The Indian Penal Code, 1860 governs the substantive part and the Code of

Criminal Procedure, 1973 along with the Indian Evidence Act, 1872 governs
the procedural part of the criminal law of the country. These Acts have been
amended several times to keep pace with the changing needs of society. One
major amendment in these laws was the Criminal Law (Amendment) Act,
2013. This is also commonly known as the ‘Nirbhaya Act’ and it amended the
provisions relating to sexual offences. These amendments were the
consequence of the brutal rape and consequent death of a 23-year old
woman in a bus in Delhi and were based on the recommendations of Justice
J.S. Verma Committee Report.

Criminal Law Amendment Act, 2018

The Criminal Law Amendment Act, 2018 is also a consequence of such

barbaric incidents which shook the conscience of the entire nation. The
demand for making anti-rape laws more stringent had started developing
due to various child rape incidents. The infamous Kathua rape case and the
Unnao rape case triggered this demand and this gave birth to the
amendment of 2018.

Brief facts of Kathua rape case and Unnao rape

case
An 8-year-old girl was raped in Kathua, a district of Jammu and Kashmir. It
has been alleged that she was kept in a Shrine for several days and raped
continuously and later murdered.

The Unnao rape case was another shock to the nation where a teenage girl
accused an MLA of raping her in the year 2017. She tried to set herself on
fire in front of the MLA’s residence in Unnao, northern Uttar Pradesh.

Timeline of events which led to the amendment

Several state assemblies such as Madhya Pradesh, Haryana, Rajasthan, and
Arunachal Pradesh passed stringent anti-rape laws for committing rape of
minor girls after the Kathua rape and the Unnao rape incidents.

 Following this, the President had promulgated the Criminal Law

Amendment Ordinance on 21 April 2018.
 The Criminal Law (Amendment) Bill was then tabled in the
Parliament which replaced the Ordinance.
 The Bill was passed by the Parliament on 6th August 2018.
 The President gave assent to the Bill and thus, the Criminal Law
(Amendment) Act, 2018 came into force.

What lead to enactment of Criminal Law

Amendment Act, 2018
This followed the Criminal Law (Amendment) Ordinance, 2018 and brought
amendments in four major Acts.

 The Indian Penal Code, 1860

 The Code of Criminal Procedure, 1973
 The Protection of Children from Sexual Offences Act, 2012
 The Evidence Act, 1872

The Indian Penal Code, 1860

Before the amendment, Section 376 dealt with punishment for the rape of
women in two circumstances.

 Section 376(1) dealt with punishment for rape of a woman in all the
circumstances except those mentioned in Section 376(2). The
punishment in such cases was rigorous imprisonment of a minimum
seven years which may be extended to imprisonment for life. The
punishment under this section has now been amended.
 Section 376(2) dealt with punishment for the rape of a woman done
by police officers, public servants, member of the armed forces, etc.
 This punishment has not been amended and is a minimum ten years
rigorous imprisonment which may be extended to imprisonment for
life.

After the amendment, Section 376 deals with three categories of punishment
for rape, apart from rape of women by police officers, public servants,
member of the armed forces, etc.

 Punishment for the rape of a woman to be a minimum ten years

rigorous imprisonment which may extend to imprisonment for life.
{Section 376(1)}. Thus, the quantum of punishment has increased
from a minimum of seven years to a minimum of ten years.
 Punishment for rape on a woman under sixteen years of age has
been added by the amendment. Punishment in such cases has to be
rigorous imprisonment of a minimum twenty years which may
extend to life imprisonment. {Section 376 (3}
 Punishment for rape on a woman under twelve years of age has also
been added by the amendment. The punishment in such cases is
defined as a minimum twenty years rigorous imprisonment which
may extend to imprisonment for life. The offender in such cases can
also be punished with death penalty. {Section 376AB}

Thus, for the first time, death penalty has been introduced for the offence of
rape considering the gravity of the offence.

 Moreover, Section 376DA and 376DB have been added by the

amendment which deals with punishment for gang rape on a woman
under sixteen years and twelve years respectively. The punishment
in such cases has to be invariably imprisonment of life. However, for
gang rape on a woman under twelve years of age death penalty can
also be awarded.
 Clause (i) of Section 376(2) has been omitted.

The Code of Criminal Procedure, 1973

There have been simultaneous amendments in the Cr.P.C to meet the ends
of justice in such cases of rape.

 If a person is accused of rape on a woman of under sixteen years of

age, he shall not be granted anticipatory bail under Section 438 by a
High Court or a Court of Session.
 The amendment has provided for speedy trial and investigation.
o The investigation has to be mandatorily completed within
two months.
o The appeal in rape cases has to be disposed within six
months.
 Moreover, the amendment has also made two changes in Section
439 of the Code.
o A proviso has been inserted which states 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.
o A sub-section has been inserted which makes the presence
of informant or a person authorized by him mandatory
during the hearing of bail application of the accused in such
cases.

The Protection of Children from Sexual Offences Act, 2012

 Section 42 of the Act which deals with alternative punishment has

been amended to include Sections 376AB, 376DA, and 376DB.

