Shedding Light on the Criminal Law (Amendment) Act, 2018 – A Change in the Rush?
Author : Saundarya Sinha
VOLUME 1 ISSUE 1
JANUARY 2019
ISSN : Applied For…
Abstract
In the year that has passed, the country has observed several instances, that happened to cause a massive uproar in the society, primarily because of the unspeakable nature of those acts. The Kathua Case and the Unnao Case helped the society realize of the grievous nature that the offence of rape was, and the threat it posed. What followed suit was a roaring demand for a stringent set of laws, and the Government gave that to the agitated public in the form of the Criminal Laws (Amendment) Act, 2018. What seemed at first as a stringent set of laws, amending the provisions governing offence of rape, was welcomed with applause. However, the closer perusal of the changes that were implemented would reveal the gaping flaws that were accompanied by these changes, which was nothing more than a mere hasty effort of the government to pacify the agitated public. This article is an effort to analyse the changes that the Criminal Laws (Amendment) Act, 2018 has brought to the criminal justice system prevalent in the country. Although the Amending Act of 2018 has brought changes in several legislations, this article shall assess the changes implemented to the Indian Penal Code and the Code of Criminal Procedure, which happen to be the basis of the criminal justice system in the country. The Article has also attempted to briefly analyse the lacunae that accompany these changes, and how the ensuing implication will hinder the criminal justice system, whether imminently or in the long run. The paper concludes with a summary of the gaping flaws in the changes made.
Keywords – Amendment, Lacunae, changes, criminal justice, flaws.
Shedding Light on the Criminal Law (Amendment) Act, 2018 – A Change in the Rush?
- Saundarya Sinha
Introduction
There has been an unnatural surge in the heinous incidents within the country, and it is only obvious that the society would demand stringent laws to be in force, of the nature that would help facilitate the curbing of such incidents. The nation has been in a state of uproar, where the Indian society observed a soaring public resentment over the most heinous incidents that took place in the year 2018. Of such an unspeakable nature were the Kathua and the Unnaorape cases that took place this year, and it was only natural for the society to demand more stringent laws for offenders. In the history of incidents of rape in India, more often than not, the legal response in the form of a new amendment being introduced is often of a hasty nature and does not always take into considerations all the factors before being promulgated. This hasty measure, which may placate the public and help subside the soaring resentment for a little while, but often leaves behind loopholes that happen to be exploited in the later stages of the implementation of the laws. The Kathuaand theUnnaocases of rape were a reminder of the heinous incident that occurred in the year 2012 and was the founding reason for the radical amendments that were introduced to the Indian Penal Code for matters relating to the cases of rape.[1] The Nirbhaya Incident was the reason why there came about a certain awakening for the Government and the Society alike, to deal with the matters concerning rapes happening in the society with a grain of severity, and also give it the due recognition as one of the main societal issues faced by the women in the society.
The Kathuacase was none different and was horrifying in an equal measure. The abduction, rape and then followed by murder, of the 8-year-old girl, AsifaBano, near Kathua, a small village in the state of Jammu and Kashmir, sent ripples of horror and hatred down the citizens of the country, as well as the globe.[2] The incident was horrifying in itself, and more so was the reason why it was committed, which was to drive out the community to which the victim belonged, out of the area.[3] The event attracted a plethora of contempt from the people around the world, and the resultant uproar forced the government of the country to take immediate remedial measures, and thus came the Criminal Law (Amendment) Ordinance, 2018. The ordinance was later assented to by the President, and it came into force on April 21, 2018. However, there is still deliberation ongoing from the time when the ordinance was implemented, as to whether the Government had carried out thorough research into crafting the provisions of the Ordinance, before having hastily promulgated the same.[4]
However, after the Lok Sabha and the Rajya Sabha passed the Bill as well, on July 30 and August 6, 2018, respectively, the Bill further received the Presidential Assent on August 11, 2018, and was later implemented as the Criminal Law (Amendment) Act, 2018.[5] In essence, this Amending Act, which replaced the ordinance in force earlier, and did so with a retrospective effect, happened to bring changes to four legislations in entirety, which are – the Indian Penal Code, 1860 (IPC)[6], the Code of Criminal Procedure, 1973 (Cr.P.C.)[7], the Indian Evidence Act, 1872 (IEA)[8] and the Protection of Children from Sexual Offences, 2012 (POCSO)[9].
In this Article, we shall explore the changes that have been made to the IPC and the Cr.P.C. by the Amending Act of 2018, since these two laws are two of the most prominent pieces of criminal legislation governing the criminal offences in the country. It is noticeable that the changes that have been implemented, have been done in a very short time interval, which is uncharacteristic of the laws that are implemented in a natural course. However, it so appears that the aim of the government in the implementation of these laws was to pacify the public that stood outraged at the events that had unfolded in recent. The flaws of these changes so implemented have been mentioned alongside with the description of these changes, and also have been discussed in the later stages of the Article.
