyoti Singh gave her statement twice to the authorities but later suffered with brain damage, pneumonia and abdominal infection. She died on 29th of December in Mount Elizabeth Hospital in Singapore.

Dilemma of jurisdiction.

Valuable time was spent over the argument between the police officers over the jurisdiction in this case. It is evidently made clear in 2014 that filing a FIR is mandatory[2].

The jurisdiction is equally important as one can file a FIR under section 154 Criminal Procedure Code at the police station under whose jurisdiction the place of crime comes under. This has been a hurdle for citizens as it is a task to find out jurisdiction before filing a FIR.

In this case, the crime commenced in the bus which was moving on the roads of Delhi. Since the bus drove around for 2 and a half hours while the crime was taking place, it crossed several different places of different jurisdictions.

The Delhi High Court directed the Commissioner of police to register a Zero FIR when a cognizable offence is reported and there is confusion regarding the jurisdiction. This came up as a recommendation from Justice Verma committee after the widespread protest in Nirbhaya case.

The notion of Zero FIR is that a police officer is duty bound to register a cognizable offence that is reported to him, even if it doesn’t fall in his jurisdiction.

He is supposed to mark the serial number of such report as 0 and forward it to the respective police station when there is clarity over jurisdiction. The FIR is then marked with the relevant serial number and the wheel of justice moves ahead in its procedure.

This change in the procedure of filing a FIR has eased things for victims as they can always reach out to the nearest police station irrespective of the jurisdiction.

Now, a victim doesn’t have to first figure out the relevant police station to report to, in the trauma of the victim is going through. He/she can directly reach out to any nearest police station, and the police officer is duty bound to address the same and provide help. No police officer can refuse to file an FIR in case of a cognizable offence.

Police’s probe into the case.

The officials were taken aback by the backlash and the outcry not just in India but across the world. The citizens demanded for justice for the daughter of the nation who was fighting for her life, and this created the much needed pressure on the officials.

The police soon found the 6 convicts who were trying to abscond after the inhuman acts committed by them.

The Prosecutrix gave a brief history of the incident to her doctor on 16th December 2012. After 5 days when she was declared fit to give a statement under section 164 of The Criminal Procedure Code 1973, she gave her statement to Sub-Divisional Magistrate on 21st December.

Subsequently, she again gave her statement to the respective authority on 24th December.

It was found that the convicted men were drunk on the day of the crime. One of the convicted men also admitted to have seen a rope-like object being pulled out of her which seemed like her intestine.

Ram Singh, who was one of the convicts had a history of frequent drinking, blinding rage and temper which led his friends to call him “mental”.

The charge sheet filed by the prosecution was under section 307, section 377, section 376(2) (g), section365, section 120B, section 366, section 396, section 302, section 395, section 201, section 412 and section 34 of The Indian Penal Code 1860 which states murder, attempt to murder, unnatural offences, gang rape, kidnapping/abduction, criminal conspiracy, dacoit, destruction of evidence with common intention.

During the collection of evidence, to have clarity on the routes that the bus had travelled on during the crime for 2 and a half hours, a route map marked by the convicts was admissible under section 8 and section 27 of Indian Evidence Act 1872[3].

The Delhi police had also filed a case against a Delhi based tabloid for disclosing the rape victim’s identity which is prohibited under section 228 of Indian Penal Code 1860. Shashi Tharoor, (then union minister) said that the identity of the victim can be made public if parents have no objection to it.

The idea behind doing so is to acknowledge the great strength and courage of the victim and mark it as a sign of respect.

One of the convicted men, Ram Singh was found hanging in his cell in Tihar Jail in 2013. It was contended by the learned counsel for the convicts that it was not a suicide but a murder, but since there was no negligence on part of any authority, no compensation was recommended by the court and it was declared as suicide.

The delaying tactics using legal remedies:

Our law provides certain legal remedies to accused/convicts so that justice is delivered fairly. However as people take advantage of things provided to them, even advocates of accused take advantage of these legal remedies. Since it is established in our law and fundamental rights are given importance, no one can be deprived of these remedies.

Supreme Court laid down in Harbans Singh[4] case that all convicts must be hanged together if they are convicted in the same case and same crime. Due to this established guideline, every convict had their legal remedy to be exhausted. They took advantage of it to delay their execution date, which was pointed out by the solicitor general in Supreme Court.

