Anda di halaman 1dari 74

An Analytical Study of Laws Relating

to Sexual Offences in India

With reference to the Criminal Law Amendment Act, 2013
A Research Project Work towards Fulfillment Of
VIth Semester, B.Sc. LL.B
Integrated Course
For The Academic Session 2013-14




5 years Integrated B. Sc. LLB
Reg. No. 1141844003
Under the guidance of: Asst. Prof Chinmaya Kumar Mohapatra, SNIL


Siksha O Anusandhan University, Odisha, India

Sl. No.







Guide Certificate



List of Abbreviations




Justice Verma Committee Recommendations



Features of the Criminal Law Amendment Act, 2013



The Criminal Law Amendment Bill, 2013


Legislative Analysis



Justice Verma Committee Report: An Overview



The Criminal Law Amendment Bill, 2012: An Overview



The Criminal Law Amendment Act, 2013: An Overview



Comparative Analysis: The Indian Penal Code / The

Criminal Law Amendment Bill, 2012 / The Criminal Law
Amendment Ordinance 2013



Comparative Analysis: Provisions Relating to Similar

Offences Under The Criminal Law Amendment


Ordinance 2013

Comparative Analysis: Offences Punishable Under The

Criminal Law Amendment Ordinance 2013 & Other



Analysis of Age of Consent as per different




Comparative Analysis of Age of Consent in different




Law Relating to Sexual Offences: The International




Statistical Analysis of Rape Cases in India



Judicial Analysis



Case History: The 2012 Delhi Gang Rape



Case History: The 2013 Mumbai Gang Rape



Case History: The Famous Vishaka Case



Case History: The Mathura Rape Case



Conclusion / Appraisal / Suggestions






I owe a great many thanks, to a great many people who have helped and have
supported me throughout the making of this Project Work. I would like to show my greatest
appreciation to Mr. Chinmaya Kumar Mohapatra, Asst. Professor, SNIL & the Guide-in3

charge. I cant say thank you enough for his tremendous help and support. My deepest
gratitude to Prof. (Dr) Jayadev Pati, Dean SNIL, for guiding me and correcting various
documents of mine with proper attention and care. He has taken pain to go through the
project and make necessary correction as and when needed.
I would also like to express my thanks and gratitude to the Asst. Prof Mrs.
Madhubrata Mohanty, Faculty, SNIL for extending her support and guidance without
which the completion of this Project Work would have been a more difficult task.
My deep senses of gratitude to Asst. Prof Amruta Das, Asst. Prof Amrita Mishra,
Members of Faculty, SNIL and Mr. Hiranmaya Nanda, Research Scholar, SNIL for their
kind support and guidance in the framing of the materials for this Project Work. Thanks and
appreciation to the helpful people at SOA NATIONAL INSTITUTE OF LAW, for their
support. I would also like to thank my friends without whom this Project work would have
been a distant reality. I also extend my heartfelt thanks to my family and well wishers.
I hope that this research project will prove to be a breeding ground for the next
generation of students and will guide them in every possible way. My special thanks go to
the Almighty without whom anything is next to impossible.
Thank you!!!

5 years Integrated B. Sc LL.B (VIth Semester)
Reg. No. 1141844003
SOA National Institute of Law (SNIL)
SOA University, Odisha, India


I certify that the Project Work on the topic An Analytical Study of Laws
Relating to Sexual Offences in India for the Academic Session 2013-14 has

been prepared by me under the guidance of Mr. Chinmaya Kumar Mohapatra, Asst.
Professor, SNIL & the Guide-in-charge and I declare that the same has not been submitted
for evaluation elsewhere.

5 years Integrated B. Sc LL.B (VIth Semester)
Reg. No. 1141844003
SOA National Institute of Law (SNIL)
SOA University, Odisha, India

This is to certify that Mr. Abhishek Choudhary of BSc LLB course has
successfully completed his VIth Semester Research Project titled An Analytical Study

of Laws Relating to Sexual Offences in India

as provided by the

institution, for the academic session 2013-14.

