Criminal Law(Amendment) Act 2018 | Author : P. Yuvasree & Co-auhor : G. Shapna | Volume II Issue IV |

 ABSTRACT :

     This paper views the target of the legislators in amending the laws and mainly focusses on the recent amendments made in the criminal law. Recently, such amendment in the criminal law was made on the April month of this year through an ordinance passed by the President with his power conferred under Article 123(1) of the Constitution. In our Sixty ninth year of the Republic India(2018), an ordinance was passed in order to amend the Criminal law with its foremost aim to upturn the stringency of the punishment for rape. Also, in this paper, the author put forward some ideas to make the readers understand about the significance of the amendments made in the Criminal law in 2018 and also to alert about the amendments made in the Criminal law from the year 1885 to 2017. In the first part of the paper, the author made an attempt to explain the reasons behind the amendments in the Criminal law (i.e) the cases and circumstances which led to the passing of an ordinance in 2018. The paper also depicts some of the sample caselaws which stand as a background for the Criminal law amendment act in 2018. In the following part of the paper, the author makes an effort to describe the original laws and aftermath of those amendments as how it created an impact in our country. In the Criminal Law(Amendment) Act 2018, the  amendments were made in the Indian Penal Code(1860), the Indian Evidence Act(1872), the Code of Criminal Procedure(1973), and the Protection of Children from Sexual Offences Act(2012).  It is hoped that this paper will provide some additional data regarding the Criminal law Amendment Act(2018).

KEYWORDS:Target, Ordinance, Stringency, Amendments, Significance, Alert, Evidence, Offences, Impact, Effort, Data.

 I.INTRODUCTION:

This paper mainly covers the aim of the authors to explain the amendments made in the year 2018 in the criminal law (primarily IPC and POCSO). The main reason for the recent amendment in the Criminal Law is the increasing number of heinous crimes like rape in our country. So the amendment in 2018 augmented the punishment for rape by alteration in the previous provisions (amendment of section 376) and insertion of new provisions in the IPC (new sections like section 376AB, 376DA, 376DBare added) and also some changes have been made in the POCSO (The Protection Of Children from Sexual Offences Act, 2012).

II.NATURE OF THE AMENDMENT:

     The Criminal Law (Amendment) Bill was introduced in the LokSabha in July 23, 2018 and its Ordinance was passed in April 21, 2018 which has its main focus to further amend the provisions regarding Rape in the Indian Penal Code(1860), Code of Criminal Procedure(1973), Indian Evidence Act(1872), Protection of Children from Sexual Offence Act, 2012. But in this paper, authors chiefly try to put forward the amendments made in the IPC and POCSO alone.  Since the study questions the nature of gender neutrality in the provisions of rape in the IPC and POCSO.

1. In IPC, under the chapter “ Offences Against Human Body” from the section 299 to 376 , where the provision for rape has also been covered in it in the sections 375 and 376.The ordinance was passed to amend the section 376, which deals with the punishment for rape. After this amendment, the minimum punishment for rape has been increased.                                       

• The minimum punishment for rape of women has been increased from seven years to ten years.
• The minimum imprisonment for rapeand gang rape of girls below 12 years of age, will be twenty years, which is extendable to life imprisonment or death.
• For the rape and gang rape of girls below 16 years of age, the minimum punishment is imprisonment of twenty years which extends to life imprisonment.
• If a girl aged between 12 and 16 is a victim of gang rape, then minimum punishment is life sentence.

2. Since, 90 % of the rape victims reported were under the age of 16, in order to prevent the child rape cases, the Criminal Law Amendment Act, 2018 amended the POCSO Act, 2012, where under section 42 of the POCSO Act, the newly amended provision for rape in the IPC is applicable to the girls below the age of 12 years. This act provides death penalty as the maximum punishment for rape of children less than 12 years of age under the Section 4, 5 and 6 of the POCSO Act.