  • Review Petition – Article 137 of Indian Constitution

Review petitions are filed when a party is aggrieved by Supreme Court’s judgment and hence want to revisit the same to amend/rectify the errors if any. It is mentioned in Article 137 of the constitution, stating that Supreme Court can review or revisit its own judgment if appealed by any of the parties for the same. It is available to parties only after remedy of appeal is exhausted. Since it is a discretionary power, its scope of power is restrictive. One of the convicts, Akshay moved Supreme Court for the same in December 2019.

  • Curative Petition

Curative petition is nowhere mentioned in Constitution of India, but its concept was laid down in 2002 in case of Rupa Hurra v Ashok Hurra[5] stating that it could be exercised only in rare cases due to its strong discretionary power. It is clubbed with Article 137 of Indian constitution which lists Supreme Court’s power to review its judgement.

It’s a remedy which can be availed by an aggrieved party after the dismissal of review petition. It is allowed if it is brought to the notice that a principle of natural justice has been violated. Its scope is narrow as the court must be satisfied that a grave injustice will take place is verdict is implemented.

All the convicts has filed curative petition and all of it had been rejected and dismissed.

  • Mercy Petition – Article 72 (President) and Article 161(Governor)

Article 72 and Article 161 of Indian Constitution states that the President of India and the governor have power to grant respites, reprieves, remissions and pardon to punishments laid down by the Apex court of India.

However, the power to grant pardon lies only with the President of India, provided a death sentence has been awarded to the convicts. It has been laid down that this is the last scope of dodging the death sentence.

The President of India rejected the Mercy petitions of convicts saying that criminals who are guilty of sexual offences against women should never be at mercy. Even the nation wanted the convicts to be hanged for the brutality of the incidents, hence the petitions were rejected and dismissed.

Cases & Petitions:

The accused were found guilty by Special Fast track court and awarded death sentence. It was further referred to Delhi High Court which confirmed that the convicts were guilty and must be hanged till death for the barbaric acts done by them.

Supreme Court had similar views as that of fast track court and Delhi High Court. The convicts were adamant to find a way out of death sentence and kept trying to find a loophole by repeatedly filing petitions. However, every petition was rejected and dismissed.

The following are the cases of this incident, and the petitions filed by convicts before the execution of the death warrant:

State v Ram Singh & Another 10th September 2013

The Fast track court observed that the accused found an object of pleasure in sadistic acts committed on 16th December 2012. It was regarded as the rarest of rare case, in which a victim was tortured so brutally that it shook the conscience mind of people and even of court.

The trial court found the convicts guilty given the evidence and the confession of Mukesh who was one of the convicts. Mukesh admitted that he was present at the crime scene and he confirms the acts reiterated in the court.

The court told him that this statement could be used against him. The fast track court heard the arguments and contentions by both learned counsels. Considering it as a matter of human rights, the court awarded capital punishment, keeping in mind the gruesome act done by the convict. It further referred the case to Delhi High court for the same.

State through reference v Ram Singh & Others 13th march 2014 (death sentence ref. no: 6/2013)

Delhi High Court found the convicts guilty and upheld the punishment awarded previously by the trial court. It cited that the Apex court in Macchi Singh case[6] recorded its reflection on question of death penalty and held that inhuman acts of torture and cruelty to bring about the death of victim arouse intense and extreme indignation of society and warrant death sentence.

It further noted that when collective conscience of community is shocked, the courts must award death sentence[7].

It would be a failure of justice not to award the death sentence in a case where the crime was executed in most grotesque and revolting manner.[8] Keeping the above judgments by Supreme Court, and the grave facts of the case, the Delhi High court upheld the death penalty awarded to convicts.

Mukesh v state of NCT Delhi 2017 6 SCC 7

The appeal to lessen the sentence from death penalty to life imprisonment was dismissed by the 3 bench judge (Dipak Mishra, R.Banumathi, and Ashok Bhushan).

Aggravating circumstances were the ways the crime was committed. It was not only diabolic but also merciless, with extreme brutality and depravity Mitigating circumstances were the contentions and issues raised by the counsel for the convicts in the court.

The court held that aggravating circumstances had outweighed the mitigating circumstances, and they found no ground to lessen the sentence considering the demonic acts done by the convicts.

