Sunday, 19 March 2017

Nirbhaya Act – Criminal Law (Amendment) Act

Introduction

Nirbhaya Act is basically a Criminal Law (Amendment Act) of 2013.  This law seeks to bring amendments to laws on sexual offenses. Through this amendment, the relevant sections of Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act are altered to bring strong punishments relating to sexual offenses. This bill was passed by the lower house of the Parliament on March 19, 2013. Subsequently, the elders present in the upper house passed the bill on  March 21, 2013.  So fast was the response of the government that the honorable President of India gave his consent for the bill on April 2, 2013. A day after on April 3, 2013, the new bill, nicknamed as Nirbhaya Act, came into the force. The height of the irony was that the bill could not prevent the juvenile convict of the Delhi Gang Rape Case walked free. The ruling hierarchy had to face the wrath of the protest in the streets of the country for keeping the amendment bill in abeyance for almost three years, cling on its nitty-gritty.

nirbhaya act

Nirbhaya Act History

For many years, the ordinary citizens of India wanted to enact a law to curb the growing trend of rapes cases in our country. As usual, Indian polity was not that interested in it as the parties are looking at the specifics that need to be added to make it a comprehensive law. On this backdrop, there was a gang rape of a young woman at New Delhi in 2012.  A physiotherapy intern was traveling with her boyfriend in an empty bus to her house. The workers of the bus and their friends took the vehicle for several rounds around New Delhi and brutally assaulted and raped the girl in turns. Despite giving the best of available treatments in New Delhi and Singapore, she died from her injuries thirteen days later. This incident got a lot of coverage in the national and international media. The United Nations Entity for Gender Equality and Empowerment of Women had condemned the incident.  Its Chairperson called the Indian and Delhi governments to do whatever necessary to bring culprits to books.  He also urged the Indian authorities to take up radical reforms to make sure the delivery of gender justice and reach out with efficient services for the benefit of women in the country. This gruesome incident angered the ordinary citizens and they took to the streets demanding the stringent legislation to prevent further incidents. They fought with the security forces peacefully, making their point for bringing a stringent legislation against the rape.

women rape

Preparation of the Draft

About six days after the gruesome incident, the Central government appointed a judicial committee headed by Justice J.S. Verma, a former Supreme Court Judge, to suggest suitable amendments to the Criminal Law to correctly deal with the cases involving sexual assault. The committee also included retired Judge Leila Seth and leading advocate in Supreme Court Gopal Subramaniam.  This 3-member committee was given a month time to submit its report. The judicial committee studied the cases and submitted its report in just 29 days, on January 23, 2013. During its one-month review, it studied and analyzed about 80,000 suggestions and petitions it received from various sources. The comments for the committee came from the public, eminent jurists, lawyers, NGOs and women’s groups.  The report by the committee mainly held the government and the law enforcing agencies responsible for the growing menace of rape and sexual assault cases in the country. The major suggestions of the committee included a revision of AFSPA in conflict areas, resolution of ambiguity over the control of Delhi Police, setting the life imprisonment as the maximum punishment for rape convicts, etc. Though there were clamors for the death penalty for the rape convicts from the public, the judicial committee stuck to the life imprisonment as the maximum punishment for the rape convicts.

indian response

Ordinance Route

Compiling the suggestions given by the expert panel, a group of Ministers on February 1, 2013, gave consent to bring an ordinance to bring the law into effect immediately. This was mainly done to quench the protests across the country.  In reality, the group of Ministers had in principle adopted 90% of the suggestions given by the Justice Verma committee. The ordinance was later replaced by a Bill with many changes. The lower house of the Parliament passed the Bill on March 19, 2013.

amended nirbhaya act
Changes in Criminal Code

The most important change is in the rape definition under Indian Penal Code (IPC).  Though the ordinance sought to replace the word rape with sexual assault, the new act drafted retained that word in Section 375.  It extended the definition of the word rape to include other acts in addition to vaginal penetration. The altered definition covered the acts such as penetration of penis or any object or any part of the body to any extent into the vagina, mouth or urethra of another person or making another person do so. All these acts have become punishable under the new law. In the same breath, the applying of mouth or touching private parts of a person also is considered as the sexual offense. The section also clarified on the ambiguity about the extent of penetration and lack of physical resistance. This clarity helped the judges to term the act as a sexual offense in more clear terms. The new bill extends the quantum of punishment under new provisions from seven years to the imprisonment for the lifetime. Only in exceptional cases, the death sentence would be given under new act.


nirbhaya act changes

A new section called 376A is introduced in the Indian Penal Code to find out the quantum of punishment if the convict inflicts serious injury to a person. If the victim dies of internal injury or goes into the persistent vegetative state, the quantum of punishment a convict attracts would be 20 years of rigorous punishment. If the trying officer so thinks, the punishment can be extended up to life imprisonment or death sentence. This section also deals with the gang rape cases. In these cases, the persons involved, regardless of their age and gender, will have to undergo rigorous imprisonment for a term not less than 20 years.  In the rarest of rare cases, the quantum of punishment may extend up to imprisonment of a lifetime, Apart from these, the convict has to give compensation to the victim. The amount of the compensation has to be reasonable enough to meet the medical expenses and rehabilitation of the victim. If the convict fails to pay the compensation amount, he will have to undergo the rigorous punishment further. The punishment extension on account of non-payment of the compensation would be decided by the Judge of the trial court.

final nirbhaya act

Juvenile Offenders

In the case of juvenile offenders, the Juvenile Justice Board will call the shots. The board will form a panel of psychiatrists to look into the role of the so-called juvenile to decide his mindset.  Depending on the feedback, the Juvenile Justice Board will transfer the case to the police or send him to the correction home.

juvenile offenders

Changes in CrPC and Evidence Act

 The process of recording the statement is made more victim-friendly and easy. However, two crucial changes have been made in the law. They are given below.

  1.  The law has made irrelevant the character of the victim.

  2.  If the sexual intercourse is proved beyond doubt, then there is no presumption of’ no consent’. Moreover, the court records the statement by the victim without any prejudice or bias.  The court will not ask for the proof of ‘no consent’ from the prosecution or the victim.

Thuruvananthapuram New Delhi, Delhi, India
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