Was the Criminal Law Amendment Act, 2013 the Answer?

Criminal Law

Following the outrage that the nation witnessed in 2012 with the brutal gang rape of young Nirbhaya, The Criminal Law (Amendment) Bill of 2013 came into force. The act was soon known as the Anti-Rape Bill or the “Nirbhaya Act” after the victim that had suffered a severe tragedy owing to that weak criminal system in place for the protection of women in India. The Act came into force on the 3rd April, 2013, and it aimed to create severe, reprimanding and immediate changes in Rape Laws. The new Act was an improvement, to widen the scope of rape laws as it recognized more types of sexual crimes against women, which had a dual impact as it recognized several cases of gender discrimination.

The main provision of the act is that the police will be penalized for failing to register FIRs which allows more victims access to a just and fair system, where they are encouraged to report the crime, so that justice can reach every woman by which the Act is able to throw more light on the crimes of sexual assault, to provide more clarity especially arising out of the abuse of position of trust. This included explicitly stating that sexual voyeurism and stalking would amount to criminal acts. The barbarous homicidal gang rape that occurred in Delhi forced the Government to look at better, enforceable legislature.

The case involved a rape and fatal assault when a 23-year-old female was beaten and gang raped in a private bus. The victim later died due to her injuries. There was a huge demand for speedy trial amongst the public as people demanded that the criminals be punished severely with immediate prosecution. While five of the accused were tried for the crime before the Additional Sessions Judge in the Special Fast Track Court, the sixth accused, who was a juvenile at the time of the crime, was tried before the Juvenile Justice Board. The accused were booked for rape, murder, kidnapping, destruction of evidence, and the attempted murder of the woman’s male companion.

This incident generated huge international coverage forcing the Government of India to do everything in their power to take up radical reforms and the like to make women’s lives safer and secure (United Nations Entity for Gender Equality and the Empowerment of Women). This inspired the Central Government to setup the Justice Verma Committee headed by the former Chief Justice of India, J.S. Verma.

The purpose of the committee was to recommend changes to tackle the inefficiency of Rape Laws and other laws for the protection of women as it urged the public and eminent jurists, legal professionals, NGOs, women’s groups and civil society to share their views, knowledge and experience suggesting possible amendments in the criminal and other relevant laws to provide for quicker investigation, prosecution and trial, and also enhanced punishment for criminals accused of committing sexual assault of an extreme nature against women.

This led to the birth of the Criminal Law Amendment Act, 2013 which amended existing sections and inserted new sections in the IPC such as recognizing certain new offences like acid attack, sexual harassment, voyeurism, stalking which had then been incorporated into the Indian Penal Code. The most important amendment was that the definition of rape was altered to widen its scope under IPC. This was inspired by a judgement given by Justice Krishna Iyer in the case of Rafiq v. State of U.P (1981 SCR (1) 402) where he said that “a murderer kills the body, but a rapist kills the soul”.

So, the Act of 2013 looked to protect the fundamental right of a woman to gender equality under Article 14 and her right to life and live with dignity under Article 21. The Act of 2013 has been one of the most successful legislation in affecting the rates of commission of sexual crimes against women. With the improvements created in the processes of law enforcement and recording of crimes, the statistical growth in number of cases reported has risen drastically, with the occurrence of rape dropping around India, as compared to the numbers recorded prior to the 2013 act.

Taking into account the values recorded by the National Crime Records Bureau (Preliminary Analysis of Statistics Relating to the Offence of Rape as Reported by the National Crime Records Bureau for 2001‐13), with the new act being enforced in 2013, there was an expansion of the list of offences that constitute rape which had its impact on the figures reported in 2013. The highest percentage rise amongst the 28 States and UTs was in Delhi with 329% as compared to the figure reported in 2001.

Also, in Maharashtra, in 2013, the rise in the number of cases was more than three times the figure reported in 2001. Also, while 3,563 persons were convicted for rape in 2012, 5,101 culprits were convicted in 2013 indicating an increase by a little more than 30%. The number of acquittals rose by 18.79% in 2013 when 13,735 accused persons were pronounced not guilty as compared to 11,154 persons in 2012. In 2013, the proportion of cases where the offence of rape was compounded fell by a little more than 24% as compared to 2012.

But, while the new act had far reaching benefits on the statistical improvement in the occurrence and reporting of crimes, it failed to cover certain loopholes and was thus greatly criticized for several reasons. The law had been gender biased which was not acceptable to a united society where the key was equality for all people irrespective of gender. The new Act failed to meet this as it gave women the unchecked ability to commit the same crimes against which they seek protection against men with impunity.

The Criminal Law Amendment Act, 2013 had been also criticized by several human rights and women’s rights organisations for not including certain suggestions recommended by the Verma Committee Report like marital rape, reduction of age of consent, amending Armed Forces (Special Powers) Act so that no sanction is needed for prosecuting an armed force personnel accused of a crime against woman. The delay to act on these recommendations showed a lack of urgency in dealing with the issues of the Act which the public criticized.

The other issue with this failure was that the failure to criminalize marital rape placed India in the company of a select group of nations including China, Pakistan and Saudi Arabia. The main reason this was not done was because criminalizing marital rape would destroy the institution of marriage, and allows women to fabricate claims of rape, since rape within marriage was difficult to prove. However, this was criticized because it ignored the very specific harms induced by the crime of rape which violates a woman’s physical honor by forcing her to submit to unwanted intercourse.

Thus, the Criminal Law Amendment Act, 2013 has proven to be one of the most successful steps taken by the government to improve the general safety of women in Indian society while protecting them against crimes of a sexual and provocative nature and is thus called “one of the most concrete steps taken by the Indian government” to curb violence against women. This addressed an age old demand of the women of the country who wanted every such offense recognized. Despite its many benefits, just as no legislation can be perfect, this Act too failed to introduce marital rape under section 375 despite recommendations of the Verma Commission.

However, it must be understood that the Act alone cannot fight to seek justice for violence against women. The Government of India needs to take more personal steps such as large investments in building necessary infrastructure such as fast track women’s courts, and employing and directing more lawyers, women doctors to examine victims, and modernization of the police system across whole of India. Thus, despite its strong force, the 2013 Act is a placeholder in the ongoing struggle against sexual and gender-based violence in India. Until the current attitude to rape and sexual offenses in society in general is not changed, there will always remain moral conservatism and misogyny.

-Contributed by Dylan Sharma

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