NIRBHAYA REFORMS

Updated: Jun 5


Who is Nirbhaya?

As we know that our Indian law does not permit to publish the name of the rape victim, so various publications gave the victim of the Delhi Gang Rape Case the name Nirbhaya, which means "fearless", and her struggle till her death became a symbol of women's resistance to rape around the globe. All her rapists were arrested and charged with sexual assault and murder. This is one of the landmark cases which led the law through a swift reform. The media coverage of this case played a vital part in this change.


What happened in Delhi Gang Rape Case?

On the night of 16th December, 2012 a female paramedic student (physiotherapist intern) who was 23 years old was returning home from a mall with one of her male friend. They both took a public bus from outside of the mall and were accompanied by 6 other people inside the bus including the driver. The friend started getting suspicious when the bus took an off-route direction and the doors were shut. As soon as he objected, he was taunted for travelling late and an argument flared up in which he was beaten up and knocked out with an iron rod. Then the men dragged her to the back of the bus and gang-raped her over an hour and when she fought back one of them inserted an iron rod into her private part while the bus driver drove all over Delhi. After such attack, they were thrown out of a moving bus to die at the side of the road.


Those 6 men were accused of Gang Rape and murder. One of those 6 was the driver of the bus so his lawyer pleaded that he was only driving the bus but that plea was denied by the court by stating the fact of Common Criminal Intention. Another accused mysteriously died inside the jail. One of them was alleged to participate in the crime by helping them to clean the bus and remove the evidence. Last but not the least the juvenile who was involved in the rape by causing the major harms to the victim was tried in the juvenile court and sentto a juvenile home as he was 17 years old and our then law did not permit to try a juvenile as an adult in a case of a heinous crime. The juvenile was released after 3 years and this led the public protest to a different sphere.

This case was prolonged to meet the judgments because it is one of the cruelest cases in the history and it shed light on many places which needed some immediate actions for the protection of the women. Now, this is a subject of argument that the required transformations or amendments can banish the crimes or not but at that point the amendment in criminal laws regarding rape was very much needed.


What is the Amendment of 2013 all about?


INTRODUCTION

The Criminal Law Act,2013 is also known as Nirbhaya Act [i]. The Delhi Gang Rape led the system to make this amendment. This act is passed by the Lok Sabha and the Rajya Sabha both. It is basically an ordinance promulgated by Shree Pranab Mukhopadhyay, the then president of India. This act provided some amendments related to sexual offences in the below mentioned Criminal Laws –

· Indian Penal Code

· Indian Evidence Act

· Code of Criminal Procedure, 1973


ILLUSTRATION

There are several types of offences mentioned with the punishment in the amendment those are Acid Attack, Sexual Harassment, Voyeurism and Stalking.

1. Section 326A – Acid Attack is a gender neutral offence and the punishment for this offence is imprisonment not less than 10 years but it can extend to imprisonment for life and with fine as well. The fine shall be paid to the victim for medical expenses.

2. Section 326B –Attempt to Acid Attack is also a gender neutral offence and the offender is subjected to be imprisoned for not less than 5 years with fine.

3. Section 354A – Sexual Harassment is about physical contact or any type of sexual overtures, showing pornography forcefully, passing sexual remarks or any other unwelcomed sexual expression. The punishment of imprisonment depends upon the nature of the offense and the fine is optional.

4. Section 354B – Act with Intent to Disrobe a Woman which only protects women where it is punishable when someone abets a woman to be naked under any circumstances. The punishment is not less than 3 years but this may extend to 7 years and the offender is also liable to give fine.

5. Section 354C – Voyeurism includes watching or capturing a women’s private act which exposes her private parts or private parts covered with underwear only. The punishment for this offence is imprisonment with fine and the time limit of the imprisonment varies from case to case.

6. Section 354D – Stalking also protects women from being stalked by men. Where a woman clearly gives indication of disinterest but still she’s being monitored by a man in any form. The punishment for this offence is not less than 1 year but it may extend to 3 years and the offender shall also be liable to give fine.


IMPORTANT CHANGES

1. The definition of Rape in the Indian Penal Code was well explained through this amendment. Where Section 375 of the Indian Penal Code used to state about rape that it needs vaginal penetration but later the definition was broadly expressed by stating that penetration means penetration of penis into vagina, urethra, anus, mouth or any part of the body. In fact, touching private parts are also included in sexual offences. This section cleared that penetration to any extent is an offence. Where the punishment will be not less than 7 years and with fine. In the case of RAFIQ V. STATE OF U.P [ii],Justice Krishna Iyer said that ‘a murderer kills the body, but a rapist kills the soul'

2. Section 376A was added to state “inflicting an injury which causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death “

3. Cr.P.C and the Evidence Act has also been through some changes like giving women the rights to commit crimes against the person who commits or tries to commit a crime against her. The Criminal Law Amendment 2013 has objected some of the human rights as well.

