Salient Features of the Criminal Law (Amendment) Ordinance, 2018 and Glaring Drawbacks

The Kathua rape incident resulted in the much awaited enhancement in severity of punishment for rape of minor girls by way of the Criminal Law (Amendment) Ordinance, 2018, promulgated on April 21, 2018. The Ordinance amends the following legislations in the manner as stated below:

AMENDMENTS TO INDIAN PENAL CODE (IPC), 1860:

Enhanced punishment for rape: Section 376 of the IPC, 1860, which deals with the offence of rape was earlier punishable with a rigorous imprisonment of at least seven years up to life imprisonment, along with fine. The Ordinance, 2018 has increased it to rigorous imprisonment of minimum ten years, extending upto life imprisonment, along with fine.

A new clause (3) has been added prescribingthe minimum punishment of twenty years to a person committing rape on a woman under 16 years of age, extending up to life imprisonment, along with fine.

New offences: The Ordinance introduces three new offences relating to rape of minors, and increases the penalty for one:

Section 376 AB: Rape of a girl below the age of 12 years attracts rigorous imprisonment of atleast 20 years extendable to life imprisonment, along with fine to meet medical expenses and rehabilitation cost of the victim, or, with death.

Section 376 DB: Gang rape of a girl below the age of 12 yearshas been made punishable with life imprisonment, along with fine, to meet medical expenses and rehabilitation cost of the victim, or, with death.

Rape of a girl below the age of 16 yearsattracts rigorous imprisonment of atleast 20 years extendable to life imprisonment, along with fine to meet medical expenses and rehabilitation cost of the victim, or, with death. Previously, rape of a girl below the age of 16 years was punishable with imprisonment of ten years extendable to life imprisonment, along with fine.

Section 376 DA: Gang rape of a girl below the age of 16 yearshas been made punishable with life imprisonment, along with fine, to meet medical expenses and rehabilitation cost of victim.

AMENDMENTS TO PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT (POCSO), 2012:

ThePOCSO Act, 2012, makes the rape of minors punishable with atleast seven years or life imprisonment, along with a fine. For rape of minors below the age of 12 years or for gang rape of minors, the punishment is rigorous imprisonment of at least ten years or life imprisonment, along with fine. The Ordinance amends the POCSO Act, 2012 to state that for all such offences, the punishment which is higher between the POCSO Act, 2012 and IPC, 1860, shall apply.

AMENDMENTS TO CODE OF CRIMINAL PROCEDURE (CR.P.C.), 1973: 

Time-bound investigation: The Cr.P.C., 1973 under section 173 states that an investigation into rape of a child must be completed within three months. The Ordinance amends the section and reduces the time for completion of investigation from three months to two months extendable to all offences of rape (including rape, gang rape, and rape of minors under the age of 12 years and 16 years).

Appeal: As per the Ordinance, any appeal under section 374 or section 377 of the Cr.P.C., 1973 against a sentence related to rape cases must be disposed of within six months.

Anticipatory Bail: The Cr.P.C., 1973 lists conditions for grant of anticipatory bail. The Ordinance makes the provision of anticipatory bail not applicable to rape and gang rape of minor girls below 12 years and 16 years of age.

AMENDMENTS TO INDIAN EVIDENCE ACT, 1872:

Under the Evidence Act, in determining whether the act was consensual or not and the two-finger test that determines the past sexual experience or character of the victim is disregarded. This provision has been extended to the rape and gang rape of minor girls below 12 years of age and below 16 years of age.

All of the above amendments are requisite changes in the legislation for achieving the intended objective, however, the same are not free from flaws.

The Supreme Court of India has posed questions to the Government of India, including one very pertinent question, “Now that the punishment for rape of a minor and that of murder is death, how many of the perpetrators would leave their victims alive?” a question that seems impossible at the outset to be answered.

The Ordinance lacks in its scope in as much as it only relates to punishment for rape of minor girls, and does not cover boys or even males for that matter. There are enough accounts and evidence of sexual abuse inflicted on boys and even men, and the same should have been incorporated by the Ordinance.

Lastly, fast-tracking the investigation and awarding of sentence would certainly result in speedy justice to the victim, but it would also put many innocent lives at risk of death, lest they are implicated in false and fabricated cases.

Surabhi Aggarwal

Senior Associate

The Indian Lawyer