CRITICAL ANALYSIS OF CRIMINAL LAW AMENDMENT ACT, 2013
ABSTRACT
Rape is an invasion of a woman’s body in which her private and private inner space is
violated. It's the most morally and physically reprehensible crime in a society, as it is an assault
on the body, mind, and privacy of the victim. Change in lifestyle, living standards, the disparity
in economic growth thanks to urbanization and changes in social ethos and lack of concern for
moral values contribute to a violent approach and tendencies towards women, which has
increased crime against women. The barbarous Rape Incident that occurred in Delhi was a result
of this attitude of our legislature. Further, the protest in the Delhi after the barbarous Rape
Incident indicated the whole of India, the enormity as well as the seriousness for immediate
reform in Rape Laws. Within the backdrop of this incident, the Central Government set
up Justice Verma Committee headed by former CJI of India, J.S. Verma to form a
recommendation on the inefficiency of Rape Laws and other laws for protection of women in
IPC because of great hue and cry by the Indians. Not only this, the President of India
promulgated.
The criminal law (Amendment) Ordinance, 2013, which amended several laws related
to Protection of Woman, as an instantaneous measure to settle downthe anger of India.
The Cabinet headed by P. Chidambaram together with his colleagues debated the criminal
law Ordinance, 2013. On 19 March 2013, it was passed by Lok Sabha.
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INTRODUCTION
The three-decade-long Amendment Act of 1983 required some urgent changes, such as
expanding the definition of rape. The Supreme Court of India in a case 1 referred the Legal
Commission to certain issues. The Law Commission in its 172 nd report made a number of
recommendations for changes in rape laws in India. Some of the recommendations made by the
Law Commission in its 172nd Report2 are as follows:
Creating a crime of rape is one of the most progressive recommendations Gender-neutral young
boys are also being raped in addition to women. The definition of rape is now expanded. The
extended definition is not included penile penetration but penetration of objects and other body
parts further. The Commission is not interested in removing the marriage rape exception .The
only exception was when the age of the wife was raised from 15 to 16 years. The perpetrators
were given severe punishment if rape was a crime.
It is done by immediate blood relatives like father, brother or any other person in such a state of
hope. The age of the victim of the worst minion rapes was increased from twelve years to
Sixteen years. The 2008 and 2010 draft bills failed to reach their climax, and they ended
Parliament. The Criminal Law (Amendment Bill) was introduced in the Lok Sabha December
2012. December 16, 2012 A few days after the brutal incident. The public reaction to the
incident led to calls for tougher laws the crime of rape.
The Criminal Law (Amendment) Act, 2013, was passed within five months incident. The
amended rules are very progressive. Position under The ‘consent’ embodied in the law clearly
expresses the intention to shift the focus from the victim's actions and sexual history, and the
accused's actions. Therefore, the lack of objection or submission differs from the explicit
agreement or Approval. But specified Sexual acts. Although it can be expressed in words,
gestures or other verbal or non-verbal communication, acknowledging that consent is beyond
doubt if the judges are true to the philosophy and purpose, the victim-accused is the place to be
arranged. Similarly, this amendment takes into account the effect of inequality Power relations
for consent, prescribing a wide range of severe punishment Circumstances in which the victim is
1
Sakshi v Union of India, (2004) 5 SCC 518
2
Law Commission 172nd Report (2000) titled― Review of Rape Laws March 2000, available at -
http://www.lawcommissionofindia.nic.in/rapelaws.htm#chapter3 Accessed on 15th December, 2020
2
relatively backward Guilty3. Substantial and practical laws dealing with the criminal justice
system were strictly enforced the changes are one of the most critical changes since the 2013
amendment Judges were given no choice in penal policies, it was with them before 4. The key
issues addressed by the Justice Verma Committee were the definition of consent, the status of
marital rape, and the expansion of the definition of rape. Extending Actusreus in rape, age for
consent. Although Judge Verma The panel recommended adding the best recommendations
Practical law, but Parliament did not heed some of its recommendations and missed Great
opportunity to combine some important rules like gender neutrality under rape laws, marital rape
must be made a crime, such as lowering the age of consent.
SOME BASIC CHANGES RECOMMENDED BY VERMA COMMITTEE
Many changes were made by the 2013 amendment, and some major amendments were also made
the definition of rape is section 375 and its sentence is section 376 Indian Penal Code. The Law
Commission of India was discussed at its 172nd place the report recommended changing the
word "rape" to "sexual violence." Verma Committee This issue decided not to change the name
to “rape” because the word “rape” is so strong Shows social condemnation. Instead, the Verma
Committee recommended a change "Violation of a woman's modesty" with "sexual assaults".
