Reason behind the implementation of Criminal Law (Amendment) Act 2013:

Nirbhaya Case [Mukesh and Anr v. State (NCT of Delhi) and Ors]

Facts of the case
This case is famously known as the Nirbhaya case. On 16 December 2012, a 23-year-old woman, a medical student, was gang raped by six men on the bus. She had boarded with a male friend on the way home. The six men included a driver and a juvenile. Firstly, the men started abusing them, passing obscene remarks, and then they assaulted her male friend and dragged her to the back of the bus to commit rape.

She was brutally beaten and raped, and the perpetrators inserted a rod into her body and then, both of them were thrown naked in the middle of the highway. On 29th December 2012, the woman, named Nirbhaya, succumbed to her injuries in a hospital in Singapore due to multiple organ failure, internal bleeding, and cardiac arrest. The Hon'ble Justice Dipak Misra has described this story as "from a different world where humanity has been treated with irreverence."

Judgement
The Court, in its judgement, convicted four of the six accused of the said charges. The convicts were sentenced to the death penalty. The proceedings were abated against the accused, Ram Singh, who committed suicide during the trial. The juvenile involved in the case was tried separately under the Juvenile Justice Board and was convicted and sent to a reformation home for three years.

The Supreme Court upheld the death sentence confirmed by the High Court as the aggravating factors in the case outweighed the mitigating factors. Moreover, all the appeals of the accused were dismissed by the court. The Court held this case in the category of "the rare of the rarest," a doctrine established in the case of Bacchan v. State of Punjab (1980), keeping in view the gravity and heinousness of the way in which the crime was committed.

Justice Verma Committee
After this incident, the government instituted the Committee headed by Justice J.S. Verma to look into the needed amendments in the criminal law to make laws providing for the protection of women more stringent and to add various aspects that were required considering the rise in the number of cases of crimes committed against women.

It was constituted on 23rd December 2012 and committed to submitting the Committee Report in 30 days, in view of the urgency and promptness that the Nirbhaya case demands. The basic purpose of this Committee was to recommend amendments in the criminal law to provide speedy trials in cases, especially crimes against women.

Key Suggestion Given By Justice Verma Committee:

1. It opined on life imprisonment for the offence of rape and rejected the death penalty as a punishment for rape in the view that it fails to have a deterrent effect on society.
2. It is recommended to expand the scope of criminal law to include sexual assault on men and homosexual, transgender or transsexual rape.
3. It also advocates for the removal of the Section from the law which legalizes "marital rape".
4. The offence of "sexual assault" should include all forms of non-consensual or non-penetrative sexual activity.
5. The Committee also recommends the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which was a Bill pending before the parliament at that time. It opined to make the offence of "acid attack" a separate offence, which was earlier punishable under the offence of "grievous hurt". It has also recommended some reformation in the medical examination of the rape victim as it recommends discontinuation of the two-finger test.
6. It also suggested the setting up of a Rape Crisis Cell to provide legal assistance to rape victims.
7. The police are duty bound to register rape complaints and to report any rape case that comes to their knowledge. If they fail to perform their duty, they must be held liable for punishment according to the provisions of the Act.
8. The Committee also recommends conducting literacy programmes for the children to impart sex education to them.
9. It also suggested some electoral reforms under the Representation of the People Act, 1951, and opined that candidates should be disqualified if one is facing criminal charges for sexual offences.

Key changes made after the Criminal Law (Amendment) Act, 2013 Indian Penal Code, 1860
The various provisions added or amended in the Indian Penal Code after the Criminal Amendment 2013 are:
Acid attack
These provisions were added to the Code as a consequence of the case of Laxmi v. Union of India (2015), in which a sixteen-year-old girl was attacked with acid. After this incident, the need for stringent provisions to counter the said offence was realised.

1. Under Section 100, a ground was added in the general exception of the "right to private defence", that is, an act of throwing acid or an attempt to throw acid. It means a person can now use the right to private defence in the case of an acid attack.
    
2. New provisions, namely, Section 326A and Section 326B, were inserted. Section 326A makes the offence of "acid attack" punishable by a minimum of 10 years imprisonment extending to life imprisonment and a fine, whereas 326B makes the attempt to throw acid an offence punishable by a minimum of 5 years extending to 7 years imprisonment and a fine.