• In case of gang rape of children aged below 12 years of age, the offence is punishable with minimum sentence of life imprisonment which extends to death penalty.
• The repeat delinquents will be provided with death sentence.

Also, the bill provides a time period for investigation in cases of rape of girl children under the Code of Criminal Procedure, 1973.

The investigation into the rape of children must be disposed of within 2 months. If there is any appeal, then the bill states that the appeal against a sentence by the trial should be completed within 6 months. Under this bill, in case of rape of children below 16 years of age, then the convict is not entitled for anticipatory bail.

III.BACKGROUND OF THE AMENDMENT:

     The Criminal Law Amendment Act is also known as ‘Nirbhaya Act’ as it amended the provisions relating to sexual offences. All such amendments were the consequence of the brutal rape and consequent death of a 23 year old woman in a bus in Delhi. As said earlier, the Criminal Law Amendment Act, 2018 amended the provisions of rape in the Criminal laws as a result of two rape incidents which stunned our nation. The two main cases which stood as a background for the ordinance in 2018 are Kathua rape case and Unnao rape case. Both of these cases triggered the demand for this amendment.

KATHUA RAPE CASE:

     In this case, an 8 year old girl was raped in Kathua, in Jammu and Kashmir. Here the rape was alleged that she was kept in a Shrine for several days and raped continuously and later murdered. The case was reported from 10^th January to 17^th January, 2018.

 UNNAO RAPE CASE:

In this case, a teenage girl accused an MLA for raping her in June 2017. She tried to set herself on fire in front of the MLA’s residence in Unnao, in Uttar Pradesh.

State of Madhya Pradesh v Sheodayal (1956)[1], the High Court opined that under the purview of section 354 of IPC, the modesty of women can be out rated by another women. Also, in Priya Patel v State of Madhya Pradesh[2], it has been a question whether women can commit a gang rape against another women?

IV.SIGNIFICANCE OF THE STUDY:

There is a significance to study the Criminal Law Amendment Act, 2018. As this is one of the best measures taken by the legislature against rape. One among the main factors is 21% of the rape victims were minor girls, so there is a need for the stringent punishment for the convicts of rape, especially a specified law or act like POCSO to punish the rape offenders of children below 12 years of age with capital punishment.  

1. ISSUES OF THE STUDY:
2. Whether the provisions for rape under IPC is gender neutral?
3. Is there any law to protect men from sexual harassment ?
4. Are the provisions for rape under the IPC covers transgenders?
5. Has the punishment for sexual offence of boys altered by this bill?

1. STATEMENT OF THE PROBLEM:
2. Whether the provision of rape under IPC is gender neutral?

No, the thing which the author tries to explain here is there is no gender neutrality in the definition of rape in IPC. The provision of rape in IPC explicitly offends the male convicts , as the definition of rape under section 375 starts with , ‘A man is said to commit “ rape”, hence it is violating the fundamental rights  of the Constitution such as Article 14 ( right to equality), Article 21 ( right to life and personal liberty).  Also the punishment for rape under section 376 of IPC impliedly protects the women of all age excluding men. World countries like Canada, Finland, Wales, Ireland and England has adopted the gender neutral laws, since 5 to 10% of the men have experienced sexual assault in their lifetime. In India, section 377 of the IPC was the only section under which men can file a complaint of sexual harassment but at present there is no scrutinised laws are meant for governing men. Even gender neutral laws are gender oriented.

2. Is there any law to protect men from sexual harassment?

No, in our country there is no measure taken by the Legislature to enact a law for protecting men from sexual harassment. Many might think that men would not be a victim of sexual harassment but it is a recent survey stating that about one third of all the working men has reported atleast one form of sexual harassment. Among the 7,809 sexual harassment cases filed in 2011, 16.1 % were filed by men. By 2013, this had risen to 17.6% from this data, we can derive a conclusion that in our country there exists men who face serious consequences which stem from sexual trauma, though it is not often. Hence there should be some extensive research looking at the difficulties and emotional prospects of the men and how they are affected. There is a stereotype and social stigma that men are more powerful than women. This makes the notion of male victims of sexual harassment as insensitive. But this is not fair.