The Evidence Act, 1872

 Section 53A and Section 146 have been amended to make the
provision of the Act to be in consonance with the amendments in
other Acts.

Various views on the Amendment

The debate on Death Penalty

The amendment in Criminal Law with respect to the introduction of the death
penalty triggered the debate whether such punishment addresses the issue
at hand.

1. The death penalty will act as a deterrent

The supporters of the punishment of death for committing rape on a woman

under twelve years of age argue that the punishment is apt for such a
heinous crime and it will act as a deterrent. One of such supporters is retired
Justice P.D. Kode of the Bombay High Court who 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.[1] Another opinion is that a person committing rape on a girl whose
body has not even matured is an evil and devious act and thus, to be
punished by death penalty is the best answer.

However, there are many activists and lawyers who argued against such
punishment on various grounds. The argument that the death penalty will act
as a deterrent is dismissed as a futile exercise as stringent punishments in a
very few cases have led to a decrease in the rate of commission of crimes.
Such arguments have been mostly based on two points.

 The 2013 amendment of Criminal Law was targeted towards the

same objective i.e. to make the laws stringent so as to create
deterrent in the minds of the perpetrators. However, records show
that the stringent laws have not helped much in bringing down the
rate of crime. Moreover, there was a strong demand after the
Nirbhaya incident too that death penalty should be included as a
punishment for rape but Justice Verma Committee recommended
against it stating that “there is a strong submission that the seeking
of the death penalty would be a regressive step in the field of
sentencing and reformation.”[2] A similar view was also reiterated
by the Law Commission of India in its 262nd report.
  Another ground is that the death penalty is also a punishment in
case of an offence of murder. However, this has not stopped the
crime and in fact, the crime rate is on increase. The offender is not
in the state of mind to analyze the punishment before committing
the crime and thus, the death penalty is not an effective deterrent.

2. The death penalty will lead to under-reporting of cases

This is one of the arguments given by people opposing the death penalty.
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. Out of 38,947 reported rape cases in 2016, 36,859 cases were such
in which the victims knew the offenders.[3] As a consequence, there is
massive underreporting of rape cases and with death penalty as a
punishment, this will only intensify. This is because “we are effectively asking
the child’s family to risk sending a family member or a known person to the
gallows.”[4]

3. Introducing the death penalty has increased the chances

of the offender killing the victim

This is another view against the punishment of the death penalty. The
punishment for murder under Section 302, IPC is death penalty or
imprisonment for life. Thus, effectively the punishment for committing rape
on a minor girl and committing murder has become same. Therefore, now
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 “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?”[5] Thus, this might result to be of fatal
consequence for the victims.

The shift in focus

One of the major arguments against the amendment is that this is a step to
pacify the public and a step away from addressing the real problem. The real
and persisting problem lies in the criminal justice system of the country.

1. The focus should be on taking steps to increase the conviction rate.

In 2016, a total of 38,947 cases of rape were reported in the
country. Of these, the Courts completed trial in 18,552 rape cases.
However, with a conviction rate of 25.5%, the accused in 13,813
cases were acquitted. Similar statistics can be seen in cases of child
rape. Out of 6,626 cases of which trial was completed, 4,757
resulted in the acquittal which means a conviction rate of 28.2%.[6]
Thus, the need of the hour is to focus on addressing these issues.
2. Another issue which requires greater attention is providing
protection to the victim as well as the witness. Because of lack of
any such system, more often than not the victim, witness or the
family members face threats and intimidation. There is a need to
create a conducive environment for the victim to report the crime
and provide protection to the victim as well as the witness. Thus,
there are more intricate issues to deal with and until these are
resolved it is difficult to control the rate of such crimes.

The Amendment makes the difference of Section 376(1) and

376(2) ineffective

Section 376 (1), IPC deals with the punishment for the offence of rape in
general, i.e. for all the cases except for those provided in Section 376(2).
The latter section deals with the punishment for rape if the offence is
committed by a specific person or the offence is committed in specific
circumstances. There are several categories mentioned in the section such as
a police officer, a public servant, a member of the armed forces, a person in
a position of trust or authority, etc. Before the amendment, the minimum
punishment under Section 376 (1) was seven years imprisonment and in
Section 376(2) was ten years imprisonment. This difference was created as
the crime becomes more heinous if committed by persons who are held high
in the eyes of the public due to their position or if committed in specific
circumstances. However, after the amendment, the minimum punishment in
both the sub-sections is ten years of imprisonment and thus, there remains
no difference.

The difference in the punishment for rape of minor boys and

minor girls

The Protection of Children from Sexual Offences Act, 2012 was enacted
because the sexual offences were dealt under IPC for all the victims and a
need was felt that the children who are victims of sexual violence need
special protection and care and hence, a separate legislation. This is a gender
neutral legislation as it defines a ‘child’ as the one who is under the age of 18
years. The maximum punishment under this Act is imprisonment for life and
the maximum punishment for a sexual offence under IPC for minor girls has
become death penalty. Thus, a difference has been created by the
amendment of 2018 as punishment for rape on minor girls has become more
stringent as compared to rape on minor boys.

