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The Criminal Law (Amendment) Bill, 2013 – A Critical Analysis

“We legislate first, and think afterwards; complexity is heaped upon complexity and confusion becomes worse confounded[1]

INTRODUCTION

C

hange in life style, living standards, disparity in economic growth due to urbanisation and changes in social ethos and lack of concern for moral values contribute to a violent approach and tendencies towards women, which has resulted in an increase in crime against women[2] but, as usual, our legislatures were least concerned when it comes to bring appropriate legislation for protection of women. Crime against women and their exploitation has multiplied many folds in the recent years because of the inefficiency in implementation of law. This is evident from the two tables(T.1.1. and T.1.2.) below:-

T. 1.1.: Crime Clock of Atrocities Committed Against Woman[3].
S No. Offences and Crimes against Women Rate of Crime
1. Rape 29 Minutes
2. Sexual Harassment 53 Minutes
3. Molestation 15 Minutes
4. Cruelty by husband or other relatives 09 Minutes
5. Dowry Deaths 77 Minutes
T.1.2. Statistics of National Crime Records Bureau on Crime Against Woman
S. No

Year

Crime cases against Women

1. 2005-2006 1,55,553
2. 2006-2007 1,64,765
3. 2007-2008 1,85,312
4. 2008-2009 1,95,856
5. 2009-2010 2,03,804
6. 2010-2011 2,28,650

The barbarous Rape Incident that occurred in Delhi[4] was 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 an immediate reform in Rape Laws. In the backdrop of this incident, the Central Government setup Justice Verma Committee headed by former CJI of India, J.S. Verma to make 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 (hereinafter refer as Ordinance,2013), which amended several laws related to Protection of Woman, as an immediate measure to calm down the anger of the India. Since, the Ordinance,2013 was full of anomalies, which where prima facie, as it was hurriedly enacted. The Cabinet headed by P. Chidambaram with his colleagues debated the Criminal Law Ordinance,2013[5].On 19 March 2013, it was passed by Lok Sabha. On 21st March, it was a surprise for everyone that the law which touches the life and soul of every individual of this country was passed by Rajya Sabha in just one day discussion[6].

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The Criminal Law Amendment Act,2013(hereinafter refer as Amendment Act,2013), for the first time, has created many new offences for  protection of woman against acid attacks(Sec. 326A and 326B), sexual harassment (Sec. 345A),voyeurism (Sec. 345C) and stalking(Sec. 345D) and inter alia, enlarged the definition of rape(Sec. 375)  in IPC.

The paper aims at bringing to light the repercussion, both negative and positive, anomalies and efficiency of the Amendment Act,2013.

OFFENCES AND AMENDMENTS

Acid Attack (Sec 326A)

Sec 326A has been added to the IPC as often the cases of throwing acid on faces of woman have surfaced. Beauty of face is a feature often primarily associated with females in chauvinistic male society. As such where a perpetrator wants to do damage to a female, he often prefers throwing acid on her face so as to destroy her beauty, regardless of any intentions. To curb such a horrifying menace, this crime has been added specifically in clear words under IPC with punishment of either description of not less than 10 years which could be upto life imprisonment along with fine.

Sexual Harassment (Sec 354A)

Sexual harassment may be defined as sexual misconduct by dominant (i.e., superior officers etc.) irrespective of the subserviant’s knowledge or any loss or adverse effect for refusing a superior’s unwelcome advance[7]. As early as 1993 at the International Labour Organization seminar held at Manila, it was recognized that a sexual harassment of women at workplace was a form of ‘gender discrimination’ against women[8]. In case of Vishaka v. State of Rajasthan[9], Supreme Court held that sexual harassment includes behaviour(whether directly or by implication) as:

a) Physical contact and advances;

b) A demand or request for sexual favours;

c) Sexually coloured remarks; etc.

The Parliament enacted Sec. 354A in Amendment Act, 2013 giving effect to the above guidelines and by also not limiting offence at offices or workplaces but everywhere. In spite of such a brilliant legislative action, this section is not immune from anomalies as follows:

 i.     Sec 354A (i) vis-a-vis Sec 354

The offences of under Ss. 354A (1) and 354 both require physical contact at the hands of the perpetrator. As such there is a lacuna when it comes to differentiating the types or forms of ‘physical contact’ amounting to sexual harassment and outraging the modesty of woman.

  1. ii.     Sec 354A (iv) vis-a-vis Sec 509

The offence of making sexually coloured remarks was already being dealt u/s. 509. Again the sub-clause Sec 354A(iv) imposes same degree of punishment as Sec 509. Thus the need to make this change and the intention of the legislature is very unclear.

