THE EFFECTIVENESS OF THE CRIMINAL LAW (AMENDMENT) ACT, 2018 IN ADDRESSING CRIMES AGAINST WOMEN IN INDIA

This article is written by Isha Bajpai of 2^nd Year of B.B.A. LL.B. of University of Mumbai Law Academy, an intern under Legal Vidhiya

ABSTRACT

This article focusses on the Criminal Law Amendment Act, 2018 and its effectiveness. It discusses on what amendments were brought by this Amendment Act of 2018 and why these amendments were made. It also discusses whether the amendments have been effective or not. It has the mentions of the important case laws that compelled the Parliament to make such amendments. These very dreadful cases have been discussed in detail in order to understand the importance of this Criminal Law Amendment Act, 2018. This paper contains some statistics that show what changes have taken place after this amendment was brought These are the points that are broadly discussed in the article.

KEYWORDS

Criminal Law Amendment Act, 2018, rape laws, crime against women, minor rape.

INTRODUCTION

Crimes against women are one of the most common criminal offences that has affected half of the population in a very negative way. The Criminal Law Amendment Act 2018 is the 22^nd Act of 2018 that aims to amend the Criminal Law in India. This Act was mainly brought due to the increased brutality of children’s rape. This Act has majorly amended the punishment for rape in the Indian Penal Code, certain provisions of IPC, CrPC and POCSO. It has also amended some provisions regarding the Public Servants and Police Officers. This article focusses on the effectiveness of Criminal Law Amendment Act, 2018 in addressing crime against women. Hence, the requirement to discuss the provisions regarding Police Officers and Public Servants is not the aim. Even after the stringent amendments of 2013 made due to the Nirbhaya Rape case of 2012, the brutality of rape and numbers of rape cases haven’t gone down. There were cases of rapes of minor children which has provoked the Parliament for such an action. After the Kathua rape case the Parliament after seeing the aggression of the society have to take corrective measures for the same in the form of the Criminal Law Ordinance, 2018. This is only the part that is being reported. One cannot even image the cases of the unreported rapes of minors and adults. The Criminal Law Amendment Bill, 2018 got the President’s assent on 11^th August 2018.

OBJECTIVES

The objectives of this article are-

• To find out the changes that were brought by the Criminal Law Amendment Act, 2018
• To understand the Criminal Law Amendment Act, 2018
• To know the reason behind this amendment

CHANGES BROUGHT BY THIS AMENDMENT ACT

• To enhance the punishment of rape
• Adding new offences
•  for the rape of minor girls
• Replace the Criminal Law Amendment Ordinance, 2018
• Amends relevant provisions of sections of the IPC, CrPC and POCSO
• Sec 166A – public servant disobeys direction under law
• Sec 154 – if a police officer witnesses or has notice of any cognizable offence then the police officer is required to file an FIR. It the officer fails to do so then this is an offence.

Out of these 6 major changes the first 4 are related to offences against women which will be discussed further.

WHY THIS ACT WAS BROUGHT

The Criminal Law Amendment Act 2013 came after Nirbhaya case of 2012. But even after the strict laws made by this amendment, the rape cases in India increased and not just in number but brutality. This is just the very easy sentence that one can say but when a person understands the severity of these cases only then can change be brought in actual sense. Two rape cases that happened after the Amendment of 2013 compelled the Parliament on making these amendments. These are the 2018 Kathua rape case and the 2017 Unnao rape case. After this one of the changes in the language of the IPC was, in section 376 where the section for rape read, “punishment for a term which MAY extend to…” was now changed to “punishment for a term of AT LEAST… which may extend to…”

Kathua rape case[1]

This case is of Kathua, Jammu Kashmir, an 8-year-old child went missing on 10 January, 2018. She was gang-raped inside a temple by the main culprit with 2 others. This case was traced to the fight between two communities. The child was raped every day for 7 days and was not given any food for that time. She was of the Bakerwal (Muslim) community and this rape was planned to induce fear in the minds of the people of this community. She was strangled to death. According to the mother of the victim, there was mud in the mouth of her dead daughter when she saw her. It is alleged that the case was suppressed by the police officers.

Unnao rape case[2]

A 17-year-old girl was kidnapped and gang-raped twice within a period of a week by an MLA and his kins in a village in Uttar Pradesh. Not just this, her father was beaten by the accused’s brother and the co-accused. Her father died of the injuries when he was in the hospital. The family got continuous threats. The police did not hear the victim. In order to be noticed, she tried to kill herself in front of the CM’s house.

WHAT ARE THE CRIMES AGAINST WOMEN (IPC)

Sec 326 A – voluntarily causing grievous hurt by use of acid, etc.

Punishment of a term not less than 10 years which may extend to life imprisonment and shall also be liable for fine.