Sexual offences
This Amendment inserted four other sexual offences in view of the rising statistics of sexual harassment cases in the country. These are:

1. Sexual Harassment (Section 354A)
   This Section includes acts like making physical contact, demanding sexual favours, and showing pornography to a woman by a man. For these offences, a man can be punished with rigorous imprisonment, which may extend to 3 years. It also covers the offence of making sexually-coloured remarks to a woman, for which there is imprisonment which may extend to one year.
    
2. Assault or criminal force with intent to disrobe women (Section 354B)
   This Section makes an act of assaulting or threatening a woman using criminal force to disrobe her or forcing her to be naked punishable by a minimum imprisonment of 3 years, which may extend to 7 years, and a fine.
    
3. Voyeurism (Section 354C)
   The word "voyeurism" literally means "an act of gaining pleasure from watching others naked or engaged in sexual activity." This Section makes any such acts committed by a man, punishable by a minimum of 1-year imprisonment, which may extend to 3 years, and a fine. It can also include the act of watching or taking photos of a woman when they are engaged in private activity. If a man is convicted of the same offence more than once, he shall be punishable with a minimum of 3 years of imprisonment, which may extend to 7 years.
    
4. Stalking (Section 354D)
   This Section includes the act of following or attempting to make contact with a woman who has already shown disinterest in a man or monitoring her use of the internet, email or other electronic communication means. This conduct by any man will be punishable by imprisonment which may extend to 3 years, and for repeated offenders, the punishment will be imprisonment which may extend to 5 years and a fine.

There are some exceptions to this offence; that is, these acts will not amount to "stalking" if the man proves his act for the following reasons:

1. If the man was entrusted with preventing or detecting the crime by the State,
2. If the man has done such acts under any law or while complying with any condition under any law,
3. If it was reasonable and justified.

Rape
This Criminal Law (Amendment) Act, 2013 widens the ambit of the offence of "rape" so as to provide harsher punishments for the more grievous acts. It also enlarged the provision to cover certain non-penetrative acts like oral sex and inserting any object or any other part of the body into a woman's body as an offence under the definition of "rape" under Section 375. Although under Section 376, the punishment for the offence of "rape" has not been enhanced, after the Criminal Law Amendment Act 2018, it was later increased to a minimum of 10 years imprisonment, which may extend to life imprisonment.

However, this Amendment of 2013 has added provisions and enhanced punishment for more grievous forms of rape like:

Section	Offence	Punishment
Section 376A	Causing death or resulting in a persistent vegetative state of the woman	Rigorous imprisonment for a minimum of 20 years which may extend to life imprisonment till the remainder of the person's life or death sentence.
Section 376B	Sexual intercourse by the husband during separation	Imprisonment for a minimum of 2 years which may extend to 7 years and a fine.
Section 376C	Sexual intercourse by a person in authority (fiduciary relationship, public servant, jail authorities, institutions for women and children, or hospital authorities)	Rigorous imprisonment for a minimum of 5 years which may extend to 10 years and a fine.
Section 376D	Gang rape	Rigorous imprisonment for a minimum of 20 years, which may extend to life imprisonment till the remainder of a person's life.
Section 376E	Repeat offenders	Life imprisonment till the remainder of a person's life or death sentence.

Points of difference between the recommendations of the Committee and the changes made under the Criminal Law (Amendment) Act, 2013

1. The Committee does not recommend the punishment of a "death sentence" for the culprits of sexual offences like rape, gang rape, etc., as in their view, it has failed to have a deterrent effect on society. Whereas the Act provided the punishment of "death sentence" in serious forms of rape like causing the death of the victim or causing the victim to fall into a vegetative state and for repeat offenders
2. The Committee recommended the criminalization of "marital rape", that is, sexual intercourse by the husband with the wife without her consent. But the Criminal Law Amendment Act of 2013 does not criminalize it.
3. The Criminal Law (Amendment) Act, 2013 rejects the proposal of the Committee which prescribes that candidates facing charges for sexual offences should be barred from contesting elections.
4. The Committee has also recommended that the senior officials of the police and army should be held liable for the sexual offences committed by their juniors, which was also rejected by the Criminal Law (Amendment) Act, 2013.
5. The Committee advised making provisions for sexual assaults committed against males, transgenders or homosexuals, but it was not included in the Amendment Act.