Parliament approved Half of the panel's recommendation and the word "rape" did not change or
do This includes sexual assault under Section 354 of the Indian Penal Code With the crime of
violating a woman's modesty5.
There is no doubt that the recommendations made by the Verma Committee are progressive
Those recommendations were not fully incorporated by Parliament The Verma Committee
wanted to make the crime of rape “gender neutral,” which is Rape can be committed against any
gender, Parliament did not accept that suggestion. This means that it can only be done by one
man the crime of rape on the woman.
EXPANDING THE SCOPE OF DEFINITION OF RAPE
3
Justice Verma Committee Report,2013, available at- https://www.prsindia.org/uploads/media/Justice%20verma
%20committee/js%20verma%20committe%20report.pdf Accessed at 15th December, 2020.
4
Shraddha Chaudhary, Reconceptualizing Rape in Law Reform.
5
Mrinal Satish, Laws Relating to Sexual Violence in India: Constitutional and Human Rights Dimension, Journal of
the National Human Rights Commission.
3
In present law, the offence of rape consists of four types of “sexual acts” as defined in Section
375 of the Indian Penal Code, following are those four acts-
“Penetration of penis into the vagina, mouth, urethra or anus6.”
“Inserting any object or any part of the body (for example finger) into the vagina, urethra, or
anus7.”
“Manipulation of any part of the body of a woman so as to cause such woman penetration into
the vagina, urethra, anus or any part of body of such woman8”.
“Application of male’s mouth to the vagina, anus, urethra of the woman9.
Section 375 also makes the offender a woman Do the above actions with a third party, he will be
responsible under this category. The age of sexual consent was also increased from sixteen Years
to eighteen years. The definition of approval was also issued in 2013 Correction. Definition of
Consent10 “Consent is a vague term Voluntary contract when the woman is in words, gestures or
in any form Verbal or non-verbal communication indicates will Participate in specific sexual
activity. It also says that there is no body a woman's anti-sexual act does not indicate her consent.
DEFINING CONSENT
2013 First Time Amendment Limited “Approval” The crime of rape. Prior to 2013, the Indian
Penal Code was defined under Section 9011 Approval. However, this is the definition of consent
in the context of rape Rao Harnain Singh has been given against the state of Punjab 12 for
decades. Court approval is “the woman’s voluntary participation, then Intelligence training, and
after making a choice between Opposition and approval”.Courts for a decade following this
definition of consent Cases dealing with the crime of rape. Amendment 2013 gave a positive
6
I.P.C SECTION 375(a)
7
I.P.C SECTION 375(b)
8
I.P.C SECTION 375(c)
9
I.P.C SECTION 375(d)
10
I.P.C. SEC. 375 explanation 2
11
Shraddha Chaudhary, Reconceptualising Rape in Law Reform
12
Section 90 of the Indian Penal Code- this is a negative definition, as it provides for situations in presence of which
consent would be vitiated. Situations which would vitiate the consent is fear or misconception of facts by the
perpetrator, unsoundness of mind of person consenting, consent of child are some more situations in which consent
obtained is not a valid consent.
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definition of consent instead of that negative Definition given under Section 90 of the Indian
Penal Code.
The main one the stress given in this definition is a ‘relationship of consent’ to a particular
person Sexual act ’. A voluntary contract is still a key factor Approval is obtained by coercion or
misrepresentation, and then it is not proper consent. One of the most important aspects of the
definition of consent may be granted for a particular sexual act. i.e. a woman Consent to
intrusive sexual activity does not mean that she is the intrusive act is also approved, the intrusive
act, in this case Amount for rape. One of the issues prior to the 2013 Amendment was a request
that was not approved13.
The courts called for a sexual act to be argued by the trial Additional evidence from the
government to confirm non-compliance For example injury marks on the body. There were some
events in this The Supreme Court held that it was not necessary to show injuries The woman's
body to know whether or not there was consent, but some more The courts insisted on that
additional confirmation. But after 2013. The revised definition of consent clearly states that there
is no lack of opposition average approval.
