The recent case of a 6-year old girl being raped by her teacher in Bangalore has brought the laws relating to Sexual Offences under scrutiny yet again. For India, sexual abuse has been a sensitive issue, especially in the aftermath of the Delhi Nirbhaya rape case. This incident saw people across the nation come down on streets, in protest. Unfortunately though, our country also saw people make comments and going on record about how it was the “woman’s mistake”, about how “boys will be boys.” One can only hope that such people gain some perspective after incidents of children being sexually abused.
On December 23, 2012 a three member committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law in order to facilitate the provision of a quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. Justice Leila Seth, former judge of the High Court and Gopal Subramanium, former Solicitor General of India were the other 2 members of this committee. The Committee, recommended inter alia amendments to the Indian Penal Code, as it found the legislations that afford security to women in India inadequate. The amendment was first brought about vide Presidential Ordinance on February 3, 2013. The Ordinance was subsequently raised as a Bill in Parliament during the Budget Session and was passed as an Act on April 2, 2013. The Criminal Law Amendment Act, 2013 gave women the audacity to hope that constitutional equality and freedom of violence shall be reclaimed to them.
Few of the provisions of the Indian Penal Code were amended, few were added. The new provisions relate themselves to the laws against the sexual offences like acid attacks, sexual harassment, stalking, voyeurism, trafficking and rape.
Under the new Section 326A, any person who throws or administers acid on another person and causes damage or deformity is liable for an imprisonment that is not less than ten years, and may extend to life imprisonment. Any fine that is collected under Section 326A shall be made available to the victim for medical expenses. Under the Section 326B, any person who attempts to throw or administer acid on another person shall be met with imprisonment of upto seven years, but not less than five years. For the purposes of this section, the ‘damage’ that is stipulated under this section does not restrict itself to external bodily harm. The purview extends to causing internal injuries as well. Also, the ‘damage’ caused, shall not be required to be irreversible. The Right of private defence, guaranteed under Section 100 of the Indian Penal Code, extends even to the causing of the death of an attacker under certain circumstances where it may be clear that death or hurt are likely to follow. The Amendment has introduced a seventh category of private defence which includes an acid attack within its ambit.
Under the Section 354A, any man who forcefully shows pornography or demands/requests sexual favors from a woman or makes unwelcome sexual advances, commits the offence of sexual harassment simpliciter and is punishable by imprisonment of up to three years. Other categories of sexual harassment have been listed as separate offences under this amendment. Under Section 354B, a man who assaults a woman with the intent of removing her clothes (Read: Dushasana, Duryodhan and Draupadi. JK.) or compelling her to be naked, is punishable with imprisonment for three years, which may extend to seven years. The next category of sexual harassment is Voyeurism. Section 354C of the Act deals with the offence of voyeurism. Voyeurism is the act of watching a person engaged in private activities. If a man watches a woman engaged in private activities, when the woman would usually have the expectation of not being observed either by the perpetrator or by another person at the behest of the perpetrator or disseminates such image, he has committed the offence of voyeurism under section 354C and is liable to be imprisoned between one and three years for the first time, and between three and seven years for subsequent convictions. The last offence under the category of sexual harassment is stalking. Stalking is undeniably the most committed crime in India. Stringent laws with regard to this offence have been awaited and the amendment does justice to the expectations and hopes of the people. According to Section 354D of the Act, “Any man who follows a woman or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman or use by a woman of the internet, email or any other form of electronic communication commits the offence of stalking.” If a man stalks a woman, he may be punished with imprisonment of up to three years for the first time, and five years for the subsequent convictions.
Major changes have been brought about in provisions related to the offences of “Rape” and “Trafficking”.
Trafficking is the movement of a person from one place to another, with or without his consent, and against the law. The object of trafficking is precisely what is illegal when we talk about the offence. Trafficking is done for various purposes including prostitution, forced labour, sexual slavery, and beggary. The offence of trafficking is covered explicitly under the Immoral Traffic (Prevention) Act, but the Indian penal Code has been amended to include some special provisions. Under Section 370, a person commits the offence of trafficking if that person recruits, harbors, transfers, transports or receives another person for the purpose of sexual exploitation, slavery, servitude, forced organ harvesting or any other form of exploitation. There are 6 modes of commission, namely, threatening, using force/coercion, kidnapping/abduction, fraud/ deception,, abuse of power and through giving money to obtain consent. The minimum punishment for trafficking has been decided at 7 years, but it may extend upto 7 years or even life imprisonment in cases of trafficking of multiple people, or children. Section 370A deals specifically with the sexual exploitation of children who have been trafficked.
The Section 375 of the Indian Penal Code has been significantly modified. This section relates itself with the offence of Rape. The original section recognized rape as only the insertion of a penis in a woman’s vagina. The new section however includes other acts in the definition of rape. According to the amended act, a man is said to commit rape:
- If he penetrates his own penis or makes another man penetrate his penis, into the vagina, mouth, urethra or anus of a woman
- Or penetrates any other object, into the vagina, mouth, urethra or anus of a woman
- Or Manipulates her body to cause penetration
- Or applies his own mouth, or makes another man apply his mouth to the vagina, anus or urethra of a woman
The commission of such acts have to be in one of the following modes:
- against her will
- without her consent
- with her consent which has been obtained through threats
- by posing as her husband
- with her consent which was taken when she was intoxicated by alcohol or other substances
- with/without consent when she is under the age of 18 years
- when she is unable to give her consent.
The prescribed punishment for rape is 7 years minimum and may extend upto life imprisonment. Any man who is a police officer, medical officer, army personnel, jail officer, public officer or public servant commits rape may be imprisoned for at least ten years. This applies to rape cases that occur during communal riots, against pregnant women, girls under the age of 16 years. A punishment of life imprisonment, extending to death has been prescribed for situations where the rape concludes with the death of the victim, or the victim entering into a coma.
It is high time, that the society starts paying attention to the law in a routine manner, not only when some incident happens and is publicized by the media. It is time, we as Indians become more aware citizens. It is time, for us to know the law and to spread awareness about it.
About the Author
The author, Kriti Priyadarshini is a third year law student at the Rajiv Gandhi National University of Law, Punjab. A dancer and an actor at heart she hopes to make a mark in the legal fraternity along with making a mark in a lot of other fields ( Yes, she is confused). She believes to bring about change and feels that people need to be more sensitive.