Disrobing a Woman (Sec 354B)

Parliament made an amendment to IPC, adding Sec 354B, to create a new offence namely, ‘Assault or use of criminal force to woman with intent to disrobe’. The offence was made gender specific in backdrop of Delhi Bus Gang Rape[10]. Hailed by many legal scholars there is also a different story which remained unnoticed. The offence of disrobing should also be extended to men because unfortunately the young boy, who was with the girl and sole eye witness of the  incident, was also assaulted and disrobed[11] and as far as the victims are considered it should be made gender-neutral. The Sec. 355 has not sufficed in protecting male victims. The male accompanying the rape victim in the above mentioned event also suffered tortures and inhumane treatment at the hand of perpetrators.

Voyeurism (Sec 354C)

Voyeurism has surfaced in recent times with the advent of internet and social media sites. The Parliament by enacting Amendment Bill, 2013 has made it punishable under Sec 354C of IPC. Indian Parliament made Voyeurism gender specific, meaning that only a male could commit such a crime against a woman. This is very injudicious as there are often cases where women are also involved in commission of offence. The character Simi Roy (played by the actress Amrita Singh, Bollywood, dir. Mohit Suri) in movie Kalyug, is an apt description of the offence in the society.

Apart from this while dealing with offence of Voyeurism in Sec 354C, there is another anomaly related to its’ applicability. The section on voyeurism starts with ‘Any Man’, making it clear that only man can be perpetrators, followed by the phrase ‘by any other person at behest of the perpetrators’ raising series of doubts.  The doubt as to whether the phrase ‘by any other person’ should be read in the light of ‘any man’, meaning thereby that second person could only be a man, or in the light of Sec 11 which define ‘Person’. The court, most likely, would adopt the latter approach which will highlight another lacuna in Amendment Act, 2013. A woman as perpetrator will not be liable under this offence however a woman at the behest of actual perpetrator would be liable. This is approach is not only unjust but also unreasonable.

Stalking (Sec 354D)

Stalking is a term commonly used to refer to unwanted or obsessive attention by an individual or group toward another person. Section 354D of the Ordinance of 2013, was highly inspired from the definition of ‘Stalking’ in Sec 2A of the Protection from Harassment Act, 1997 passed by British Parliament on 25th November 2012. The offence is punishable with imprisonment, along with fine, for a term which may extend to 3 years, on first conviction, and for a term which may extend to 5 years for subsequent conviction. As per the definition in Sec 354D the offence was gender-neutral offence, making the crime of stalking punishable for both the gender whether male or female. Surprisingly, the Amendment Act of 2013 changed ‘Whosoever’ to ‘Any Man’ making the offence of Stalking a gender-specific offence. In the present era, it is highly orthodox and immature to say that a victim of stalking could only be a woman and culprit a man, vice-versa is also possible and has there have been instances worth reporting.[12] Under the Act, the offence is limited to the physical act of following or contacting a person, provided that there has been a clear sign of disinterest, or to monitoring the use by a woman of the internet, email or any other forms of electronic communication.

Rape is Redefined as Sexual Assault

Rape is one of the most horrific events any women could experience. Justice Krishna Iyer in the case of Rafiq vs State Of U.P[13] made a remark that, “a murderer kills the body, but a rapist kills the soul”. Taking a serious note of the inadequacy of the law of the rape manifested in a number of judgements, the Parliament from time to time has made an amendment with laws related to rape, including both procedural and substantive. The Parliament by means of Amendment Act, 2013 has enlarged the ambit of rape by making certain non-penetrative act as offence amounting to rape. The Amendment Act,2013 repealed the Ordinance(Amendment) Act,2013 which was having wider ambit, thereby raising serious questions regarding the lacunas or loopholes that the judiciary could confront  in future.

Earlier the offence of rape, i.e. ‘sexual assault’ was a gender neutral offence, while now this offence is women centric. Only a man is assumed to be capable of committing such offence and that too against a woman only. The aspect of gender neutrality was required in following aspects:

        i.            Neutrality with respect to the victim

Often the members of the marginalised sex like ‘Transgender’ are also victim of this offence and as such they cannot claim any protection because the crime of rape is not gender neutral[14].

  1.       ii.            Neutrality with respect to the perpetrator

 During the war in Iraq it surfaced that many women officers also involved themselves in torturing the prisoners by variant sexual assaults[15]. This strengthened the assumption that even women can be perpetrator of such crimes. There are two occasions when the need for gender neutrality arises even in India. Firstly, when during some communal or casteist violence a women is found to be participus criminus. Secondly, when a transgender person is an offender. The recent case of Pinki Pramanik, where her partner filed a case of rape against her. This case shows the very real possibility of female to male transgender persons or male to female transgender persons (either pre- or post- transition) causing sexual assault on a woman[16].