AGE OF SEXUAL CONSENT
One of the differences between the Verma Committee and the then Parliament It’s about the “age
of sexual consent”. As mentioned above that is sixteen years Female sexual activity can be
approved before 2013. Protecting Children from Sexual Offenses, 2012 recommended the age
for sexual consent of a person is eighteen years. It defines ‘child’ as one a person under the age
of eighteen. This was the conflict the 18-year-old was sexually assaulted between the POCSO
and the IPC Consent and others provided 16 years. Conducting the Justice Verma Committee It
is recommended not to age with its progressive ideology Eighteen years. Parliament did not
accept this suggestion Sexual consent for eighteen years. One reason was given by the Member
of Parliament this will stop all sexual activity under the age of majority. Ageing Sexual consent
can never be a solution to stop the underage sexual activity, which is the effect of that change
after the 2013 amendment can be seen by analyzing it. The definition of rape has been expanded,
13
PratapMisra v state of Orissa, (1977) 3 SCC 41.
5
with adolescents engaging in consensus Sexual activity is not denied in both the penis and vagina
Penetration and non-vaginal penetration of the penis, but now these tests When the parties to the
sexual act are low it is called rape 18 years. A study based in Delhi recorded 460 rape cases In
Delhi in 2014, 189 cases were approved for couples.
The need of an hour is to find the right approach to deal with the underage sexual activity. One
can look what Michelle Oberman would suggest about the proximity clause which means that if
the age difference between the parties to the sexual activity is within the limits specified in the
legislation, and victim voluntary states that the sexual activity was consensual, then that case
should be dealt differently as compared to cases in which the age difference is huge or the act
was non-consensual. The other suggestions would be of not using imprisonment for longer term
as a punishment instead innovative punishment should be introduced. However, under Indian
criminal Justice system, the minimum punishment is imprisonment for a term not less than seven
years and in fact judges have no say to minimize the sentence as well. One of the main issues
which Indian Parliamentarian overlooked was the social realities14.
With the change in society and society’s attitude especially in urban areas, adolescents have a
curiosity to engage in sexual activities and to experiment this part of life. Prior to 2013
amendment, if a seventeen year old boy with a seventeen year old girl would have engaged in
consensual sexual experimentation then that was not a crime then, but now after the 2013
amendment it is an offence of rape. A study shows that people involved in premarital sexual
relationships, 42% men and 26% women have admitted the fact that they engaged in sexual
activity with their partners when they were under the age of eighteen years.
The impact of such laws is that it has an adverse effect on adolescent men, as the sexual
interaction is so common in the adolescents these days and this sexual interaction is criminalized,
it would make number of men vulnerable to rape proceedings as an accused even in those cases
when the sexual interaction was consensual and due to some reasons no consent is pleaded by the
prosecution to make a fake case. This is not a case of India only, even in United States, a study
showed that 41% cases were fake in the cases involving adolescents 15. Adolescents undergo
14
Oberman, Michelle ; (2000) ‘Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape’;
Buffalo Law Review
15
Eugene J. Kanin, False Rape Allegations, 23 ARCHIVES OF SEXUAL BEHAVIOR
6
many hormonal changes to be specific 16- 18 years is that age group in which sexual desires
takes place.
Parliament completely failed as on one hand they think that increasing the age would save the
morality of the society on the other hand an unnecessary harassment and interference in the lives
of adolescents. The reasoning given by parliament in increasing the age of consent is that it
would stop all the underage sexual activity 16, this is completely naïve as adolescents these days
are very well aware of their sexuality with the help of internet, cable etc. There is not as such
need of legislative parenting especially on those cases in which consenting adolescent engage in
a sexual activity. It was suggested in the report that the defence given to the husband is based on
the philosophy that wife is a property of woman and she is always consenting and welcoming the
sexual desires of her husband. Committee report also suggested the comparative analysis of other
nations in which this immunity has been revoked and marital rape has been made an offence 17.
The Verma Committee Report has played a significant role to at least start the conversation for
criminalizing marital rape. There are four suggestions by the committee to criminalize marital
rape;
a. Removing the exemption clause;
b. Marriage should not be considered as a defence to arrest the accused;
c. No presumption of consent would be presumed;
d. Sentence is equal for the husband accused and otherwise. Interestingly,
42nd Law Commission Report also suggested to have a separate section to deal with marital rape
and it should not be called as marital rape and should have a different name18.
