AMENDMENT IN SECTION 375 AFTER NIRBHAYA RAPE CASE
Author: Srijeeta, III year of B.A.,LL.B. from Lloyd Law College
Cases of rape and sexual assault have always been the bigger blotch on the Indian Justice System. The 2012 Delhi gang rape created an uproar never seen before. The case involved a rape and fatal assault of a girl travelling with her friend that occurred on 16th December 2012 in Munirka, a neighbourhood in South Delhi. This incident generated widespread coverage and was widely criticized, both in India and abroad. All the accused were arrested and charged with sexual assault and murder.
Justice Verma Committee
After the Nirbhaya case in December 2012, a panel, the Justice Verma Committee was formed and was tasked with reforming and invigorating anti-rape law. Justice Verma was appointed as the chairperson of the three-member committee and was assisted by a team of young lawyers and law students.
The Committee adopted a multidisciplinary approach interpreting its mandate expansively[i]. The Report centres on sexual crimes at all levels and with the measures needed for prevention and also the punishment of all such offences that are an insult to human dignity. It addressed all aspects of sexual assault against women is one that goes to the core of social norms and values. The Report also deals with ensuring speedier trials and proper punishment. The comprehensive report was appreciated both nationally and internationally. This led to the making of the Criminal Law (Amendment) Act, 2013.
Not all the Committee’s recommendations were accepted, such as criminalizing marital rape but a significant number of changes were also made:
New Sexual Assault Offences
Earlier, offences of sexual assault were looked after with section 354 of the IPC that talked about “outraging the modesty of a woman.”Now, under sections 354A-D, stalking, voyeurism, unwanted sexual advances and touches are all specifically discussed. This helps ensure there is no loophole left to come in the way of justice.
2. Provisions on Acid Attacks
Recognizing India’s massive problem with acid attacks, the 2013 Amendment Act also introduced provisions criminalizing acid attacks, and for protecting the attacked victims.
3. Reforms to Law on Rape: Amendment to Section 375 of IPC. The reform to the rape laws were the headline of the 2013 Amendment Act. One of the horrific aspects of the Nirbhaya case had been how the act took place and which caused the victim’s death. This raised the question if the, then existing definition of rape was sufficient or not.
Rape is defined under Section 375 of the Indian Penal Code. The Amendment Act 2013 changed the section to be a bit more detailed about what constituted rape. As per section 375 after the amendment,
“A man is said to commit “rape” if he-—
penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or
inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or
manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus or any ~ of the body of such woman or makes her do so with him or any other person; or
applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—For this section, “vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.[ii]”
The Amendment Act, 2013, was passed in Parliament to amend Section 375, removing the ambiguity in the earlier law and providing for stricter punishment in the rarest cases of sexual violence, the legislation was expanded. Under the old definition of rape, only forced penetration was considered as rape and not assault or forced oral sex. The 2013 Amendment Act expanded the definition of rape and included oral sex as well as assault by insertion of an object or any other body part into a woman’s vagina, urethra or anus. The age of the victim was also changed from 16 years to 18 years for it to be considered rape. The seventh description of rape was added stating penetration or sexual act when one is unable to communicate the consent also amounts to rape. Section 375, after amendment, also defined consent as, an unequivocal voluntary agreement, which shows the willingness of the woman by words, gestures or any form of communication to participate in the specific sexual act.
Exceptions to the section
Marital rape is an exception to giving consent as it is not a crime under the Indian Penal Code, as long as the woman is above 15 years of age; also a medical procedure or intervention does not constitute rape.
Stricter punishments were laid down as per the amendment. Now the punishments to the rapists were of minimum seven-year or above, which may or may not include a fine. The courts now did not have the discretion to give a sentence of lesser than the minimum of seven years. Punishments for repeat offenders and other aggravated situations would be rigorous imprisonment for a term not less than 10 years that may extend to life imprisonment, including the possibility of the death sentence.
Also, the Committee repealed several rules of evidence that were regressive, that encouraged victim-shaming, and had nothing to do with the crime, like the two-finger test, or questioning the victim’s previous sexual history. Fast-track courts were also set up for rape cases, which were to conduct trials on a day-to-day basis and not stretch them over several months. Trials also need to be completed within two months of the chargesheet[iii].
After 8 years of people fighting, anger, protests and amendments, the Supreme Court looked above the convicts’ attempt to delay justice and gave the order of execution of the convicts; on 20th March 2020, all four convicts were hanged till death at Tihar Jail and justice was served. Changes take time, with time, laws are made to go through adaptation as required. Though we are making changes and refining our system and minds, the question of utmost importance remains of, how much more time?
[i]Yamini, Criminal Law (Amendment) Act, 2013: Sexual Offences, Lawctopus, https://www.lawctopus.com/academike/criminal-law-amendment/
[ii]Soumya Singh Chauhan, Section 375: Analysis of Provisions Relating to Rape, Lawctopus, https://www.lawctopus.com/academike/section-375-analysis-of-provisions-relating-to-rape/
[iii]VakashaSachdev, How Did the Law Change After Nirbhaya’s Case? the quiet, https://www.thequint.com/videos/nirbhaya-case-changes-to-criminal-law