Changes Made to The Indian Penal Code, 1860
Before the Criminal Law (Amendment) Act, 2018 (hereinafter referred to as the ‘CLAA’), the IPC had been amended by means of the Criminal Law (Amendment) Act, 2013. However, the CLAA further amends the IPC in a different way, since while at one hand it amends the existing provisions of the IPC, at the same time, the CLAA also has added some separate provisions to the existing act, thereby adding new offences to the criminal laws existing as they are. However, whether the sought effect of these changes, which is to induce a deterrent effect in the society to curb sexual offences against minors, is being achieved or not, is still a questionable aspect of these rushed changes.
The most prominent change that the CLAA has introduced to the IPC is the enhancement of the punishment that had been previously provided for in the Code. This much is evident from a brief overview that the CLAA has introduced, and is another doubtful aspect of the efficacy of the changes that have been introduced. On the contrary, the nature of this change so brought about does not take into account the nature of the sexual violence in the country, nor does it include in it the founding principles of the criminal legislation in our country.
The most prominent change brought by the CLAA is to the provisions punishing the offences of rapes in the country i.e. the Sections 375 and 376, IPC. If one reads these provisions of the Code with a careful eye, it is evident that the provisions distinguish between two forms of the offence – rape simpliciter[10], and the other aggravated forms of rape.[11] The prior is the normal offence, and tends to attract punishment not so severe, but, on the other hand, the second form of rape, which is committed in an aggravated form, has considerably higher punishment. Section 376 lays down 14 situations, within which if the act happens to fall, it will be considered as an aggravated form of rape, due to the presence of the essential of aggravation.[12]
Prior to the CLAA, the maximum punishment that was awarded for rape under Section 376(1) i.e. the normal form of the offence, was imprisonment between 7 years and ranging all the way to life imprisonment. However, the CLAA has amended this, and as of after the changes, the minimum punishment for the offence u/S. 376(1) has been increased to a period of 10 years.[13] In essence, this means that now, the punishment under both sub-sections i.e. Section 376(1) and 376(2), has been levelled and made the same. While it may appear a consolidates step against the offence of rape, it has some considerable effects that are worrisome, such as the blurring of the distinction the previously existed between the simple form of rape, and the aggravated form, for starters.
In addition, another change that has been introduced to the punishment for offences of rape was to the provision that concerned the offence being done against the girl under 16 years.[14] However, this particular clause has now been omitted, and instead, the sub-Section (3) was introduced by the CLAA.[15] This change now introduced provides for minimum punishment for a period of 20 years, and this may stretch up to life imprisonment for the offender, however, this is a questionable aspect of the nature of this punishment, especially from the perspective of the constitutional validity of the nature of this punishment. A punishment for a period of 20 years under Section 376(3) is questionable, and hard to justify. The current society is now unknown to sexual relationships between adolescents, and awarding such a harsh judgment in such a situation would be unreasonable, at least. In a situation where the girl under the age of 16 years of age enters into a sexual relation with a man of 18 years of age, which would be a case of statutory rape, since the consent would become irrelevant, since the law believes a woman under 16 years of age to be unable to think in a rational manner.[16] Thus, a situation identical to this would invoke the application of Section 376(3) of the Code, but a sentence of 20 years of minimum imprisonment, in addition to the absence to judicial discretion for the same, happens to be too unreasonable.[17] This furthers the fact that the legislators did not think through in entirety the proposed changes to the existing laws, since awarding a man of 18 years the punishment for life imprisonment, would imply that the man would not be released for the remainder of life, something completely irrational. Especially, in the absence of the judiciary discretion, which makes the sentence mandatory, the punishment so being awarded must be proportionate to the crime and must include the variety of the circumstances into consideration.[18]
At the same time, the CLAA also has introduced several new offences into the Indian Penal Code. The provisions that have been included, provide the punishment for conducting the offence of rape against a minor girl under the age of 12 years, and the section provides that the offender may be provided with the punishment of minimum 20 years of imprisonment, which may also extend to imprisonment for life, while the capital punishment has been set as the bar for the maximum punishment under this section.[19]On the other hand, the other sections that have been introduced further the provisions that prior existed for the offence of gang rape. After the CLAA, the offence of raping a girl under the 16 years of age now attracts a mandatory life imprisonment sentence.[20] At the same time, the offence of rape, if committed against a girl under the age of 12 years now attracts enhanced punishment, which ranges from a minimum of life imprisonment, and extends to even the death sentence to the offender.[21] The repercussions of these changes so introduced by the CLAA in 2018 as a hasty measure will be discussed in the later sections.