It was mentioned that this case falls under the ‘rarest of rare’ category keeping in mind the level of viciousness present. The Apex court found no ground to lessen the punishment, and stated that trial court and high court were right while giving the punishment, and hence upheld the death penalty, to be hanged till death.

Petition to International Court of Justice

The convicts also approached the International court of Justice seeking stay on execution. They appealed that their execution should be stayed, and instead a lesser term of punishment must be awarded. International Court of Justice had always asked to not give death penalty to guilty as it violates human rights.

However, Supreme Court judge BN Srikrishnan said that International court of Justice has no jurisdiction to stay the order of execution. It was also stated that when such a rare and horrifying crime is committed, which falls under the rarest of rare category and shakes the conscience of humanity, death penalty must be awarded.

The review petition filed by Akshay Kumar Singh seeking modification and leniency was rejected by Supreme Court on December 18, 2019

Special Leave Petition – 21st January 2019

Pawan Kumar appealed for a special leave petition stating that he was a juvenile at the time of incident and the Delhi High court failed to acknowledge that while awarding death penalty. The learned counsel for the convict submitted attendance records of school, and other documents to support the contention. However a 3 bench judge dismissed the petition stating that it is not maintainable.

Pawan Kumar Gupta v State of NCT Delhi 2020 SC 340

The contention raised was that due to torture in prison, petitioner had sustained head injuries and he was sutured with more than 10 sutures and no proper treatment was given to him. The petitioner also contended that he might not have shared common intention along with other co-convicts and he should not be given grave capital punishment like others.

The court held that the alleged torture and injury, if any happened, cannot be a ground for judicial review of execution order passed and hence rejected mercy petition. It also noted that the petitioner was found guilty by Trial Court and High court of having common intention with the other co-convicts, therefore raising the same arguments can’t be appreciated.

Mukesh Kumar v Union of India 29th January 2020

A writ petition was filed under Article 32 of Indian Constitution challenging the rejection of mercy petition by President. The grounds for the petition were that the convict was in solitary confinement for 1.5 years and was suffering from serious psychiatric ailments.

It was furthered contended that there was no consideration of relevant circumstances of the convict, and non-observance of established rules and guidelines in considering the petitioner’s mercy petition.

The court held that power conferred by Article 72 is a high prerogative power vested by constitution in highest functionary of union and it must be presumed that the authority would act properly and carefully[9].

When a power is vested in such a high authority, it is duly taken care that decisions are taken with utmost care and consciousness. Challenging the same is questioning the power and ability vested in the authority. Therefore it was held that here was no ground for judicial review.

Vinay Sharma v Union of India 14th February 2020

The petitioner challenged the rejection of his mercy petition on the grounds of mental illness, non-furnishing of relevant materials under RTI act, non-consideration of relevant material & illegal solitary confinement.

The court again reiterated the judgment of Maru Ram v Union of India stating that the authorities must be trusted that they’ll take decisions after carefully examining every information, and such power given to authority is the highest of order. Hence the court dismissed the petition.

11th hour running around

Advocate A.P.Singh on behalf of the convicts said that Justice hurried is justice buried. He contended that Akshay Kumar’s wife’s divorce plea is pending, and the execution must be stayed till it is finalised.

He showed Pawan’s school certificate, school register, and attendance register claiming that he was a juvenile at the time of crime and he must not be punished with death penalty.

Justice Bhushan stated that those documents were already filed before and divorce plea is not a relevant ground to stay execution. The judges further stated that the advocate had not raised even a single legal argument and hence they found no foundation in his plea as it was filed without index, list of dates, memo of parties, annexures and affidavit.

It was further stated that the convicts had exhausted all their legal remedies and must be hanged at 5:30 am on 20th March 2020.

The death warrant was issued and stayed approximately 4 times as it was necessary that all convicts exhausted their legal remedies before the execution. Court expressed displeasure over lawyers arguing and mentioned that once a judgment is signed, the judge cannot touch it again.

After rejecting the mercy petitions of convicts, the President of India said that the convicts in sexual assault cases do not deserve mercy.

A.P.Singh asked court to allow family members of convicts to meet them for one last time before the execution for 5-10 mins, but Solicitor Tushar Mehta reminded the court that jail rules do not allow that and it will be painful for the families and convicts. The execution took place, bringing the long struggle to an end.