3. Are the provisions for rape under IPC covers transgenders?

No, the IPC provisions of rape does not include transgender. There is not even a mention about them  in the provision.  If the complaint has been made by a transgender under section 354-A of IPC, it has to be taken in accordance with law, in terms of decision of the Honourable Supreme Court in the case of National Legal Services Authority v Union of India[3].Also, this order has been passed in the case, Anamika v Union of India and other[4].There is a confirmation comes amidst over the Transgender Persons ( Protection Of Rights) Bill, 2018 passed by the LokSabha. This bill has been destined by several activists as well as members of the transgender community of our country, especially because of the denial of their right to self-identification . Though certain provisions of the Bill face a severe opposition, still there prevails some provisions that provide the maximum rights for transgenders.

4. Has the punishment for sexual offence of boys altered by the Bill?

Most probably, the answer is No, since  there is no change in the provisions of sexual harassment of minor boys after 12 years of age  in the POCSO Act. Though the POCSO Act is gender neutral, the punishment for sexually harassing minor boys hasn’t changed for the boys greater than 12 years of age. Here is a table depicting the clear picture of the punishment for sexual offence against minor boys.

 VII. AIM AND OBJECTIVES OF THE STUDY:

• To analyse the deterrent effect of the punishment for rape convicts. To find out the definition of the rape in IPC is gender neutral.
• To study the gender neutrality of the POCSO Act, 2012.
• To deal with the recent amendments made in the criminal laws.
• To make sure that there is no specific provision for rape against transgender and male.
• To find out the importance of the alterations made by the bill.
• To make a note of the provisions of rape that has been remain unchanged.

VIII. PROPOSITIONS OF THE STUDY:

The followings are the propositions made before the present study:

• The Criminal law amendment act 2018 , has been furnished resulting in speedy trials and settlement of cases.
• The deterrent effect of the act by increasing the punishments will show down the crime rate.
• This act concerns vigilance for rape victims, gender irrespective.

1. METHODOLOGY:

     A research can be defined as a set of activities for an advancement of knowledge. Research methodology is a way to systematically solve the problem. The present research is a blend of  doctrinalresearch. It is completely based on collection of data, observation, refining and analysing data.

1. HYPOTHESIS:

• The retrieved amendment must break the silence on sexual harassment of male and transgender.
• The amendment must be made regarding increase in compensation for the male child victim and increasing the punishment of perpetrator under POCSO Act.
• There is no point in opening the doors of justice without ensuring people with strict protection from evils.
• Victims and witnesses should feel free to move to courts. Witness should not be influenced by coercion or any such immoral acts. The Supreme Court has granted permission for the Witness Protection measures which was initiated by a public interest litigation.

 CONCLUSION:

    The word “victim” has traditionally been understood only as a woman. It is quite unfortunate, that the laws are female oriented and considering other genders as less serious. Rape or harassment or any other sexual orientation is not only to satisfy the sexual urge but it is also the manners of showing dominance or superiority of one caste, class, religion over other.

     So the consequences are anyway going to be adverse on the trash by discrimination and all the genders will experience the same as a result. So, the authors has overlooked the plight of males and transgenders (gender neutrality) and safety of rape victims which demands corrections.

“Male child sexual abuse is an ignored reality in India”

• Maneka Gandhi.

[1] Annavarapu , “Heteronormativity and rape” , 2013 in the official journal of the South Asian Society of Criminology and Victimology.

[2]Priya Patel vs. State of Madhya Pradesh, 2006, SCC 263

[3]National Legal Services Authority  vs. Union of India, 2014 5 SC 438

4.Anamika vs. Union of India, W.P. (CRL) 2537/2018