Changes Made to The Code of Criminal Procedure, 1973:
Before the CLAA was enforced in 2018, the Cr.P.C. was last amended in a slight manner by the Amendment that was enforced in 2013, but as of now, the CLAA has further amended the Code, which will be discussed below.
The Code of Criminal Procedure is essentially a procedural law and lays down the mechanism for the implementation of the criminal laws as have been laid down in the various criminal laws. It is undeniable that the role that is played by the speedy investigation in the cases of criminal nature, and when such speedy investigation is neglected, and inordinate delays happen in the process of the investigations, this causes several problems overall, and may often result in the tampering of the evidences. As it was before, the Cr.P.C. demanded that the investigation process in the cases where the offence of rape has been committed against a minor girl, must be completed within a period of 3 months, but the CLAA has made changes to this time period, and now demands that the investigation process must be completed within a period of 2 months, instead of 3. This change has been mandatory in all categories of the offences of rape, be it rape, gang-rape, and even the rape done against minor girls below 16 or 12 years of age. However, the CLAA continues to remain silent for the situations as to what shall follow if the concerned authorities are unable to complete the investigation process within a period of 2 months and if the appeal is unable to be disposed within a period of 6 months. It I evident from the perusal of the statistics from the NCRB that the pendency of the cases as of the year 2016, the percentage of cases pending remains at 30.3 per cent, and as many as 16,678 cases remain queued for investigation processes.[22]
The provision of appeals in the Cr.P.C. does not lay down any specific provision which concerns with the disposal of the appeals that are filed in the cases of criminal nature.[23] This is what gives a credible basis to the claims made that the appellate process under the Cr.P.C. works to become a hurdle for the implementation of speedy justice to the public[24], and the Law Commission too, has expressed in its opinion that there needs to be a change that lays out a mechanism which helps speedy disposal of appeals in the cases of rape.[25] To that effect, the CLAA has now added a sub-section to Section 374 of the Cr.P.C., that mandates that the appeals must be disposed of within a period of 6 months.
Aside from that, Cr.P.C. also includes several provisions that provide for the anticipatory bail being granted to the individuals.[26] The anticipatory bail is usually made available to the people who are under the fear that they may be arrested for having committed a non-bailable offence. However, the situation after the enactment of the CLAA stands changed, and the CLAA has included a severe provision in the form of a sub-section being introduced to Section 438, which makes the availability of anticipatory bail to the offenders who anticipate their arrest for having committed the offence of rape against the minors under the age of 16 or 12 years. However, this effort does not have an effect that is absolute in nature. Ever since the case of Maneka Gandhi v. Union of India[27], the courts have approached the cases of anticipatory bail with the notion of advancing fairness and the courts have resorted to invoking the doctrine of proportionality. The misuse of the existing mechanisms of laws has caused to spring to life several measures that have been intended to curb this misuse, such as the blanket removal of the provision of availability of anticipatory bail in the State of Uttar Pradesh since the year 1976.[28] Yet there have been cases, where the absence of this provision has been bypassed in several other ways, which was evident in the case of Amaravati v. State of U.P.[29], and also in the case of Lal KamlendraPratap Singh v. State of U.P.[30].
There exists no certainty that the removal of the provision of anticipatory bail in the cases of rapes and gang-rapes, as has been sought to be done by the CLAA will be an effective measure to curb the instances of rape in the country, since as is evident from the precedents, the lack of anticipatory bail has not been a considerably potent hurdle in the past.
Conclusion
Indeed, a change in the penal provisions within the Indian Penal Code, and in the mechanisms that exist for their implementation in the Code of Criminal Procedure was called for, in light of the events that had unfolded earlier this year, but there was a more acute need of thinking them through. The amendment so implemented in the form of CLAA is apparent to be lacking, and it is as clear as day that the changes needed far more deliberation than was accorded to them. Be it the changes that were made to the existing sections, or the sections that were added as new offences to the Indian Penal Code, all have left behind several lacunae, and also have considerable implications because of the way that they exist as of now.
For instance, the new provisions that have been included into the Indian Penal Code, for the offences of rape being committed against minors under the age of 12 and 16, the punishment awarded is considerably stringent, and that could run backwards for the law enforcement agencies. This is chiefly because of the fear of such a stringent punishment would cause a decline in the reporting of the child marriages. Capital Punishment, in this case, will indeed act as a deterrent factor, but the result would be counterproductive, since the reports of rapes in the cases where the victim is in a married relationship and under the age of 12, will go drastically go down due to this change.
The changes so implemented by the CLAA also run counter to what has been provided under the Juvenile Justice Act. As of after the enforcement of the CLAA, the Sections 376DA and 376DB have made the punishment as mandatory to the offenders, which is contrary to what the Juvenile Justice Act states. The provisions of the JJA prohibit the sentences of life imprisonment or death sentence to be awarded to a minor who stands in a conflict of law.[31] Contrary to that, the Section 376DA has provided the life imprisonment to be a mandatorily awarded to an offender who has committed an offence u/S. 376DA. This intersection is evidence that the changes were not thoroughly assessed before having been implemented by the Government.