Judicial system stood by the phrase – “Justice delayed is not justice denied”

Changes inculcated in law:

After the barbaric incident which shook the conscience of the whole world, a lot of reforms too place to tackle sexual assault. The state of Karnataka presented a 24/7 helpline dedicated for sexual assault complaints, Tamil Nadu came up with a 13 point action plan to ensure safety of woman, Jammu & Kashmir decided to change their state laws, and Himachal Pradesh set up state and district level committees to review cases.

Along with these, Juvenile Justice Act and Criminal Laws were amended to make it stricter. A judicial committee headed by JS Verma was set up to review laws, recommend changes, and report failures.

  • Juvenile Justice Act 2015

A Juvenile who was among the convicts, Mohammad Afroz, was convicted by Juvenile Justice Board as he was a minor and was released on 20th December 2015 after serving 3 year term in reform facility.

His parents refused to accept him, therefore he got a new identity provided by the government authority to start a new life.

The Juvenile Justice Act replaced the pre-existing Juvenile Justice (Care and Protection of Children) Act 2000, after the parliamentary approval on 22nd December 2015.

The amendments to the Juvenile Justice Act was placed on 15th January 2016, keeping in mind the aim to treat minors of age 16-18 committing heinous crimes as adult in court.

The level of seriousness of crimes has been categorised in 3 types – petty, serious, and heinous offences. It also introduced Children’s court which has the jurisdiction to try offences under this act. It was further prescribed that this act is to be constituted in every district.

Regarding offences, except heinous offences, a juvenile will get institutional care for maximum 3 years. After a case is referred by Juvenile Justice Board to Children’s court, it will be determined whether to try him as an adult or recommend counselling, observation home, etc.

It was reiterated that no life imprisonment or death sentence is to be awarded to any juvenile.

With respect to procedures in case, the inquiry is to be completed within 4 months of first production of child in front of Juvenile Justice Board, which can be extended to 2 months with a written valid reason by the officials stating the delay. In case of heinous crimes, the inquiry is to be disposed off after 60 days of first production of child in front of Juvenile Justice Board.

  • Justice Verma Committee

The Justice Verma committee was a judicial committee headed by JS Verma (former chief justice of India), along with Leila Seth (judge), and Gopal Subramaniam (former solicitor general).

The first meeting was held on 26th December 2012 and the report was submitted after 29 days after considering 80,000 suggestions. It is a comprehensive document which lists the issues of rape, sexual assault, trafficking of women and children, child sexual abuse, and honour killings.

The report indicated failures on part of government and police which happened to be the root cause. The committee recommended amendments to criminal law, quicker trial and enhanced punishment.

It also reiterated Supreme Court’s decision on ending the use of dark film on car windows or windows of vehicles. It further recommended rigorous imprisonment instead of death penalty, and suggested that the offence of rape that leads to death or vegetative state of victim, the convicts must be punished with rigorous punishment of not less than 20 years or life, and for gang rape that leads to death of the victim, the committee recommended that the convicts must be awarded with life imprisonment.

The committee stressed the importance of registering FIR of every report relating to sexual offence, and on failing to do so, the police officials must be punished. It further suggested to employee more female officers to the police force for better service to the rape victims.

The following were the recommendations laid down by the committee in certain sections in criminal law referring to sexual offences against women:

Rape :

  • Sexual offences must be retained as separate offences, and definition of rape should not be limited to penetration of vagina, mouth or anus.
  • Once someone is married, it is deemed that forceful sex between partners is not considered rape. The committee recommended to remove that exception.
  • The relation between the victim and the accused should not be relevant and should not affect the case.

Sexual Assault :

  • It was recommended that sexual contact which is of the nature of non-penetrative should be regarded as sexual assault.
  • Pre-requisite of sexual gratification as a motive should not be relevant for proving an offence.

Verbal sexual assault :

  • Acts, words or gestures which create an unwelcome threat of a sexual nature should be termed as sexual assault with up to 1 year of imprisonment as punishment.