Sec 326 B – voluntarily throwing acid or attempting to throw acid.

In the recent years the cases of acid attack have increased. The punishment for the same is imprisonment for a term not less than 5 years which may extend to a period of 7 years and shall also be liable to pay fine.  

Sec 354 – Assault or criminal force on women to outrage her modesty

This offence includes many different classifications and discussed below. Imprisonment which may extend to 2 years, or fine or both.

Sec 354 A – Sexual harassment

Any unwelcome physical contact done towards a woman without her consent comes under this section. It may also include offences like asking for sexual favours, making sexual remarks, showing pornography, etc.

Sec 354 B – Assault or criminal force on women with the intent to disrobe

Shall be punished with imprisonment which shall not be less than 3 years but may extend to 7 years and fine.

Sec 354 C – Voyeurism

Watching, capturing image of a woman engaged in a private activity where she has an expectation of not being observed.

If a person sends someone’s private photos, etc. to someone or publishes it or if a person uploads any sexually explicit content of a women on any website, then that is also considered an offence under this section of IPC.

Punishment under first conviction – imprisonment of a term shall not be less than 1 year and which may extend to 3 years and shall also be liable for fine.

Punishment for second or subsequent conviction – imprisonment of a term that shall not be less than 3 years but may extend to 7 years and shall also be liable for fine.

Sec 354 D – Stalking

If a man follows any woman and contacts her or attempts to contact her even after clearly denying or showing disinterest is said to be stalking the woman. This offence does not require physical attempt, this can also be through the internet, when the man attempts to monitor the woman through the internet.

Sec 375 – Rape

When without the consent of the woman (of any age) if any man attempts to have sexual intercourse with the woman or does any other act that is mentioned under this section with her, it amounts to rape. The definition of rape mainly mentions that penetration of the penis into the vagina of the women is not required. After digitalisation of various aspects of the court’s day to day working the victims can send an email instead of going to the police station to file a physical FIR.

Sec 498 A – Domestic violence

When the husband or his relatives mental or physical pain

Sec 509 – Outrage modesty of a woman – through behaviour, signs, gestures, words, etc. Whistling or catcalling is also included in the same.

AMENDMENTS MADE BY THE ACT (2018)

This Amendment Act, 2018 makes amendments in two ways, that is, by changing the old sections or by adding new sections to IPC.

• 376AB – punishment for rape on woman under 12 years of age. Here, the word woman is mentioned as the definition of man and woman is difference in law as compared to the social meaning of man and woman. The definition of man and woman is given under Section 10 of the Indian Penal Code.

Punishment – Rigorous Imprisonment SHALL not be less than 20 years and may extend to life imprisonment.

Under section 376(2) it has been clearly mentioned that who gets the fine that has been submitted to the court by the convicts of offences under this section. Generally, any such fine goes to the court and then later to the State government. However, under this section the fine is received by the victim for the medical expenses and the rehabilitation of the victim.

• 376 DA – a new section has been added for gang rape of woman under 16 years of age, which comes under section 376 D that is gang rape.
• 376 DB – Gang rape of women under 12 years of age
• Sec 228 A

Disclosure of identity of victim of certain cases. This is generally used in cases of rape where disclosing the identity of the victim may invite threat. The only exception under which such disclosure may be permissible is that if the victim says that she is okay with disclosing her identity.

• 376 – Punishment of rape

376 A mentions about vegetative state. In the case of Aruna Shanbaug[3] the first passive euthanasia was permitted. When due to the commission of rape on a woman she suffers injuries due to which the victim dies or is in vegetative state then the punishment for such an offence is rigorous imprisonment which shall not be less than 20 years and may extend to life imprisonment. Here, life imprisonment would mean, imprisonment for the remainder of the convict’s life.

376 C mentions about the sexual intercourse by persons in authority such as armed force person, hospital staff, etc.

Age of woman	Offence	Before	After
16+	Rape – min	7 years	10 years
	Rape – max	Imprisonment for Life	Imprisonment for life
12 to 16 years old	Rape – min	10 years	20 years
	Rape – max	Imprisonment for Life	Imprisonment for Life
	Gang-rape – min	20 years	Imprisonment for Life
	Gang-rape – max	Imprisonment for Life	Not fixed
Below 12 years of age	Rape – min	10 years	20 years
	Rape – max	Imprisonment for Life	Imprisonment for Life or death
	Gang-rape – min	20 years	Imprisonment for Life
	Gang-rape – max	Imprisonment for Life	Imprisonment for Life or death

6

Amendments relating to the Evidence Act, 1872.

The section 53 A of the Indian Evidence Act, 1872 deals with the evidence of character or previous sexual experience not relevant in certain cases substituted with Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB.