Parliament didnot accept all these suggestions given by Verma Committee. Instead, it seems that
parliament has in fact expanded the scope of marital rape exemptions. As mentioned earlier,
before 2013 Amendment, a man is said to commit an offence of rape only if there is a penile-
16
Bharat Ali, Age of Consent Catastrophe, THE TRIBUNE, (May 21, 2012)
http://www.tribuneindia.com/2012/20120521/edit.htm#6 Accessed on 15th December, 2020
17
Justice J.S. Verma Committee, Report ofCommittee on Amendments to CriminalLaw (January23, 2013).
18
Law Commission 42nd Report (1971) titled ―Indian Penal Code, available at
http://lawcommissionofindia.nic.in/1-50/Report42.pdf Accessed on 15 December, 2020.
7
vaginal penetration, which means a husband is exempted from penile-vaginal penetration with
his wife even if there is no consent.
One can contend that there is no exemption in section 377 of the India Penal Code, which means
that if there are any non-consensual sexual activity between a married couple which is non-
penile-vaginal activity then the husband can be prosecuted for the same under section 377 of the
Indian Penal Code, but as section 375 of the IPC covers the ‘other sexual acts’ which would have
otherwise fall under section 377, that contention then is not maintainable. Apart from suggesting
that marital rape should be criminalized, Verma Committee also suggested to incorporate a
procedural provision in which only a wife can be allowed to file a complaint against her husband
in case of marital rape.
Though Parliament did not bother about criminalizing marital rape, but readily accepted the other
suggestion and an amendment in Code of Criminal Procedure was made and Section 198B was
added. It would have been appropriate for the Parliament to either wholly make changes as
regards to marital rape suggested by Verma Committee, but Parliament chose to incorporate only
those things which pleases the member of the Parliament. There was a great chance to
criminalize marital rape and show the progressive attitude, but Indian Parliament chose to have
an orthodox ideology and negated the criminalization on the ground that marital rape does not
exist, it is “foreign concept”. In Haree Mohan Mythee 19, Court held that “husband does not have
the absolute right to enjoy the person of his wife without regard to the question of safety of
her….”, which means that the only limitation upon the husband rights to have a sexual
intercourse with his wife, whenever he wants is when there is a dangerous threat to the life of
woman or any threat to physical injury etc. The only rationale solution is to delete the exception
clause under Section 375 of the Indian Penal Code. Also, this should not be a defence that in the
relationship of husband and wife there is an implied consent for sexual intercourse. There should
be no exception in marital rape cases and same punishment should be given to the perpetrators 20.
NIRBAHAYA CASE 2012 DELHI GANG RAPE CASE
The 2012 Delhi gang rape case involved a rape and fatal assault that occurred on 16 December
2012 in Munirka, a neighbourhood located in the southern part of New Delhi, when a 23-year-
19
Queen Empress v.HareeMythee(1891)1LR18cal49.
20
Raveena Rao Kallakuru; PradyumnaSoni, Criminalisation of Marital Rape in India: Understanding Its
Constitutional, Cultural and Legal Impact, 11 NUJS La.Rev. 121 (2018)
8
old female physiotherapy intern was beaten and gang raped in a private bus in which she was
travelling with a male friend. The victim later died due to her injuries. The incident generated
widespread national and international coverage and was widely condemned, both in India and
abroad. Subsequently, public protests against the Government of India and the Government of
Delhi for failing to provide adequate security for women took place in New Delhi, where
thousands of protesters clashed with security forces.
FACTS
The gang rape in Delhi took place on the night of 16 th December 2012. The victim, a 23 year old
physiotherapy intern took a ride home in a private bus that night, with her friend. There were six
other people on the bus, including the driver.
The victim and her friend were beaten up when they raised their suspicions as to route of the bus
to the destination. The woman was later raped by all the men while the bus was moving and her
friend was beaten unconscious. After the beatings and rape, both the victims were thrown out of
the moving bus by their perpetrators and left on the side of the road, partially clothed. Later, a
PCR van arrived at the scene after receiving a call from a passerby. The victims were taken to
the Safdarjung Hospital in Delhi for treatment.
Medical investigation of the woman suggested she was penetrated by a blunt object, probably a
rod-like object that had caused extensive damage to the internal organs of the victim. Two blood-
stained metal rods were retrieved from the bus on police inspection, which the medical staff later
confirmed to be the object used for penetration that had caused serious injuries to the victim’s
uterus, genitals and the abdomen.
Within a day of the commission crime, arrests were made by the Delhi police in the case and all
the six accused including a juvenile were arrested.