Guides Signature
Mr. Chinmaya Kumar Mohapatra,
Asst. Professor, Law
SOA National Institute of Law (SNIL)
SOA University, Odisha, India

We legislate first, and think afterwards;
complexity is heaped upon complexity and confusion becomes worse confounded

It gave me an immense pleasure to write a preface of my Research work titled as An

Analytical Study of Laws Relating to Sexual Offences in India with
reference to the Criminal Law Amendment Act, 2013.
The fateful night of December 16 th, 2012 has proved to be a revolutionary night that
has awakens the whole nation. One of the most horrific, barbarous, and brutal gang-rape that
the nation have ever witnessed and the subsequent murder of Nirbyaya in December 2012,
impelled the Government of India to pass the Criminal Law (Amendment) Act, 2013. The
Criminal Law (Amendment) Act, 2013 was the result of the enormity as well as the
seriousness for an immediate reform in Rape Laws prevailing in one of the biggest
democracy of the world. Popularly, known as the Anti-rape Act, the Act of 2013 aimed to
amends the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CCP), 1973,
the Indian Evidence Act (IEA), 1872 and the Protection of Children from Sexual Offences
Act, (POCSO), 2012. In a way, the Act of 2013 is a radical expression of the fifty-seventh
session of the Commission on the Status of Women held at the United Nations Headquarters,
New York, March 04-15, 2013 as both the interventions focus on Violence Against Women
(VAW) with particular emphasis on womens safety and security. The Amendment Act
sought to redefine the offence of rape and amend the penal laws in line with the
recommendations of the Law Commission of India and the National Commission for
I have tried my best to explain the subject matter in a best possible way and had tried
to omit the errors, if found any, I request the student reading this research work, and the
teacher who are honoring me by using the same, to let me know those errors and omissions,
so that I can rectify the omissions in my next research work. Needless to say such
suggestions will be gratefully received and acknowledged!
5 years Integrated BSc LLB (VIth Semester)
Reg. No. 1141844003
SOA National Institute of Law (SNIL)
SOA University, Odisha, India


Paragraph or paragraphs






All India Reporter






exempli gratia




Government of India









p./ pp.

Page/ pages




Privy Council


Supreme Court Cases


Supreme Court


First Information Report


Indian Penal Code


Code of Criminal Procedure


Indian Evidence Act


Prevention of Child from Sexual Offences Act





with effect from


with respect to


Armed Forces Special Powers Act




Supreme Court


United States


Allahabad High Court

All L.J

Allahabad Law Journal


Bombay High Court


Calcutta High Court


Delhi High Court


Madras High Court



The Criminal Law (Amendment) Act, 2013, was introduced w.e.f. 03/02/2013 to
amend the Indian Penal Code, 1860, Indian Evidence Act, 1872, and the Code of
Criminal Procedure, 1973. By the ordinance S. 375, S. 376, S. 376A, S. 376B, S. 376C
and S. 376D of the Indian Penal Code have been substituted by new sections. It has also
been clarified that in cases of S. 375 the lack of physical resistance is immaterial for
constituting an offence.
As the Criminal Law (Amendment) Bill, 2013 made its winged way through
Parliament on 19 March 2013; every Indian applauded this as a loud, clear and deterrent
signal. The Act clearly signaled that the, Indian society would no longer tolerate the 'errant
behavior' that shook us on December 16, 2012.
The Act encompasses features that provide stringent punishment for crimes against
women such as rape, acid attacks, voyeurism and stalking. The punishments range from life
imprisonment to death penalty for the repeated offenders. Of course, some aspects of the new
law are positive in broadening the defined ambit of crimes against women and intensifying
the punishment for such crimes. For the first time, acid attacks that cause harm to the victim
will fetch the victimizer an imprisonment for term of minimum 10 years, which is extendable
to life. Repeated stalking, which often precedes more aggravated sexual crimes, has also
been designated as a specific and non-bailable offence.
Taking a serious note of the inadequacy of the law relating to sexual offences
especially the offence of Rape manifested in a number of judgments of the apex Court and
its failure to safeguard the rights of the innocent victims against the heinous crime against
humanity and public criticism, the Parliament of India enacted the Criminal Law











