The Criminal Law (Amendment) Bill, 2012 seeks to amend the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. There are a number of changes which are proposed to make the existing laws more stringent by making the punishment harsher and also by widening the scope of offence of sexual nature traditionally termed as “rape”. The proposed amendment also makes sexual assault a gender neutral offence meaning thereby that it takes in its ambit sexual offences committed against both male and female persons. The implications of the proposed amendments are as follows:
1) The amendment will bring about a sea change in the rape laws as applicable in India. Firstly, it seeks to replace the term “rape” by “sexual assault”. While “rape” covers the act of sexual intercourse only with reference to penetration of vagina, sexual assault widens the horizon of the crime and would include a number of acts which harm and outrage the modesty of a person. As the proposed amendment itself explains it would include, penetration of, for sexual purpose, the vagina or anus or urethra or mouth of another person with any part of the body including the penis of such a person or any object manipulated by such person.
This means that where earlier the case fell to ground in situations where the penetration of vagina by penis specifically was not proved, the same may not happen now. Now any such case where the victim’s body is violated through vagina or anus or urethra or mouth with the help of an object or any body part other than penis, then also it would be punishable under section 376. Sexual assault will also include engaging in cunnilingus or fellatio, commonly known as oral sex done on a woman and a man respectively.
The changed definition appropriately widens the scope of this section and will bring those criminals under the umbrella of penal laws who could not be convicted under any particular section earlier.
2) Secondly, “sexual assault” which was traditionally given a gender biased connotation is now made applicable to both the sexes. This change will take into account the fact a male person too can be sexually exploited.
3) Sections 375, 376, 376A and 376B have replaced the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code. The difference being as follows:
i) The word rape in section 375 has been replaced by sexual assault. This is accompanied by the widening of scope of offence under this section.
ii) Also the consent of a person under 18 years of age will be considered no consent as opposed to 16 years as under the current provision which is proposed to be changed. The age bar therefore is raised under the proposed amendment.
iii) It also introduces explanation I and II. While Explanation I states that penetration to any extent is penetration, Explanation II states that “vagina” shall include “labia majora”. This also widens the definition of the term as compared to the interpretation under the current provision.
In many cases under the current provision the convictions could not be granted because of lack of evidence of penetration as traditionally defined. While the proposed amendment seeks to include the view of law which is already widely accepted in many other countries, the same has been discussed and rejected in many judgments.
iv) Also under the proposed amendment the age has been increased from 15 years to 16 years in the exception to the section. The exception states that a man engaging in sexual intercourse with his wife will not amount to sexual assault if she is not under 16 years of age. The age bar is again raised.
v) Section 376 divides all offences under two categories under sub section 1 and 2. For offence of sexual assault under sub-section 1 the punishment is not less than 7 years while those under sub-section 2, is not less than 10 years. The sexual offences under sub-section 2 are aggravated offences as they are committed under circumstances where a person takes advantage of his position or the woman is under 12 years of age or is pregnant or is gang raped.
As per the proposed amendment if a person upon whom sexual assault is committed is under 18 years of age, it will fall under the category of aggravated offences. The age bar is again raised from 12 to 18.
vi) The proposed amendment also seeks to add the following sub clauses under section 376 (2). The additional sub-clauses will read as under :
“(i) Being in a position of economic or social or political dominance, commits sexual assault on a person under such dominance; or
(j) Commits sexual assault on a person suffering from mental or physical disability; or
(k) While committing sexual assault causes grievous bodily harm or maims or disfigures or endangers the life of a person; or
(l) commits persistent sexual assault,”
Addition of these sub clauses will go a long way in bringing justice to a number of victims who are presently not protected under section 376, like in cases where a person uses his dominant position to exploit the victim. It may also be noted that currently it is immaterial if a person committed rape once or twice as he will be convicted under section 376(1) (if other aggravating factors do not exist) and liable for imprisonment for a term not less than seven years. However, if the amendments are given affect, repeated sexual assault will make the offence fall in the category of aggravated offence punishable under section 376(2) with a term of imprisonment not less than 10 years.
vii) The proposed amendment also makes the punishment stricter under section 376A, for sexual assault on a woman, by her husband who is living separately under a separation decree or under any custom or usage, without her consent, by prescribing the punishment which shall not be less than two years but may extend to seven years and fine. This is in view of the fact that under the current provisions the prescribed punishment is for a term which may extend to two years and fine.
This is a major change and sends out message that the offence of sexual assault will be treated with strictness.
viii) Similarly, in section 376 B as currently applicable the punishment prescribed is for a term which may extend to five years and fine, is proposed to be replaced by a term which shall not be less than five years but may extend to ten years and fine.
ix) The proposed amendment also provides for changes in section 154 and 161 of the Cr PC to make provide that where an offence of sexual assault has to be reported the same shall be recorded, as far as possible, by a woman police officer.
x) Further it seeks to insert section 326 A and 326 B.
Section 326 A provides that where a person with the aid of throwing acid or administering acid, with the intention and knowledge of causing an injury, shall be punished with imprisonment for a term not less than ten years but may extend to life and fine which may extend to 10 lakh rupees.
The amendment also proposes that the fine amount thus collected shall be given to the victim affected by the offence.
Also section 326 B provides that the attempt to cause injury by throwing or administering acid will entail a imprisonment for a term not less than five years but may extend to seven years and fine.
xi) The amendment also seeks to bring about changes in the language of Evidence Act and also insert sections like 53 A which make the character or the past conduct of the victim irrelevant and unquestionable in the proceedings. Also the proviso of section 146 of the Evidence act will be substituted which will prohibit adducing evidence or putting questions to the victim regarding her character.
xii) Also the amendment will bring about changes in section 114 A which will make it obligatory for the court to presume that the victim did not consent where the victim has so stated.
A bare perusal of the proposed amendments as discussed above shed light on how these amendments, if given effect, will go a long way in ensuring justice to a number of victims who do not fall within the narrow definition of rape. Also, it has come up in many cases that the word rape should be widely construed but the court has rejected this contention time and again, finding it not conducive to Indian context.
It may also be mentioned that the change of offence from “rape” to sexual assault and raising the age from 16 to 18 years will bring the provisions of IPC in line with the newly enacted, Prevention of Children from Sexual Offences Act, 2012. The said Act also holds that any person below the age of 18 is a child and takes within its purview, as punishable, any act of insertion of body part and/or object into vagina, urethra, anus or mouth. If the amendment is not accepted and incorporated into IPC, there may be conflicts in the application of the two Acts.
The most laudable amendment appears to be recognition of persistent sexual assault as aggravated offence and liable for imprisonment not less than 10 years.