FYI 13th December, 2016

The Criminal Law Amendment Act, 2013 – Changes in the Rape Law Post 16.12.12.

The gang rape of a 23 year old student in Delhi on 16th December 2012, led to a country wide agitation by women’s groups and feminists all over the country. Following the protests, a committee under the leadership of retired Justice Verma was constituted to come up with recommendations for the amendment to law relating to sexual offences. The committee submitted its report (available at http://bit.ly/1pnzDp7) on 23rd January 2013. The committee in its report emphasized on the duty of the State to ensure gender justice.

The Criminal Law Amendment Act of 2013 (available at http://bit.ly/1GxoUuT) that came into force did not accept all the recommendations of the Justice Verma Committee. However, major changes in substantive and procedural law were made with respect to rape cases.

The amendments made in the Indian Penal Code 1860, Code of Criminal Procedure 1973 and Indian Evidence Act, 1872 relating to rape cases were as follows:

Indian Penal Code, 1860 (IPC)

  1. The amendment inserted a new provision under section 166 A for punishing public servants who refuse to record a FIR in cases of specified crimes against women including rape.
  2. The amendment also inserted a new proviso under section 166 B punishing those in charge of a public or private hospital for refusal to provide free medical treatment for victims of rape.
  3. The definition of rape in section 375 was widened to include acts other than forcible peno-vaginal penetration or sexual intercourse. The amended section 375 includes forcible penetration by the man of his penis, any part of his body or any object into the vagina, mouth, urethra or anus of a woman or making her do so with him or any other person; manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra or anus of a woman or making her do so with him or any other person; and applying his mouth to the vagina, anus or urethra of a woman or making her to do so with him or any other person.
  4. Consent was defined by adding an explanation to section 375 as “unequivocal voluntary agreement” signifying willingness by the woman by “words, gestures or any form of verbal or non-verbal communications” to participate in the sexual act. This definition clarifies that women’s silence or absence of ‘no’ cannot be construed as a “yes”.
  5. The age of consent was raised from 16 to 18 years.
  6. Section 376 (2) was expanded to included rape committed by a member of the armed forces deployed in an area by the Central or a State Government in such area.
  7. Section 376 (2) was also expanded to consider rape of a woman below the age of 16 years as aggravated and hence enhanced punishment for it.
  8. The judicial discretion available to impose a reduced sentence (lesser than the required minimum) was deleted by the Amendment.
  9. A separate section 376 D was made for the offence of gang rape with a higher punishment. The section states that, where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine.
  10. The amendment made separate section for rape that caused death or persistent vegetative state of the victim under section 376 A. With this section, the amendment introduced death penalty as a punishment for rape that caused vegetative state or death.
  11. Section 376 C was expanded to include the abusing of a position of authority or fiduciary relationship by certain persons to induce or seduce any woman in his custody or charge to have sexual intercourse with him.
  12. The amendment also included a section 376E for repeated offenders and laid down stricter punishment for persons convicted under this section. Death penalty was also introduced in this section as the punishment along with life imprisonment without parole.
  13. Earlier, section 376A (intercourse by a man with his wife) provided for a punishment of imprisonment for a term, which may extend to two years. After the 2013 amendment, punishment for sexual intercourse by a husband upon his wife during separation without her consent (section 376B, substituting section 376A) was increased to seven years, with a minimum punishment of two years.

Code of Criminal Procedure, 1973 (CrPC)

  1. Section 154 (1) that deals with the recording of FIR was amended to include that in certain offences against women (including rape), the FIR has to be recorded by a woman police officer or any woman officer. It also added that in case of a woman who is temporarily or permanently mentally or physically disabled and alleges commission or attempt of an offence under section 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E or section 509 of the Indian Penal Code, 1860, such information shall be recorded by a police officer, at her residence or at a place of her choice, in the presence of an interpreter or a special educator. Along with this, such information shall be video-graphed and her statement before the Magistrate under section 164 CrPC shall be recorded as soon as possible by the police officer.
  2. Section 164(5A) was inserted by the Criminal Law Amendment Act 2013, which makes it mandatory for recording of statement of the victim/survivor by the Judicial Magistrate, as soon as the commission of the offence is brought to the notice of the police.
  3. An explanation was added to section 197(1), CrPC to the effect that it would not be necessary to seek prior sanction from the Appropriate Government for prosecution of a public servant for any of the offences of sexual abuse. This is for the obvious reason that the section 197 is intended to protect public servants from malicious prosecution for acts done in the discharge of duties. It cannot be argued by any stretch of imagination that sexual abuse happened as a part of public duties, hence the said amendment was made to enable expeditious prosecution of public servants for rape and other forms of sexual abuse.
  4. Section 375C, inserted by the Criminal (Amendment) Act 2013, makes it mandatory for all public and private hospitals to immediately provide free first aid or medical treatment to victims of acid attack and rape, and to immediately inform the police of such incident.

Indian Evidence Act, 1872 (IEA)

  1. A new section 53 A was inserted by the Criminal Law Amendment Act 2013 which deals with ‘evidence of character or previous sexual experience’. As per this section, in a prosecution for an offence of rape, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the question of such consent or quality of consent.
  2. The existing section 114A was substituted by a new one stating that in a prosecution for rape under clauses (a) to (n) of section 376(2) IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
  3. The proviso to section 146 was substituted with the existing one to state that, in a prosecution for rape, it shall not be permissible to adduce evidence or to put questions in the cross examination of the victim as to the general immoral character or previous sexual experience of such person with any person for proving such consent or quality of consent.
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