In regards to the changes being implemented to the Code of Criminal Procedure, the changes are hasty as well, which is a situation identical to the changes brought about in the Indian Penal Code. Although the CLAA brought changes to the mechanism of appeals in the Code, yet it persisted to remain silent in cases where the proposed changes were not fulfilled. The appeals now need to be dismissed within a period of 6 months, in accordance with the changes that the CLAA introduced to the Section 374 of the Code, but the repercussions that should follow in case of non-compliance have not been provided for.
This plethora of blunders is evidence for the fact that the changes that have been made are redundant, and not effective, in their pursuit for achieving what they seek. The sought after deterrence by the lawmakers is not achieved in full by these changes, rather they only serve to provide the offenders with another wave of lacunae to exploit for being charged with the offences. The changes, when hastily implemented tend to undermine the quality of law reforms and leads to congestion within the Judicial system. Such a hasty measure should be avoided, and proper deliberated should be done where its due.
[1]Criminal Law (Amendment) Act, 2013. Available at – http://harsamay.gov.in/PDF/The_Criminal_Law_(Amendment)_ACT_2013.pdf.
[2]“The Brutal Crime that has Kashmir on Edge”, BBC News, 12 April, 2018, Available at – https://www.bbc.com/news/world-asia-india-43722714.
[3]Eltagouri, Marwa (11 April, 2018), “An 8-year-old’s rape and murder inflames tensions between Hindus and Muslims in India”, Washington Post, ISSN 0190-8286, Available at – https://www.washingtonpost.com/news/worldviews/wp/2018/04/11/an-8-year-olds-rape-and-murder-inflames-tensions-between-hindus-and-muslims-in-india/?noredirect=on&utm_term=.bd3b255c25f3.
[4]“Was any study done before bringing out the rape ordinance?”, The Hindu, April 24, 2018, Available at – https://www.thehindu.com/news/cities/Delhi/was-any-study-done-before-bringing-out-rape-ordinance/article23651748.ece.
[5]The Criminal Law (Amendment) Act, 2018 (22 of 2018), Available at – https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf.
[6]The Indian Penal Code, 1860 (Act 45 of 1860), Available at – https://www.ncib.in/pdf/indian-penal-code.pdf.
[7]Code of Criminal Procedure, 1963 (Act 2 of 1974), Available at – https://indiacode.nic.in/acts/11.%20Code%20of%20Criminal%20Procedure,%201973.pdf.
[8]The Indian Evidence Act, 1872 (Act 1 of 1872), Available at – https://indiacode.nic.in/acts/5.%20Indian%20Evidence%20Act,%201872.pdf.
[9]Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012), Available at – http://wcd.nic.in/sites/default/files/childprotection31072012.pdf.
[10]Punishable u/S. 376(1), IPC.
[11]Punishable u/S. 376(2), IPC.
[12]Section 376(2), sub-clauses (a) to (n), Indian Penal Code, 1860.
[13]CLAA, Section 4.
[14] Earlier, Section 376(2)(i), Indian Penal Code, 1860.
[15]Supra note 13.
[16]Vibhute, K.I., 2017, PSA Pillai’s Criminal Law, 824 (Lexis Nexis, 13th edn.).
[17]Satish, Mrinal, 2016, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India(Cambridge University Press).
[18]Singh, Indira J., “Stringent punishment to score political points” Deccan Herald, April 28, 2018,Available at: https://www.deccanherald.com/national/sunday-spotlight/stringent-punishments-score-political-points-667220.html.
[19]Section 376AB, IPC.
[20]Section 376DA, IPC.
[21]Section 376DB, IPC.
[22]National Crime Records Bureau, Report on Crime in India 2016, 148-149 (Ministry of Home Affairs, 2017).
[23]Section 374, Cr.P.C.
[24]T. Mehta, Neha, “The slow road to justice for India’s rape victims”, Al-Jazeera, Aug. 18, 2016, Available at: https://www.aljazeera.com/indepth/features/2016/08/slow-road-justice-india-rape-victims-160817 095526223.html.
[25]Law Commission of India, 172nd Report on Review of Rape Laws, (March, 2000); Law Commission of India, 84th Report on Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence (1980).
[26] Section 438, Cr.P.C.
[27]Maneka Gandhi v. Union of India (1977) 1 SCC 248.
[28]Section 9, The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (Act 16 of 1976), Available at – http://www.lawsofindia.org/pdf/uttar_pradesh/1977/1977UP18.pdf.
[29](2005) Cr. L.J 755.
[30](2009) 4 SCC 437.
[31]Section 21, Juvenile Justice Act.