The problem in case of no anticipatory bail

The amendment in Cr.P.C provides that no anticipatory bail shall be granted

in cases of rape on a woman under sixteen years of age. Thus, now the
accused has no provision to get an anticipatory bail even if there are chances
of being booked under a false case.

What other states should learn from Madhya Pradesh on

successfully implementing the Criminal Amendment Act of
2018

The Criminal Law (Amendment) Act, 2018 through the amendment of Code
of Criminal Procedure, 1973 provides for speedy trial and investigation in
rape cases. Having considered all the views in favour and against the
amendment, it is also important to throw some light on the practical results
of the amendment.
  The state of Madhya Pradesh has shown a successful
implementation of the provisions of the amendment. The state has
completed the investigation of rape cases within the time frame i.e.
within 60 days in 72% of the cases.
 In a rape case in Bhopal, the arrest was done within 12 hours and
the investigation was completed in 72 hours which also included
recording the statement of 25 witnesses and the accused was
awarded death penalty.
 In another case, the trial for rape of a 4-year-old was completed in
a day after four days probe.
 These statistics clearly show that the provision laid down in the
amendment is an achievable task and can lead to improvement of
delivery of justice all over the country.
 Even the Centre has applauded the government of Madhya Pradesh
for the successful implementation of the amendment Act and has
asked other states to follow the same.

Conclusion
The Criminal Law (Amendment) Act, 2018 has brought significant changes in
the criminal law of the country. These amendments have the objective of
making anti-rape laws more severe so as to decrease the rate of crime. The
time frame of investigation and appeal, if implemented properly, can bring
down the crime rate. However, these amendments need to be supplemented
with other changes in the criminal justice system for overall effective results.

Analysis of Criminal Law (Amendment)

Ordinance,2018
The central government has recently came with Criminal Law(Amendment) Ordinance,2018 a
new framework relating to rape of minor.The arrival of this ordinance has made numerous
changes to the various acts like POCSO,2012, IPC,1860,Crpc,1973 and Indian Evidence
act,1872 etc.The ordinance has increased the punishment for rape of the minor and has also
added three more new offences relating to sexual violence against minor.
The amendment of all the above mentioned acts are as follows:

 IPC,1860:
Earlier the punishment for rape was 7 years,as per new ordinance it has been made 10
years.However the maximum punishment of life imprisonment remains the same.The new
 clause,clause 3 has been added in section 376 which provided for the minimum punishment of
20 years for rape of minor below the age of 16 years.The ordinance has also inserted new
section 376 AB which provided the minimum punishment of 20 years and in some case capital
punishment for rape of minor below the age of 12 years.The important point under the new
ordinance is that it prescribes the death penalty to offender committing the rape of minor below
the age of 12 years.Also in the provision 376(2)(a) relating to rape by police officer which says
‘limit of police station’ has been omitted by ordinance.The objective behind this omission was to
extend the liability of police officer no matter where he commits the rape to be punished with
minimum imprisonment of 10 years.
 POCSO,2012:
Earlier in this act,punishment for the rape of minor below 12 years age or for gang rape of minor
was 10 years or life imprisonment with fine and for the rape of minor below the 18 years age was
7 years or life imprisonment with fine.The ordinance has amended the POCSO and stated that
the punishment which will be higher between both the acts IPC and POCSO will be applied.
 CrPC,1973:
Earlier in this act the time period for investigation of crime related to rape of minor was 3
months.The ordinance has reduced the time period from 3 month to 2 month with an objective to
make investigation timely and effective.The reduction of time period will also be applicable to all
the sexual offences relating to minor below the age of 12 and 16 years. In an addition to the time
bound investigation, the ordinance has also mandated the time limit of 6 month for appeal
against punishment relating to rape. Also the ordinance has scraped down the applicability of the
anticipatory bail provision in offences relating to the sexual crime against minor below the age of
12 years and 16 years.The ordinance has also extended the applicability of the compensation
and free medical aid provision of CrPC to the rape and gang rape of minor below the age of 12
years and 16 years.It has also extended the applicability of exception of no prior sanction in
offences like rape,when public servant is involved to the rape and gang rape of minor below the
age of 12 years and 16 years.
 Indian Evidence Act,1872:
In this act there is provision which says that in sexual crime the factors like whether the sexaul
act was consensual or not,whether the past conduct of the victim was moral or immoral are to be
disregarded.The same provision of Indian Evidence Act,1872 has been extended to the sexual
offences of rape and gang rape of minor below the age of 12 years and 16 years.

The recent amendments in the POCSO act shows the commitment of the central government to
give secure environment to children, girls and women in India.However, the government has not
carried out surveys about the deterrent effect of death penalty in such cases ,it has also not
provided the basis for classification of the age of the victim etc but considering the public
sentiments of provision of death penalty for raping minor below the age of 12 years is welcome
move by the government considering the increasing rate of sexual violences against the minors
in India.This changes in the long term will lead to decrease in the cases of sexual violence
against minor.