female physiotherapy intern was beaten mercilessly and brutally gang raped in the capital
city of Delhi. The brave girl died from her injuries thirteen days later, despite receiving finest
medical treatment in India and Singapore. The heinousness of the crime can be assumed
merely from the fact that the incident not only generated national coverage but also has
attracted international attention and was condemned not only by the United Nations Entity

for Gender Equality and the Empowerment of Women, who called on the Government of
India and the Government of Delhi "to do everything in their power to take up radical
reforms, ensure justice and reach out with robust public services to make womens lives more
safe and secure". As a consequence, the nation has witnessed major public protests not only
in Delhi, where thousands of protesters clashed with security forces, but the same has been
observed in major cities throughout the country. The horrific gang-rape and the subsequent
murder of Nirbyaya (fearless) in December 2012 impelled the Government of India to pass
the Criminal Law (Amendment) Act, 2013.

Against the backdrop of the nation-wide outrage over the one of the most tragic,
brutal, diabolical, grotesque, revolting, heinous, and the inhuman gang-rape, commonly
known as Nirbhaya- case incident of December 16, 2012, impelled the Parliamentarian of
the country to drive the issues of violence against women to the core-stage of political
discourse. As a result of which, on December 22, 2012, the central government appointed a
three-member judicial committee famously known as Justice Verma Committee headed
by the Former Chief Justice of India, Justice J.S. Verma, Justice Leila Seth and Gopal
Subramanium. The key objective of the Commission was to review for possible
amendments to the criminal law especially the penal laws and suggest measures for speedy
trials for cases involving sexual offences and harsher penalties for vicious offences related to
violence against women. Taking further cognizance of the strident storm of public protests in
general and a tribute to Nirbhaya in particular, on January 23, 2013, the commission
submitted its recommendations by identifying lack of good governance as the principle
cause of violence against women. The commission goes on to criticise the government, the
abysmal and old-fashioned police system alongside public apathy in tackling violence
against women, and thereby, recommends dramatic transformation in the legislations. The
recommendations are based on more than 70,000 suggestions received from various
stakeholders, social activists and public comprising eminent jurists, legal professionals,
NGOs, womens groups and civil society through varied methods viz., emails, posts and fax.
A 631-page report consisting of 14 chapters include recommendations on laws related to

rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims,
police, electoral and educational reforms. Subsequently, Parliament replaced the promulgated
Ordinance, which lapsed on April 04, 2013. However, as per the Gazette Notification New
Delhi, Tuesday, April2, 2013, the word bill has been replaced by the word Act.

Some of the changes described by the Justice Verma panel

are as follows
There is a need for overall wide spectrum of law for violence against the women.
It is important to address even the placid sexual harassment and that each and every
complaint of sexual harassment must be registered.
The crimes such as Voyeurism and Stalking, even-teasing as well as insensitivity
of the police for dealing with the rape cases should also be punished.
The panel also suggested that there was a need of provisions for addressing the sexual
assault on the homosexuals.
The panel also recommended abolition of the Khap panchayat stating Khaps to be
unconstitutional hence they do not have the right to declare a marriage invalid.
In order to preserve the rules of law, there is a need for police reforms as well.
The Panel suggested that Law enforcement agencies should not work as slaves of the
political masters.
There was a need to stop politicization of crime. As of now, the politicians facing
conviction are disqualified for the elections, but the panel suggested that these
politicians should be disqualified in case cognizance of the offence is taken in the
court. There was no need to even wait for ending of the trial.
Need of reforms to prevent marital rape as well as rape of children in their homes has
also been addressed.
Theres a need to bring sexual violence by the personnel on duty under one common
The panel suggested the need to take into consideration, the continuance of Armed
Forces Special Powers Act (AFSPA) in the areas at the earliest.
Theres a need for posting special commissioners in the conflict areas for the safety of
the women.

