Initiating while citing the concept of Equality, in general terms, this is a presupposition of a fact that everyone starts from the same point. Similarly, the two categories of homo sapiens, i.e. men and women also started from an identical source, but with the gradual dissipation of time, their occurred some differences in their political as well as social image, which put the former in a dominant position to the latter. Therefore, to curb these differences, the origin of an affirmative concept of Justice took place. The concept of justice changed its notion when the world’s largest democracy and hub of moral values, INDIA faced various draconian crimes committed against women either in incidents ofVishakha, Mathura Rape Case or Nirbhaya incident, which resulted in developing of harsh and harsher Rape Laws for securing them from these inhumane crimes.
But, the entire nation was again shocked, and its conscience was shaken after they heard that some human beings in the clothing of wild animals have a torn-off the blanket of respect surrounding India’s Prestige and Heritage residing within its daughters and those raped girls of Kathua and Unnao. The incident of Kathua& Unnao outraged the protests in every street, every corner and every home, as their voices were thrashing the doors of Parliament(again)for seeking law to provide punishment for these offences as maximum as possible. In consequence of the same, the Criminal Law (Amendment) Ordinance, 2018 was promulgated by the President of India on April 21, 2018.
The action of promulgation of this ordinance in itself is marked as a step for taking the already ‘Tougher Rape Laws’ to its superlative degree of making them ‘Toughest Rape Laws’ in the Indian Legal System.
Before going to the recent amendments made by theCriminal Law (Amendment) Ordinance, 2018, we may take a glimpse of the already persisting toughness in the provisions relating to rape laws in India.
The same includes, presumption of no-consent in rape cases when sexual intercourse is proved, Disobedience of law by a public servant, Rape resulting in death or vegetative state, Punishment for gang rape, Rape by armed personnel, Punishment for repeat offenders, stalking, sexual assault, voyeurism, acid attack, VictimCompensation Schemes which were the outcome of Nirbhaya Act [Criminal Law (Amendment) Act, 2013]. Moreover, the attitude of the common people of India against the persons alleged of committing crime against women was also noticed to be devastating, where the general public went on to take the law into their hands and started beating up the alleged rape accused, because of the persisting defects in execution shown by the Indian Rape law.
Now, noting the major present updates made to the level of toughness in the Indian Rape Laws by the virtue of Criminal Law (Amendment) Ordinance, 2018 which has provided the following amendments to the Indian Penal Code 1860(I.P.C.), Indian Evidence Act 1872 (I.E.A.), Code of Criminal Procedure 1973(Cr.P.C.) and Prevention of Children from Sexual Offences Act 2012(P.O.C.S.O).
IMAGE 1: Glimpses of Criminal Law (Amendment) Ordinance, 2018.
1. Amendment to I.P.C.
- Section 376 IPC: Minimum Punishment for Rape has been increased from 7 years to 10 years and the Maximum punishment remains the same, i.e. Imprisonment for Life.
- Section 376 sub-section (3) is incorporated which prescribes the Minimum punishment of 20 years to a man committing rape on a woman (how a girl below 16 years of age be considered as women- highly discrepancy shown in this section) under Sixteen years of Age.
- Section 376AB has been newly inserted which prescribes the minimum punishment of 20 years rigorous imprisonment to a person committing rape on a woman under 12 years of Age. Death Penalty is the maximum prescribed punishment in this respect.
- Section 376DA and 376DB provide minimum punishment of Life Imprisonment for persons involved in gang rape of a woman aged less than 16 years and 12 years, respectively. Moreover, Capital Punishment is also prescribed for persons involving in gangrape with women under 12 years of age.
- Section 376 (2) (a), the sentence “within the limits of the police station to which such police officer is appointed” has been omitted. This omission implies, no matter where a Police officer commits rape, he is to be punished with rigorous imprisonment of minimum 10 years.
2. Amendment to Cr.P.C.
- Section 173 is amended to provide that investigation in relation in all Rape cases may be completed within two months from the date on which the information was recorded by the officer in charge of the police station.
- Section 374 of Cr.P.C. have also been amended to insert a sub-section which prescribes six months’ time to dispose of an appeal in rape cases.
- Sub-section (4) of Section 438 is amended to incorporate that, No Anticipatory bail can be granted to a person accused of rape of girls of age less than 16 years.
- Section 439 is amended to include the presence of informant or any person authorized by him at the time of hearing an application for bail to a person accused of rape of girls of age less than sixteen years.
3. Amendment to POCSO Act
- Section 42 of the POCSO Act has been also amended to include newly inserted IPC provisions section 376AB, section 376DA, and section 376DB.
In spite of the fact that we have such tough laws to prevent the commission of the crimes against women, we hear at a day-to-day level that in one portion or the other of our beautiful nation many cases of rapes are recorded. The main culprits which are found behind these tragic incidents in my view may include, firstly, the inefficiency of the Police force as well as the law enforcement agencies; Secondly, the delay in getting justice and disposal of cases may be categorised as other reason for non-decrease in the level of rapes, because the culprit is well aware of the fact that he will not be convicted in these cases in a day or two which has significantly risen the confidence of such delinquents or criminals.
Therefore, we the real sovereigns and our representatives should keep in their mind that making stringent laws is not a solution but the realisation of one’s duty should be the motive for effective implementation and execution of the law.
With this, I conclude this write-up by putting a question to ponder about, which the recent rape laws has not answered yet, and ultimately will result in another promulgation of a similar law titled as ‘Criminal Law (Amendment)….’ after witnessing another insensitive incident, on the following questions,
- Are Men never Raped?
- Are married women a tool for satisfying sexual desires?
Hope so, we get an answer to these questions in future amendments, because the answer to these questions will pave way for future amendments.
K.M. Ashok, Death for Child Rape- The Criminal Law Amendment Ordinance 2018: Promulgated, LIVE LAW (July 24, 2018, 07: 55 PM), http: //www.livelaw.in/death-child-rape-criminal-law-amendment-ordinance-2018-promulgated-read-salient-features-read-ordinance/.
4th Year, B.A., LL.B.(Hons.),
Amity Law School,
Amity University Madhya Pradesh