4. The juveniles are tried as an adult in case of rape [iii]. As we know how the public reacted after the release of the juvenile who was involved in the Nirbhaya Case. This public protest led us to this swift reform.

5. Common Criminal Sexual Assault was not addressed till 2012 Delhi Gang Rape Case.


EFFECT

1. In the infamous case of Nepalese Woman Rape Case [iv], an unsound girl was raped and murdered by 7 Indian men and the girl was a non-Citizen of India. Those men got capital punishment based on their Common Criminal Intention.

2. Meanwhile, crime against women kept on increasing, from 24,293 rapes in 2012, to 34,651 rapes in 2015.

3. The rate of lodged complaints increased in number as the women got to know that how much the law is in going to enact in their favor.

4. A survey by DCW says that after this amendment 53.2% false rape cases were filed between April 2013 and July 2014.

5. All the state ministries started taking safety measures for women.

6. In INTERNATIONAL LABOUR ORGANIZATION SEMINAR it was recognized that Sexual Harassment of women at workplace falls under Gender Discrimination but in the case of VISHAKA V. STATE OF RAJASTHAN [v]Supreme Court held that Sexual Harassment includes behavior such as physical contacts, demanding sexual favors or passing sexually colored remarks etc. These guidelines were followed in 2013’s amendment.


POSITIVE IMPACTS

  1. The definition of rape was changed and appropriately addressed with details which was very much needed because the state is moving forward and becoming critical in nature, so it needs some flexible legal structure to protect the citizens. As the civilization is moving forward the crimes are also increasing in different forms so amendments are always needed to protect people from any kinds of crime, so a rigid legal system is not going to be fruitful.

  2. Juvenile laws were also amended. As we know that in the Nirbhaya case the alleged juvenile caused some horrifying injuries to the female due to which she died, and his mindset can never be judged under juvenile laws because even if he is under aged the gravity of what he did should not let him try as a juvenile at all.

  3. The Government has launched Nirbhaya Fund for sexual assault victims. In a country like India where the majority of the population is under privileged there the financial matter becomes a very serious part. Most of the females are not financially capable to spend such amounts for medical purposes. A city like New Delhi became the city of fear in front of the world.

  4. Government has also established many helplines, mobile apps and many more things to protect from sexual assaults. It is not that the Nirbhaya Case was the first heinous case in history, but it was like an eye opener for the entire nation which shook the nation.

  5. Fastrack courts and all female police stations were established as safety measures. We know that financial ability is also a matter of fact in our country, so it is very difficult for a poor family to maintain a case for so long as it consumes too much money.

  6. Rights in favor of the women are also established by overlooking human rights as well. This is not to discriminate men but to maintain the equilibrium only by empowering women and to shielding women from getting raped.


CRITICISM

This amendment has been criticized by many as it has infringed various aspects of human rights and discriminated with the rights of the male. The critics tried to point out that all men are not rapists and some complaints might be lodged under these amended sections which might not be a real one. Sometimes females can take the advantages of this biased system. Some of the women’s rights organizations also protested over this amendment because of certain suggestions given by the Verma Committee [vi]which were denied, for instance – they asked to criminalize marital rape but it was denied by saying that the system cannot interfere in one’s household this much but this is criminalized in many other countries.


CONCLUSION

After the Delhi Gang Rape case occurred, the people of India were extremely horrified due to the heinous acts committed against the victim. Women needed to feel safe again so that they could walk on the streets without the feeling that they could be harmed anywhere and anytime. The amendment was long due and after such an incident it was an absolute necessity. Although there are both positive and negative sides of this amendment, but we can never deny that this amendment was needful at that certain time. The amendment has created an easier pathway of punishing the guilty and successfully preserved the safety of women but yes, this is also a matter of fact that nothing can abolish crimes. Abolishment of a crime is a myth, but we can try to punish the guilty by making flexible laws which can get amendment depending upon the situation and the good conscience of the judge is also required to meet the justice. Our Government and the judicial system have always tried to give their best but it is also the duty of the citizens to follow the rules properly and keep ourselves rigid on the path of justice.

[i] https://en.wikipedia.org/wiki/Criminal_Law_(Amendment)_Act,_2013 [ii] https://indiankanoon.org/doc/915673/ [iii]https://en.wikipedia.org/wiki/Juvenile_Justice_(Care_and_Protection_of_Children)_Act,_2015#:~:text=A%20revamped%20Juvenile%20Justice%20Bill,'%20or%20an%20'adult'. [iv] https://m.timesofindia.com/city/kolkata/kolkata-four-convicted-in-nepalese-woman-rape-case/amp_articleshow/68054361.cms [v] https://indiankanoon.org/doc/1031794/ [vi] https://www.thehindu.com/news/national/2013-justice-verma-panel-report-wanted-changes-to-sexual-harassment-law/article25221588.ece


~Avimanyu Chowdhury

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