Need for Criminal Amendment Act, 2018
A report by the "Thomson Reuters Foundation" ranked India as the most dangerous country for women due to sexual violence, human trafficking, child labour, child marriage, and female foeticide. According to the National Record Crime Bureau (NRCB) in its annual report of year 2013 states that approx 24,923 rape cases were reported across India in 2012. And in 98% cases, the accused was found to be a relative of the victim.

The per capita rate of assault is most minimal, as a rule of assault, goes unreported. But rape cases like Kathua rape case and the Unnao rape case incidents triggered and widespread hatred in public. And feeling of condemnation results in media attention, and public protest demonstrated for the sake of justice. this increases the willingness to report the rape cases, and this led the government of India to bring some changes in the existing penal laws. Hence, there was an indispensable need for this Criminal Amendment Act.

Criminal Law Amendment Act, 2018
The Ministry of law and justice introduced the criminal law amendment bill 2018 in Lok Sabha on July 23, 2018, and the same was passed on 30 July and 6 August by Lok Sabha and Rajya Sabha respectively. This bill aims to provide grievances to the victim, who has been sexually assaulted and ensure the death penalty for those who, convicted for raping a girl below 16 or 12 years.

It replaced the ordinance promulgated by the President of India in April and also did relevant amendments in:

1. IPC 1860
2. Cr.PC 1973
3. Evidence act 1872
4. Protection of Child from Sexual Offences (POCSO) 2012

Salient Features Of Criminal Law Amendment Act, 2018
This Act brings relevant changes for the protection of a girl form the heinous crime of rape in our penal laws. They are as follows:

Anyone who commits the offence of rape shall be punished for the minimum period 10 years earlier it was for 7 years.
If any person rapes a girl, who is below 16 years of age, shall be punished for a minimum period of 20 years.
If a person rapes a girl, who is below the age of 12 years, shall be deemed to punished rigorous imprisonment for 20 years or imprisonment for life or maybe liable for the death penalty.

In case if the offence of rape, is committed with the girl age below 16 years, the anticipatory bail will not be granted to the accused.
Convicted persons bound to compensate the victim, and such compensation will be used for the victim's medical expenses and for rehabilitation. And the compensation will be just and reasonable.

If the offence of rape, is committed by the Police Officer, irrespective of the place shall be punished for rigorous imprisonment which is not less then 10 years.
In the matter of rape, the police are under compulsion to complete the Investigation within the period of 2 months after the FIR lodged.
The offence of rape, time to disposed the appeal starts after 6 months.

Act provides to punish accused convicted of gang rape of woman below 16 years of age shall be given rigorous imprisonment for life and liable for fine.
The Act also provides to punish accused convicted of the gang rape of women, who is below the age of 12 years shall be given rigorous imprisonment for life and with fine or with the death penalty.

Amendments In Indian Penal Code
Criminal amendment act 2018 inserts three new sections in IPC:

• 376AB
• 376DA
• 376DB

And amend three sections of IPC:

• 166A
• 228A
• 376

Reported Cases from 2013 To 2021:

Rape Cases Reported

• In 2013, 33707 rape cases were reported.
• In 2014, 36735 rape cases were reported.
• In 2015, 34651 rape cases were reported.
• In 2016, 38947 rape cases were reported.
• In 2017, 32559 rape cases were reported.
• In 2018, 33356 rape cases were reported.
• In 2019, 32032 rape cases were reported.
• In 2020, 28046 rape cases were reported.
• In 2021, 31677 rape cases were reported.

There was an increase in rape cases compared to the previous years .Even though many rapes are not reported in the country, it is an issue that continuously makes news headlines, some leading to public protests. Although reports of rape have increased in recent years, it was still associated with shame for the victim, rather tan perpetrator.

However, the number of cases reported is far less than the actual rape cases. According to data from the National Family Health Survey in the year 2021, 99% of rape cases still go unreported. And there are many reasons for it. Some victims are scared about what can happen to them in the long run while some just feel that it's better to keep mum since it might harm their image in society.

