The Criminal Law Amendment Ordinance 2018

This article is written by Janvi Johar, 2nd year student pursuing B.A.LLB (H) from Amity University, Noida.

The Criminal Law Amendment Ordinance 2018

The [1]Kathua Rape Case and [2]The Unnao Rape Case had re-ignited the issue of deterring crime against women in India. Even after the stringent laws that were brought in by The Criminal Law (Amendment) Act, 2013 post Nirbhaya case, the society was again taken aback by such incidents.

These horrific incidents not only bring back to the knowledge of the society that the rape culture has not only failed to wane but also looms large in our society where such crimes are committed with impunity. As an immediate consequence, to the extensive reporting and public roar, the parliament was forced to take ‘corrective measures’ and thus it approved The Criminal Law Amendment Ordinance 2018 which was signed by the President on the 21st of April, 2018.

Key Provisions

# CHANGES BROUGHT IN THE CODE OF CRIMINAL PROCEDURE, 1973

  • Under section 438 of the Code of Criminal Procedure,1973- a person accused of rape of a woman below the age of 16 years shall not be granted anticipatory bail by either a Court of Session or any High Court.
  • To ensure speedy and efficient trial and investigation, it was also mandated that investigation has to be completed within 2 months and the appeal has to disposed within 6 months of its incitation.
  • Under section 439 of the Code of Criminal Procedure, 1973- a proviso stating that the High Court or the Session Court has to give notice to the public prosecutor within 15 days of which it receives the bail application of an accused of raping a girl under 16 years of age has been inserted.
  • Another sub section makes the presence of the informant or any person authorized mandatory during the hearing of bail application.

#CHANGES BROUGHT UNDER THE INDIAN PENAL CODE,1860

#CHANGES BROUGHT UNDER PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,2012

Section 42 of the Protection of Children from Sexual Offences Act,2012 has been amended so as to give effect to the harsher punishment to the person guilty of committing the crime of rape prescribed under the Indian Penal code,1860

Similarly, Section 53A and Section 146 of the Indian Evidence Act, 1872 have been amended on the same grounds.

Dissenting Views on The Amendment

Barriers to an effective and speedy trial and investigation – Though there have been amendments in the Code of Criminal Procedure,1973 prescribing a time-bound investigation and trial. However, the amendments fail to check and provide a remedy for non-compliance to these procedures.

The definition of the term rape is not gender-neutral– The concern of making the definition of ‘rape’ gender-neutral has risen by both The Law Commission of India (2000) and the Justice Verma Committee Report (2013). However, this ordinance fails to address this issue. As per the Protection of Children from Sexual Offences Act, 1973 it uses the term ‘person’ for the victim and perpetrator. However, the Indian Penal Code, 1860 uses the word ‘women’ for victims and ‘man’ for perpetrators.

The difference in punishments for the crime of rape of minor boys and minor girls – Through this ordinance the Protection of Children from Sexual Offences Act, 1973 was amended to give effect to higher punishment in case of rape of minor girls prescribed under the Indian Penal Code, 1860. However, there have been no changes in the punishment of the rape of a minor boy.

The debate on death penalty– The Parliament passed the Criminal Law (Amendment) Act, 2013 to amend the Indian Penal Code,1860 to allow death penalty only in rape cases where the accompanying brutality leads to death or leaves the victim in a persistent vegetative state, and in cases of repeat offenders.

Thus, the death penalty was considered the highest form of punishment which should be rewarded to all cases of rape. This found support from a lot of jurists and as retired [3]Justice P.D. Kode of the Bombay High Court said that such offence is a “dastardly act” and is inflicted on minors who are actually incapable of protecting themselves and therefore, the punishment of death penalty is not harsh.

However, some activists have opposed this view on the ground that even after stringent laws being enacted in the 2013 Criminal Law (Amendment) Act, a crime against women has not deterred. Another thought against death penalty points that that such severe punishments will lead to ‘under-reporting of cases’ as National Crime Records Bureau (NCRB) data shows that rapes in India are mostly committed by a person known to the victims or relatives of the victims. [4]In 2016 out of 38,947 reported cases, 36,859 cases were such where the victim knew the offender (94.6%).

Furthermore, it was felt that the chances are high that the offender will make sure that the victim does not survive. This point was also raised by the Delhi High Court when a Bench comprising of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar remarked [5]Have you thought of the consequence to the victim? How many offenders would allow their victims to survive now that rape and murder have the same punishment?”.

National Database on Sexual Offenders

On 20th September 2018, the Ministry of Home Affairs had launched its online facility of National Database on Sexual Offenders, becoming the 9th nation in the world to do so.

This database would include the details of all citizens convicted for any sexual offences starting from 2005. The details of the offender will include their name, fingerprints, permanent address, DNA samples, photograph, and other personal information. However, this information is only accessible to law enforcement agencies with the aim to deter crime against women in India. This data would be stored and maintained by the National Crime Records Bureau.

The offenders have been classified under 3 categories –

  • LOW DANGER- data is stored for 15 years
  • MODERATE DANGER- data is stored for 25 years
  • HIGH DANGER- data is stored permanently

[1] The Kathua rape case refers to the abduction, rape, and murder of an 8-year-old girl, in Rasana village near Kathua (Jammu & Kashmir) in Jan. 2018. The victim belonged to the Bakarwal community. She disappeared for a week before her dead body was discovered by the villagers. Owing political patronage to the accused in the case and possibility of political influence on the trial in Kathua (J & K), the trial of the case was transferred by the SC to Pathankot District & Sessions court (Punjab). State of Jammu Kashmir v. Deepak Khajuria (Case registration no. 34/2018).

[2] The Unnao rape case refers to the alleged rape of a 17-year-old girl (minor) on June 4, 2017. The main accused is Kuldeep Singh Sengar, an MLA of Uttar Pradesh, and a member of the ruling BJP. The case was transferred to CBI owing to public pressure. The Allahabad High Court vide its judgment, C.B.I v. Kuldip Singh Sengar, (Cri. Case No. 1228/2018).

[3] The State of Bihar vs Onkar Nath Singh

[4] In 94.6 per cent cases of rape, accused known to victim: NCRB

[5] ‘Was any study done before bringing out rape Ordinance’

This article is edited by Rupreet Kaur Dhariwal.