Amendments relating to the Code of Criminal Procedure, 1973

• The cases of these offences – 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E must be completed within a period of 2 months, and that of a child within 3 months.
• If there is an appeal regarding these cases – 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB or Section 376E, it must be disposed off within a period of 6 months from the date of the filing of that appeal.

EFFECTIVENESS OF THE CRIMINAL LAW AMENDMENT ACT, 2018

The criminal justice system works two ways hand in hand – the authorities and the society. The parliament has made changes in the rape laws by extending the punishment and decreasing the time for the trial and disposal of the rape cases in India. However, the two main parties that affect this system and due to whom the system works are the authorities and the society. In India the social stigma of rape cases is still high and women prefer to remain quite instead of raising their voice. This being the first step, says a lot about why the unreported cases are so high in India. The police, judiciary, etc. take a very long time in deciding the case which leads to delayed justice.

A woman is raped every 15 mins in India, which brings us to 34,560 women being raped every year, and since only 1% of the rape cases are reported as per surveys. This means that around 34,00,000 women are raped every year. This figure is a disturbing one.

In a report submitted by the Statista Research Department in 2021. The state where the highest rape cases were reported was Rajasthan (6000+) followed by Madhya Pradesh (almost 3000). A total of 31,677 cases were reported in that year. The maximum number of cases reported from between the period of 2005 – 2021 was in 2016 where 38,947 cases were reported. The minimum was in 2005 where approximately 18,359 cases were reported.

YEAR	reported rape cases in India
2018	33356
2019	32032
2020	28046
2021	31677

The statistics show the number of cases reported and not the actual number of rape cases in India. Hence, the clear effectiveness of this amendment cannot be seen in short-term or through statistics. We will have to wait for a long time to know the actual effectiveness of the amendment. This does not mean that we will not make changes and try to have a better situation. In fact, only by doing this the long-term results can be seen in terms of more confidence in woman, better mentality of both men and women, safe and secure environment inside as well as outside home.

There is one state that has showed some progress in implementing the new provisions of the 2018 amendment act. This state is Madhya Pradesh. The provisions for speedy trial and investigation for rape cases has been implemented by the state. The act aims for the speedy trials and fast investigation which has been shown in the State of Madhya Pradesh. The investigations are being completed within 60 days in 70% of the cases.

CRITICISM

1. Gender Bias

The law in general is gender bias. The offence of rape and other such offences are committed on women way more than on men but this does not justify there not being any law for the protection and safety of the men.

2. POCSO

The difference in the punishments for rape of a minor boy victim and minor girl victim.

CONCLUSION

There will be many amendments that will come with time. The main purpose of these amendments is to bring changes in the society. Children must feel safe wherever they are. These changes are on paper but both the authorities as well as the society must work towards the betterment of the living space. We must try to eliminate as many bad things that surround us and prove to be good citizens. There can be as many amendments that may come in the following years but since change begins within and only then it shows outside and on a wider scale. We must first begin with us and make changes in our lives. The most important thing being by not remaining quite and always find a voice for your words. Education can play a major role in this. Not just for men but also for women.

REFERENCES

1. Aruna Shanbaug Case, Writ Petition (Criminal) NO. 115 OF 2009, https://indiankanoon.org/doc/235821/
2. Mohd. Akhtar v state of Jammu and Kashmir (Kathua rape case) on 7 may, 2018, Writ Petition (Criminal) No.85/2019, Writ Petition (Criminal) No.85/2018, https://indiankanoon.org/doc/62196194/
3. Kuldeep Singh Sengar vs State Of U.P. & Anr. on 6 September, 2019
4. Code of Criminal Procedure, 1973, No. 2, Acts of Parliament,1974 (India)
5. Indian Penal Code, 1860, No. 45, Acts of Parliament,1860 (India)
6. Indian Evidence Act, 1872, No. 1, Acts of Parliament,1872 (India)
7. Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India)
8. Indian Kanoon, www.indiankanoon.org  
9. The Hindu, www.thehindu.com
10. India Code, www.indiacode.in
11. Lawordo, www.lawordo.com ,
12. Blog ipleaders, www.blog.ipleaders.in
13. Insights on India, www.insightsonindia.com
14. IAS Parliament, www.iasparliament.com
15. Lawyers Club India, www.lawyersclubindia.com

---

[1] Mohd. Akhtar v state of Jammu and Kashmir (Kathua rape case) on 7 may, 2018, Writ Petition (Criminal) No.85/2018

[2] Kuldeep Singh Sengar vs State Of U.P. & Anr. on 6 September, 2019

[3] Aruna Ramchandra Shanbaug vs Union Of India & Ors, WRIT PETITION (CRIMINAL) NO. 115 OF 2009

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.