TRIAL AND VERDICT
TRIAL
There was a huge demand for speedy trial and immediate prosecution in the matter. While five of
the accused were tried for the crime before the Additional Sessions Judge in the Special Fast
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Track Court, the sixth accused, who was a juvenile at the time of the crime, was tried before the
Juvenile Justice Board.
However, during the trial, one of the accused, Ram Singh was found dead in his prison cell. The
remaining accuseds were booked for rape, murder, kidnapping, destruction of evidence, and the
attempted murder of the woman’s male companion under Sections 120-B, 365, 366, 307, 376 (2)
(g), 377, 396, 302, 397, 201 and 412 of the Indian Penal Code, 1860.
CONVICTION AND SENTENCING
The juvenile defendant was found guilty of rape and murder of the victim under the Juvenile
Justice Act by the Juvenile Justice Board on the 31 st of August 2013. He was sentenced to three
years imprisonment in a reform facility.
The remaining four accused, after the death of Ram Singh, were found guilty of rape, murder,
unnatural offences and destruction of evidence by the fast-track court. They were sentenced to
death penalty by the court on 13th September 2013.
CONSEQUENCES
Widespread protests followed after the gang rape incident occurred. There were protest
movements nationally as well as internationally, all demanding stricter laws to check violence
against women. This particular incident garnered huge popularity because of the heinous nature
of the crime committed. As a result of the nationwide protests, the Justice Verma Committee was
constituted under the notification of the Government of India to suggest changes in the existing
laws.
DISTINCTION BETWEEN THE VERMA COMMITTEE RECOMMENDATIONS AND
THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013
The major differences between the Ordinance passed by the government and the J. S. Verma
Committee recommendations were:
1. The Justice J. S. Verma Committee recommended 20 years imprisonment for gang-rape
and life imprisonment for rape and murder but refrained from using the term “death
penalty” though there was public outcry to sentence rapists with death sentence following
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the brutal gang-rape and murder of a 23-year-old medical student in Delhi on December
16, 2012.
However, the ordinance passed by the Cabinet went for a harsher punishment for a rapist – a
minimum of 20 years imprisonment for rapists and even death penalty in extreme cases.
2. Verma panel reccomended criminalization of marital rape but the ordinance rejected it.
3. The Justice J. S. Verma Committee recommended restriction of politicians facing sexual
offence charges from contesting elections. Ordinance rejected this recommendation.
4. The panel recommended that the senior police or army officials be held responsible for
sexual offences committed by their junior but the ordinance rejected it.
5. The Justice J. S. Verma Committee wanted to make videography of recording statement
from victim mandatory but the ordinance made it optional.
6. The Justice J. S. Verma Committee wanted the definition for sexual offences as rape but
the ordinance replaced it with the word “sexual assault”.
CONCLUSION
The Criminal Law (Amendment) Act, 2013 has been known all over as one of the most concrete
steps taken by the Indian government to curb violence against women. Major amendments by the
Act in the Indian Penal Code, not only widen the ambit of certain offences but also recognizes
new offences like acid attacks which earlier lacked a specific provision and definition in the
Code.
The definition of rape has been amended to include not just peno-vaginal intercourse but the
insertion of an object or any other body part into a woman’s vagina, urethra or anus, and oral
sex. This responds to a longstanding demand of women’s rights groups. The issue of rape by
different means was highlighted in the Delhi gang-rape case, where an iron rod was inserted into
the young woman’s body.
Despite its flaws, the Act bears a progressive insight to make an impact and fight a battle against
violence against women. However, the Act by itself is not sufficient to redress and seek justice
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for violence against women. For this, the Government of India needs to make colossal
investments in building necessary infrastructure to deal with the crimes supplemented by
meaningful reforms in judiciary (building fast track women’s courts, more engagement of
women lawyers, women doctors to examine victims) and modernization of the police system
across whole of India.
The 2013 Act should be viewed as a mere placeholder in the ongoing struggle against sexual and
gender-based violence in India. The most overwhelming prospect is the overhaul of prevailing
attitudes to rape and sexual offenses in a populace ostensibly grappling with moral “confusion,”
as economic modernization necessitates far-reaching changes in gender roles while social
attitudes remain steeped in moral conservatism and misogyny.
There are already ample laws prescribing deterrent punishment for offences against women.
What is actually required is a concrete legislation, this was however, partially achieved through
the passing of the Criminal Law (Amendment) Act, 2013; to infuse sensitivity, understanding
and more significantly, the mindset among police, executives to implement the laws more in
spirit than in letter. Only then deterrent punishment can be awarded in crimes against women.
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