Amendments to Rape Laws after Nirbhaya Case

This article has been written by Barkha, from JEMTEC School of Law.

Nirbhaya case, a gangrape case occurred in Munirka, near south Delhi. This incident took place on 16^th, December, 2012. A 23 years old, physiotherapy intern was brutally gang raped in a private bus when she was going home after watching a movie, with her friend. There were 6 people in the bus including the bus driver, out of whom everyone raped her and the friend of the girl was also beaten. They assaulted her and caused some serious injuries in her private parts with an iron rod. After being brutally raped she was thrown on road naked, bleeding, her intestine spilling out the body. After 11 days of treatment, when she was being shifted to Singapore for further treatment, she died. Among the 6 rapist there was a juvenile as well. This case was one of the most heinous crimes occurred ever. This incident got so much publicity; this news spread from national to international platforms. There were several candle marches conducted to demand justice. Many protests were alsoheld.

Out of all those 6 rapists, one was minor (few months short to be 18) who was prosecuted under Juvenile Justice Act, 2000, and he was given punishment of maximum 3 years, in a reform facility. Other rapist committed suicide under police custody on 11^th, March 2013 in Tihar Jail. On 10^th, September 2013, the four remaining accused were proved guilty of rape and Murder, by speedy trial court. Later, the High Court heard the case, and upheld the decision of the trial court, death sentence. Further, petition was filed in the Supreme Court, it took one and a half year for the apex Court to constitute a bench for hearing. On 25^th, August, 2013, it was uploaded on the website of the Supreme Court, that there is a requirement of at least 3 judges in a bench. In 2017, the Supreme Court upheld the decision of capital punishment. According to law, any convict can file a plea for review of the verdict within 30 days. But there is an exception to the same, if there is any convincing reason behind the same it can be delayed. All the accused filed review after six months to after one and a half year. In their petition, they gave absurd and bizarre reasons, talked about ‘Vedas’ and ‘Puranas’ and reduction of life expectancy of human beings. It was stated that “Earlier the life expectancy of humans was 100 years but now the life expectancy of humans has already reduced to 50-70 years, what is the point behind death sentence”. It was also stated that “as Delhi is like a gas chamber, people are automatically going to die.” All these contentions were made in the petition, all the petitions were rejected by the Supreme Court. During their imprisonment, they also broke prison rules 23 times. They laterfiled their mercy plea before the president of India which was also rejected. After all these petitions and delay games, they were finally hanged to death on 20^th, March, 2020.[1]

Focusing on the time period, which took to provide justice to a girl and her family. After committing such a heinous crime, those criminals survived for 8 years. The family of the victim had to fight for 8 years to get justice. After looking at this scenario, a question arises how efficient are the criminal laws of this country, where such criminals managed to delay their hanging for several years. It is clear that, there is requirement to frame stronger laws. After commission of this Nirbhaya case, people protested to provide justice to Nirbhaya and make stronger laws. The questions which arises are, what are the changes which have been made to make judicial system more efficient, how government has worked to make sure that such cases would not occur? What are the laws which has been changed and is there any reduction in the commission of such crimes?

After the Nirbhaya case, there were many changes made in the Indian legal system. An attempt was made to make laws stricter to prevent such crimes. Following are the changes which have been made to make system better:

• A scheme related to fast track courts was introduced for fast disposal of rape cases. It is planned to establish around 1,023 fast track courts.[2]Due to abundance of cases, there are many pending hearings in the court of law, which is leading to further delays in the announcement of verdicts. To make judicial system more efficient there was requirement to establish fast track courts, to provide justice to the victims in short time period.
• The definition of section 375 of The Indian Penal Code, 1860 i.e. rape was broadened. A broader definition of consent was introduced in the law. The definition of rape was also defined again, now it not only include vaginal penetration but forcible penetration by any man of penis, in any part of the body of the woman, including mouth, urethra, anus as well. Any kind of non-penetrative act would now be considered as sexual assault. Age consent was also increased from 16 to 18. The scope of law was also increased as rape of any women under 16 years of age is considered to be aggravated and therefore, provide higher punishment. Separate provision for repeated offenders was also introduced.[3]
• Certain changes in the procedure of the investigation were also brought, if any woman reported about rape case, such reported shall be noted by the female police officer, and in certain cases, at whatever place the victim is comfortable. Such information shall be video graphed and presented before the magistrate. It also abolished two- finger test, which somewhere lead to mental exploitation of the woman raped.[4]
• One of the biggest changes which were made was, punishment of marital rape. In this orthodox society, it is believed that if a man is married to a woman, he got certificate to have sex with her, whenever he wants. But any penetration which is done without the consent of the woman is rape. Hence, punishment for the same has been defined under section 376A of The Indian Penal Code, 1860, which extends to two years of imprisonment. And even special provision has been defined for rape by men who were in fiduciary relationship (relationship of trust, any relative) with the victim.[5]
• In any law, there is some kind of presumption, in The Indian Evidence Act, 1872, section 114A, it is stated that if any woman shows in her evidence that she had not consented, it would be presumed that her consent was not given.[6]

These were the law amendments made after the Nirbhaya case, an attempt was made to improve judicial system.

But as we look at the scenario after Nirbhaya case, 16^th, December, 2012, it has nowhere changed. The rate of rape cases is increasing at a high pace. Changes in the laws has nowhere contributed in the prevention of rape cases. Heinous rape cases like Dr Priyanka Reddy, a woman raped twice in a day and burnt alive are still occurring. Women are not safe even in their houses, they are raped by their relatives, husbands, fathers, brothers and uncles. Girls of every age group from 6 months to 80 years are raped. Due to the perception of the society many rape cases are not even reported, because of women’s reputation. Women are raped and they keep quite and forget everything, without taking any action against the rapist.Current legal system is failing in preventing crimes. In situation like this where violence against women isso high, we require very strong laws and its proper implementation. Along with making laws stronger, proper sex education should be provided to young generation. Self defense lessons should be compulsory in every school or organization in the country. It’s a high time when we require strong legal and judicial system and safe place for women. Strict action by the government and law makers is required.

[1]Mukesh &Anr.V. State for N.C.T. Of Delhi &Ors, (2017) 6 S.C.C. 1.

[2]https://timesofindia.indiatimes.com/india/over-1000-fast-track-courts-to-be-set-up-for-rape-cases/articleshow/72402934.cms visited on May 20, 2020 at 13:15.

[3]https://inbreakthrough.org/criminal-amendment-act-2013-changes-rape-law-post-16-12-12/Visited on May, 20, 2020at 19:31.

[4]https://www.klelawcollege.org/blog/legal-reforms-in-india-post-nirbhaya-rape/visited on May, 20, 2020 at 19:51.

[5]https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html visited on May, 20, 2020at 20:09

[6]https://blog.ipleaders.in/judiciary-interprets-consent-rape-cases/visited on May, 20, 2020 at 20:28.