Though some victims tend to keep quiet, they do not realize they are harming their physical and mental health at the same time. And victims' silence also serves as an encouragement for perpetrators of the crime to continue their heinous acts.

To overcome this problem in India, the National Family Health Survey (NFHS) conducts surveys covering almost 700,000 women in India. They ask detailed questions about sexual and physical violence/abuse. The Government of India designated the International Institute for Population Sciences (IIPS) and decided that integrated NFHS would be conducted every three years. It is a collaborative project of the IIPS Mumbai, Maryland (USA), and Hawaii.

Rapes still continue to happen in our country and every day there is at least one woman or girl who is raped. And every woman or girl tries to stop that from happening in her own way. She might use verbal communication or physical force to prevent any untoward incident. Let us look at how linguistics plays a role in consent. Linguistics is the scientific study of human language but at the same time, it is also a system of systems. It includes verbal cues as well as non-verbal cues.

Even today, whatever discussions take place on sexual consent, they have all been unbalanced and unequal. We tend to forget that the victim is the one who has been traumatized both physically and mentally and is also blamed in a patriarchal society. However, the victims are the ones who should be protected, helped with counselling, and ensure that the perpetrator is punished. New laws are to be introduced to ensure such crimes are stopped. "NO!" This might just be a two-letter word but holds immense power in itself as in when someone says "no", it's a sign of total refusal. This is the most basic requirement that signals consent. The word "no" is totally unambiguous and very clear that the perpetrator should stop in his tracks immediately.

Sometimes these cues can be seen as a failure or not received by the perpetrator. The victim is blamed for how she was not able to stop the perpetrator. Many in society including family members jump to lecture the victim on how she should have been more direct and forceful.

In a study conducted by Susan Ehrlich, a linguist, she called this "the deficiency model of miscommunication". But some researchers do not agree with this. A few researchers feel that it is not miscommunication that leads to such cases. Consent has many perceptions and there are factors that are based outside of consent communication. These factors can include victims who might be patients of any cognitive disability, low IQ and other disabilities.

I

Increase In Rape Cases In India After 2012 Why?

Even though many rapes are not being reported in the country, it is an issue that continuously makes news headlines, some leading to public protests. According to reports published in Times of India (2008), rape is the fastest growing crime in India. In the past few years, the report from the ministry suggests that India stands at the third rank on the list of crimes against women.

We Indians used to believe and still believe in the concept of "Matri Devo Bhava" which means to worship women or mother, but the concept seems to disappear due to arise of rape cases. According to the National Crime Report Bureau (NCRB), in average one rape takes place in every 6 minutes. It implies, approximately 100 rapes in a single day.

One of the main reasons behind raising rape is due to the male-dominated society. Women have a low representation in such societies and many men think that women are only born to be used. Hence, women are limited to household activities, sexual activities and so on.

Other reasons of rising rape cases are due to the ignoring the relationship between poverty and violence, the stigma and blame attached to rape, lack of proper gender education, and also the difficult path to justice.

Conviction Rate
According to the National Crime Records Bureau (NCRB) data of 2019, 88 rapes take place in India everyday on an average. However, conviction rate is as low as 27.8% which means out of 100 accused, only 28 gets convicted. Expressing concern over the low conviction rate, even Supreme Court had observed that 90% of rape cases end in acquittal.

Conviction rates were high in 2017 as compared to 2018 and 2019. The conviction rate declined by 5% from 2017 to 2018 and increased nominally by 0.6% from 2018 to 2019. By evaluating the data, it is clear that, there is high crime rate then the conviction rate. This may be due to the lack of proper evidence and authorized person are not focusing of this matter. As on average, the conviction rate is under 30% means rest 70% of accused are walking freely outside and repeating same activities.

From the data that we have collected, it is found that 2016 has the highest reported cases from 2010-2020. States like Rajasthan, Madhya Pradesh, Uttar Pradesh and Maharashtra have remarkably high rape cases. That might be due to the awareness to fight against the violence.

Women of age ranging from 18-32 years old are most victim of rape. This may because they are active and are able to fight against anything. But it doesn't mean above 32 years are not active. Yes, they are active but most of them are married and being raped by their own family members. So, they are fear of losing their family prestige.