Sexual harassment :

  • The committee recommended to include domestic workers in Sexual Harassment of women at workplace bill 2012.
  • The committee questioned the clause of complainant and respondent first required to attempt reconciliation, which is contrary to Supreme Court’s judgement in Vishakha’s case[10].
  • Employer should pay compensation to the women who suffered or was a victim to these offences.
  • Recommended Employment Tribunal to receive and adjudicate all complaints

Acid attack :

  • It was recommended that this offence should not be clubbed under provisions of grievous hurt, but be dealt with separately
  1. Conflicted areas need to be revisited in Armed forces act :
  • Continuance of Armed forces Act in conflicted areas must be revisited.
  • There is also a requirement and need of sanction for prosecution of armed forces personnel must be specifically excluded when any act relating to sexual offence is alleged.

Trafficking :

  • Since Immoral Trafficking Prevention Act 1956 did not define trafficking as it only criminalised trafficking for the purpose of prostitution, it was recommended provisions of Indian penal code on slavery must be amended to criminalise trafficking by threat, force or inducement
  • Juvenile and women Protective homes must be placed under legal guardianship of the High Courts.

Child sexual abuse :

  • It was recommended that the terms ‘harm’ and ‘health’ must be defined under Juvenile Justice Act 2000 so that it includes mental and physical harm and health of juvenile.

Punishment for offences against women :

  • The committee believed that death penalty must not be awarded for offence of rape as there was considerable evidence that death penalty was not a deterrence to serious crimes. It further recommended life imprisonment.

Police reforms :

  • It was pointed out that there is a need to establish state security commissions so that it is ensured that state government do not exercise influence on the state police.
  • A need for broad guidelines was suggested so that the police acts according to law.

Medical examination of rape victim :

  • It was suggested to discontinue the 2-finger test used to determine the laxity of vaginal muscles of a rape victim.
  • It was concluded that the 2-finger test violates the right to privacy of a woman, and hence should not be practised any further.

Reforms in management of cases regarding offences against women :

  • To provide legal assistance, a rape crisis cell to be set up.
  • All police stations to have CCTV cameras at the entrance of the station and in the interrogation room
  • An option to be made available to public at large to be able to file FIR online.
  • Police officers must be duty bound to assist victims of sexual offences irrespective of the jurisdiction.
  • Number of police personnel must be increased.
  • Police officers must be trained to handle cases of sexual offences appropriately.
  • People who help the victims of such offences must not be treated as wrong doers.
  • More female police officers must be added to the forces for better help to the victims of sexual offences.
  • Criminal Law (Amendment) Act 2013

This act is also famously known as Nirbhaya Act or Anti Rape Bill, which was passed by Lok Sabha on 19th March 2013, and passed by Rajya Sabha on 21st March 2013.This act received Presidential assent on 2 April 2013 and came in force on 3rd April 2013.it is deemed to be the most significant and important change inculcated in the existing laws, a great reform of laws relating to sexual offences. It not only recognises a wide range of sexual offences but also penalises police officials for failing to register FIR.

The major change brought to existing laws relating to sexual offences, is to widen the definition of rape under section 375 of Indian Penal Code 1860.

It now recognises forcible acts of penetration of vagina, mouth, urethra, or anus through penis or any inanimate object, to any extent, or making her do so, etc.

At first, resistance to such acts were given great amount of importance. It was never considered that a female can be drugged, unconscious, or even in unstable mind. The new amendment act took care of it and stated that lack of physical restraint is immaterial.

It further covered the scenarios of victim being in unstable mental condition, drugged, or even unconscious. It further establishes that the age for giving of consent is increased from 16 to 18 years, and anyone who has a sexual intercourse with a female of 16 years or less, irrespective of her consent, will be held liable to have committed the offence of rape.

Along with abolition of 2-finger test during medical examination, it was also stated that all hospitals must give first aid and medical treatment to a rape victim for free. The importance must be stressed upon the need of help for medical treatment.

The act majorly focused on amending Indian Penal Code 1860, Indian Evidence Act 1872, and Criminal Procedure Code 1973 regarding sexual offences

New offences were added in Indian Penal code :