  1.     iii.            Rape of Married woman

The absence of law on marital rape (sexual assault), would also fail the objective of this bill as married women cannot be protected. The law u/s. 376-A and exception u/s. 375 should be deleted equate marital rape and sexual assault. As the s. 3 of DVA[17] is only applicable in grave life threatening scenario the need for consent of woman isn’t important leaving her as an object of sex.

The law u/s. 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when a spouse is being persecuted for an offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty[18].

Compensation u/s 357 Of Cr.PC

This section has been provided in Cr.P.C. , wherein the Court levies fine over the convicts, it can also grant certain portion of fine or full compensation to the victim. As far as the new law is concerned:

  1. State government to provide for compensation to the victim, besides the compensation being given by Court through fine against the convict.
  2. b.      The hospitals (government/private) shall provide immediate assistance to the victim in cases of rape, free of cost and inform the police about the offence.

However we need to understand that this form of compensation is only limited to Gang Rape and Acid attack cases. The other rape cases have been neglected without any justified rationale at the mercy of the court to provide fine. Fine levied by the Courts is discretionary and as per latest judgement of Supreme Court, the right of victim is only limited to the extent that Courts may discuss the question of compensation to the victim in form of fine. If court is not satisfied to grant fine they have to give reasons in recording but in no way they are bound to give compensation from the Fines.

DEATH PENALTY IN RAPE CASES

After the Delhi Gang Rape Incident, there was hue and cry for including death penalty as a punishment in Sec 376 but inspite of this neither Justice Verma Committee recommended death penalty in offence of rape nor it was incorporated in the Ordinance Act,2013 and thereafter in Amendment Act,2013. The Parliament did not include ‘death penalty’ under Sec 376 because the legislature were of the opinion that it should be awarded only in cases of ‘rarest of rare’ laid down in case of Bachan Singh v. State Of Punjab[19] when the alternative option is foreclosed. In the case of Mohinder Singh v. State of Punjab[20], the Court did not punished the accused with death penalty, inspite his act being heinous in nature, because there was “potential of convict to rehabilitate and reform”. The Court further was of the opinion that the alternative punishment of life imprisonment would not meet the end of justice, therefore following the case of Swamy Shraddananda v. State Of Karnataka[21], the court awarded him imprisonment till the last breath of life so that the ends of justice could be met.

CRIMES AGAINST WOMAN: VIOLATION OF 21 & 19

There is a need for the more proper and reasonable laws to deal with the crimes against women. These crimes themselves violate the very basic fundamental rights guaranteed to a woman under the Constitution. These crimes hit at the very base of our Constitution, as India as State fails to guarantee these rights.

Art. 21 talks about ‘Right to Life and Liberty’. It has been established by various case-laws from Habeas Corpus case[22] to Maneka Gandhi case[23] that liberty is very important feature towards life of an individual. ‘Life does not mean a mere animal existence[24]and as such this Article makes it obligatory for the State to provide a better and more secure society to our Women. A woman who is always under a threat for her life and physical body, then this law would become meaningless to her. Again the threats of the present society are violative of rights guaranteed under Article 19(1)(f), which is free movement through the territory of the country. It would not be wrong to say that a woman is not safe even in walking on street in broad daylight, the very law enshrined under this article is made useless.

The life of Indian woman in such a threatening society would be safer only in a cage to protect her from perpetrators, thus giving her an animal existence. We need to have stricter laws to ensure full liberty to women.

CONCLUSION

The major problem that is being witnessed by the society in the light of this law is that it is not water tight. Our leaders, like always, have failed to ensure the laws they enact are free from loopholes. The lack of gender neutrality in definition of Disrobing, Voyeurism, Rape etc, absence of law on marital rape, compensation for victims of rape, the age of consent and various other lacunas will create serious repercussions, realising this our political leaders Sushma Swaraj asked for tougher and efficient law in these kind of offences[25].Not only this, other politicians like Shailendra Kumar and Sharad Yadav remarked that such laws can be misused against men[26]. Seeing such inadequacy SP chief Mulayam Singh Yadav vehemently opposed the anti-rape bill too[27].

Unfortunately, such inadequacy comes to light when an innocent dies in the hand of cruelty and then our legislature realizes that the time has come to make reformation in laws, the Mathura Rape Case[28] and the death of Damini is prime example of such legislative stunts because of the laziness of our legislature, over the years, the common men has lost his faith in the present legal system. To do away with the problem our legislature need to have a comprehensive look at the law making process. Much has been already said on the present laws, it’s high time that legislature realises it’s responsibility.

 “These are the people that have lost the power of astonishment at their own actions. When they give birth to a fantastic passion or foolish law, they do not start or stare at the monster they have brought forth… The nations is really in danger of going off their head en masse, of becoming one vast vision of imbecility[29]

–          G.K. Chesterton

 About the Author

VAIBHAV DIXIT
4th Year Student,
Dr. RMLNLU,
Lucknow, Uttar Pradesh

SHREY SINGH
3rd Year Student,
Dr. RMLNLU,
Lucknow, Uttar Pradesh

References:

[1] Sorabjee,Solo J. and Arvind P. Datar, Nani Palkiwala, The Courtroom Genius (4th, LexisNexis Butterworth Wadhwa Nagpur, Gurgoan 2012) p.g. 27

[2]  Infra note 3.