Similarly, the age below 18, they don't know what exactly is happening with them and mostly suffer from fear of sharing with their parents, teachers or others.

Delay In Justice
As of August 2019, POCSO cases alone stood at 1,60,989. Conviction rates remain low across the country due to the huge pendency of cases and delays in investigation and prosecution.

According to Meera Bhatia, Amicus Curiae in the Delhi High Court, issues such as inadequate streetlights and policing, besides deserted road stretches, are as important as the need for social mindset change. "Mindset of people has to change. There is a need to educate people so that women can be safe. We need more fast-track courts. The investigation needs to be fast-tracked. They have to get the infrastructure in order."

"While I welcome harsher punishment for assault and rape, what we need is speedy justice and better investigation and prosecution," she said. DELHI-POST DEC 2012 After the 2012 case, the Delhi High Court had ordered setting up of more forensic labs as it was informed that reports, particularly DNA analysis, take two-to-three years. In addition, reports showed that mortuaries maintained by the government were in bad shape, with viscera and other evidence getting damaged due to improper maintenance.

Courting Trouble
Despite multiple directions from the Supreme Court and High Courts, a scheme to set up 1,023 dedicated special fast-track courts to handle rape and POCSO cases is "under implementation", with most states having taken no steps. Information submitted to the Supreme Court by the Registry in November this year shows that Central funds have been released to only eight states: MP, Tripura, Rajasthan, Nagaland, Jharkhand, Uttarakhand, Maharashtra and Odisha. However, information regarding "actual establishment" of these courts is "not available", even though the report has been compiled by direct orders to senior officials of High Courts.

There are 14 districts in India with more than 1,000 pending POCSO cases, according to the data submitted to the SC, with 10 in Uttar Pradesh alone. One district each in Delhi, West Bengal, Karnataka and Kerala hold the same dubious distinction of having 1,000+ POCSO cases pending. A total of 414 districts across the country have 100 to 1,000 pending POCSO cases.

According to the National Judicial Data Grid, more than 48% of all criminal cases get delayed because accused or witnesses do not show up for hearings, leading to repeated adjournments. Trials then remain stalled at the stage of examination of evidence. Insufficient forensic evidence and botched-up investigations due to poor training have also been seen by courts as reasons for trial delays.

Often, courts are forced to acquit accused due to lack of adequate evidence or witnesses, since viscera, blood, DNA samples and other evidence get damaged/destroyed due to improper handling and storage. With a huge number of assault cases having "known persons" as perpetrators, many end up in acquittals due to social or family pressure on victims or witnesses, who turn hostile during trials and change their statements.

Nirbhaya Fund

According to information released by the Ministry of Women and Child Development (MWCD) in July 2019, less than 20% of funds earmarked for projects relating to women's safety, from the massive Rs 3,200-crore corpus of "Nirbhaya Fund", have been utilized since 2013. Several elaborate schemes like victim compensation, medical aid, one-stop crisis centers, emergency response, increasing police personnel, CCTV cameras and forensic labs have been introduced but very little work has actually gotten off the ground.

According to data, 18 out of the 36 states and UTs have given no information regarding use of funds sanctioned to set up an emergency response system. They include Delhi, Madhya Pradesh, UP, Maharashtra and West Bengal, all of whom see high numbers of sexual assault cases. Gujarat, which received Rs 1,187 crore in 2016-17, has also not shown any utilization of the money.

The time taken by the states to set up victim compensation schemes and distribute funds has been very slow. Madhya Pradesh, which received Rs 2,180 crore in 2016-17, has distributed only Rs 483 crore. The state had come under harsh criticism from the apex court in February 2018, after it reported distribution of only Rs 1 crore to 1,951 victims.

Apart from the monitoring by the apex court, various High Courts, including Delhi, Bombay and Bangalore, have had to step in and pass orders to ensure that victims who manage to reach the doors of the judiciary are given necessary compensation and funding.

The situation is similar when it comes to one-stop crisis centers in states. MWCD data shows very few states have set up the required infrastructure. Four, including Maharashtra and Bihar, have shown zero expenditure to set up crisis centers. Written By: Mohd Haseeb, 1st semester of Law Department, University of Jammu