  • Section 326 A – Acid Attack – Gender Neutral – Any such person who attacks another person with acid may be awarded with a term of imprisonment of up to 7 years.
  • Section 326 B – Attempt to Acid Attack – Gender Neutral – A convict under this offence may be imprisoned for a term of 5 years, which may be extended to 7 years.
  • Section 354 A – Sexual Harassment – Only women. (Physical contact & advances involving unwelcome & explicit sexual over tunes, Demand/request for sexual offences, forcibly showing pornography, making sexually coloured remarks, any other unwelcome physical, verbal or non-verbal conduct of sexual nature)
  • Section 354 B – Act with intent to disrobe a woman – A convict under this offence is to be punished with imprisonment for not less than 3 years, which may be extended up to 7 years.
  • Section 354 C – Voyeurism – Voyeurism is the act of capturing or watching a woman while she is indulging in any private activity. A punishment for up to 7 years may be granted to the guilty in case of voyeurism
  • Section 354 D – Stalking – Any such person who stalks a woman, or tries to contact her repeatedly can be punished with a term of up to 3 years of imprisonment.
  • In section 370, the word ‘prostitution’ was removed in reference to trafficking, and this was further broken down into clauses.

  • ·       Section 376 : Punishment for rape – imprisonment for not less than 10 years, extendable to imprisonment for life
  • ·       Section 376A : Punishment for causing death or resulting in persistent vegetative state of victim – rigorous imprisonment for not less than 20 years, extendable to imprisonment for life
  • ·       Section 376AB : Punishment for rape on woman under 12 years of age – rigorous imprisonment for not less than 20 years, extendable to life imprisonment
  • ·       Section 376B : Sexual intercourse by husband upon his wife during separation – imprisonment for not less than 2 years, extendable to 7 years.
  • ·       Section 376C : Sexual intercourse by a person in authority – imprisonment for not less than 5 years, extendable to 10 years.
  • ·       Section 376D : Gang rape – rigorous imprisonment for not less than 20 years, extendable to imprisonment for remainder of person’s natural life
  • ·       Section 376DA : Punishment for gang rape on woman under 16 years of age – imprisonment for remainder of person’s natural life
  • ·       Section 376DB : Punishment for gang rape on woman under 12 years of age – imprisonment for remainder of person’s natural life, or death.
  • ·       Section 376E : Punishment for repeat offenders – imprisonment for the remainder of person’s natural life, or death

Amended Section 375 and Section 376 of Indian Penal Code 1860

Before Criminal law Amendment act 2013, Rape had a very narrow definition only requiring a sexual intercourse between the offender and victim, under Indian law, which was taken advantage of by the offenders.

The need for changes in laws relating to rape was much needed, especially the definition of rape and punishment for the crim under Indian Penal code, to recognize every gruesome act done to a woman. The amendments made widens the definition of rape and ensures stricter and rigorous punishment to the offenders.

Now, the amended Section 375 which defines rape as an act done by a man when:

·       He penetrates his penis, to any extent, in the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person;

·       He inserts, to any extent, any object or a part of the body, not being his penis, in the vagina, urethra, or anus of a woman or makes her to do so with him or any other person;

·       He manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person;

·       He applies his mouth to the vagina, anus, and urethra of a woman or makes her do so with him or any other person.

Along with widening of the definition of the crime, the circumstances and the situation of obtaining consent were enlisted to make sure the victims are not suffered due to uncontrollable or manipulated circumstances:

·        Against the will of the victim

·       Without the consent of the victim

·       With the consent of the victim, but the consent is obtained by putting her or any person in whom she is interested, in fear of death or hurt

·       With the consent of the victim, when the offender knows that he is not her husband, and that the consent is given because victim believes that the offender is another man to whom she is or believes herself to be lawfully married to.

·       With victim’s consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

·       With or without victim’s consent, when she is under 18 years of age.

·       When the victim is unable to communicate consent.

 

However, covering all possible aspects to give justice to rape victims was not enough to keep such crimes in check. The need for rigorous punishment is equally important, which led to amendments in Section 376 of Indian Penal Code 1860 that enlists punishment for such criminals:

  1. Thompson Reuters Foundation 2018 Survey

  2. Lalitha Kumari v State of UP and ors (2014) 2 SCC 1

  3. State of Delhi v Navjot Sandhu 2005 11 SCC 600

  4. Harbans Singh v State of UP & Ors 1982 AIR 849

  5. Rupa Hurra v Ashok Hurra (2002) 4 SCC 388

  6. Macchi Singh v State of Punjab 1983 AIR 957

  7. Devender Pal Singh v State of NCT Delhi 2002 5 SCC 234

  8. Ram Singh v Sonia and Ors 2007 3 SCC 1

  9. Maru Ram v Union of India 1981 1 SCC 107

  10. Vishakha v State of Rajasthan AIR 1997 SC 3011

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