[3] K.D. Gaur, Textbook on The Indian Penal Code (4th, Universal Law Publishing Co. Pvt. Ltd, Delhi 2011) p.g. 637

[4] SHUBOMOY SIKDAR, ‘Gang-raped in moving bus, girl fights for life in Delhi hospital’ (thehindu.com 2012) <https://www.thehindu.com/news/national/gangraped-in-moving-bus-girl-fights-for-life-in-delhi-hospital/article4208833.ece> accessed 20 may 2013

[5] SMITA GUPTA, ‘Cabinet divided on anti-rape draft law’ (thehindu.com 2013) <https://www.thehindu.com/news/national/cabinet-divided-on-antirape-draft-law/article4500256.ece> accessed 15 May 2013

[6] K.BALCHAND, ‘Anti-rape Bill passed’ (thehindu.com 2013) <https://www.thehindu.com/news/national/antirape-bill-passed/article4534056.ece> accessed 20 may 2013

[7] Burlington Industries v. Ellerth 524 U.S. 742 (1998); and Furgagher v. City of Boca Raton 524 U.S. 775 (1998).

[8] Apparel Export promotion Council v. A.K. Chopra, AIR 1999 SC 625.

[9] Vishaka v. State of Rajasthan, AIR 1997 SC 3011,para 16

[10] Id note 5

[11] ASHOK SHARMA, ‘Delhi Gang-Rape Victim’s Boyfriend Speaks Out’ (huffingtonpost.com 2013) <https://www.huffingtonpost.com/2013/01/04/delhi-gang-rape-victim-boyfriend_n_2410207.html> accessed 20 may 2013

[12] TNN, ‘Much talking on stalking, but what does it all mean? ‘ (TimesofIndia.com 2013) <https://articles.timesofindia.indiatimes.com/2013-04-28/people/38862447_1_woman-criminal-law-offences> accessed 20 may 2013

[13] Rafiq v. State Of U.P 1981 AIR 559

[14]Upendra Baxi, ‘Human Rights Violations against the Transgender Community’ (Peoples Union for Civil Liberties, Karnataka (PUCL-K) 2003) <https://ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.html> accessed 25 may 2013

[15] Seymour M. Hersh, ‘Torture At Abu Gharib’ (Newyorker.com 2004) <https://www.newyorker.com/archive/2004/05/10/040510fa_fact> accessed 25 may 2013

[16] Arvind Narrain , ‘The Criminal Law ( Amendment) Bill 2012: Sexual Assault as a Gender Neutral Offence’ (Economic and Political Weekly 2012) <https://www.epw.in/web-exclusives/criminal-law-amendment-bill-2012-sexual-assault-gender-neutral-offence.html> accessed 27 may 2013

[17] Domestic Violence Act,  2005.

[18] Priyanka Rath, ‘Marital Rape and the Indian legal scenario’ (India Law Journal ) <https://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html> accessed 20 May 2013

[19] Bachan Singh vs State Of Punjab, AIR 1980 SC 898, 1980 CriLJ 636.

[20] Mohinder Singh v. State Of Punjab,(1980) 2 SCC 684

[21] Swamy Shraddananda v. State Of Karnataka, (2008) 13 SCC 767

[22] ADM Jabalpur v. Shiv Kant Shukla, 1976 AIR 1207

[23] Maneka Gandhi v. Union of India, 978 AIR 597

[24] Munn v. Illinois, 94 U.S. 113 (1877)

[25] PTI, ‘Sushma seeks tougher law, death sentence in child rape cases’ (thehindu.com 2013) <https://www.thehindu.com/news/national/sushma-seeks-tougher-law-death-sentence-in-child-rape-cases/article4636764.ece> accessed 24 May 2013

[26] PTI, ‘Anti-rape Bill debate in Lok Sabha: Who among us have not followed girls? Sharad Yadav asks’ (TimesofIndia.com 2013) <https://articles.timesofindia.indiatimes.com/2013-03-19/india/37842632_1_acid-attack-stringent-punishment-bill-debate> accessed 24 May 2013

[27] Supra note 27

[28] Tuka Ram v. State Of Maharashtra, 1979 AIR 185, 1979 SCR (1) 810

[29] Sorabjee,Solo J. and Arvind P. Datar, Nani Palkiwala, The Courtroom Genius (4th, LexisNexis Butterworth Wadhwa Nagpur, Gurgoan 2012) p.g. 27,28.

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July 19, 2016

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