Theres also the need of effective control of the subordinate judiciary by the high
No delay should be there in imparting the necessary medical aid to the victims, even
in case of the private practitioners.
The general laws which were applicable to detention of women in the regular hours
need to be followed sternly.
There was a need of stringent measures for ensuring dignity as well as security of the
women, especially in the conflict areas.
Violation of equality of women should be considered constitutional violation.
There was a need for the separate Bill of Rights for women that will make sure that
women would have their own rights for having sexual autonomy.
Registration of marriages must be made compulsory, as it will eradicate the
possibility of demand for dowry.
Theres a need for amendment of Criminal law amendment bill 2012.
Journey of women in public transport must be made safer.
There was a need of special procedures for protecting the people with disabilities
from the crimes such as rape.
Juvenile homes must run in spirit as envisaged in Juvenile Justice Act. The Panel
additionally noticed that this juvenile home has become a hub for all kinds of sexual
Indifferent attitude of the government towards missing children needed to be taken
into consideration.
Minor children trafficking should be considered as a serious offence.
In case, a police officer or a public servant is involved in child trafficking, it should
be dealt with in a stricter manner than usual.
The judiciary of India should have core responsibility of making sure that the
fundamental rights through the constitutional remedies are fulfilled. The CJI has the
right to take up suo motu cognizance and social activists must help the Court in this.
In terms of education, theres a need to make sure non-discrimination towards
children and particularly women.

Recommendations of J. Verma Committee With Respect To

Modification of Punishments in Cases Involving Offences
Related to Violence Against Women

Punishment for rape must be given in terms of rigorous imprisonment which may
range from seven years to life term.
Punishment for rape that leads to death or vegetative state must be given in terms
rigorous imprisonment ranging from imprisonment not less than 20 years which may
extend to life imprisonment (imprisonment for the remaining life of the convict).
Offences of gang-rape must entail punishment ranging from imprisonment not less
than 20 years which may extend to life imprisonment (imprisonment for the
remaining life of the convict).
In case of Gang-rape causing death of the victim, life imprisonment for the convict
must be made compulsory.
Voyeurism may lead to a punishment of up to 7 years.
Stalking or attempting to contact a woman repeatedly via any means must land the
person in jail for up to 3 years.
Trafficking should be made punishable with imprisonment ranging from not less than
7 years to 10 years.

Features of
the Criminal Law (Amendment) Ordinance, 2013
This Ordinance may be called the Criminal Law (Amendment) Ordinance, 2013. The
key features of the said Ordinance are as follows:
Insertion of new Section 166A to the Indian Penal Code : Public servant disobeying

direction under law.

Insertion of new Sections 326A and 326B to the Indian Penal Code : Voluntarily
causing grievous hurt by use of acid, voluntarily throwing or attempting to throw

Insertion of new sections 354A, 354B, 354C and 354D to the Indian Penal
Code: Sexual harassment and punishment for sexual harassment, Assault or use of

criminal force to woman with intent to disrobe, voyeurism, stalking.

Substitution of new sections 370 and 370A for section 370 to the Indian Penal
Code: Trafficking of person, employing of a trafficked person.


Substitution of new sections for sections 375, 376, 376A, 376B, 376C and 376D to
the Indian Penal Code: Sexual assault, punishment for sexual assault, punishment
for causing death or resulting in persistent vegetative state of the victim, sexual
assault by husband upon his wife during separation, sexual intercourse by a person in

authority, sexual assault by gang and punishment for repeat offenders.

Insertion of new section 198B of the Code of Criminal Procedure : Cognizance of

Insertion of new section 53A of the Indian Evidence Act, 1872: Evidence of

character or previous sexual experience not relevant in certain cases.

Substitution of new section for section 114A of the Indian Evidence Act,

1872: Presumption as to absence of consent in certain prosecution for sexual assault.

Substitution of new section for section 119 of the Indian Evidence Act,
1872: Witness unable to communicate verbally.

What does the Criminal Law (Amendment) Ordinance,

2013 include?
The President of India exercising the power conferred to him under Part V,
promulgated an Ordinance known as the Criminal Law (Amendment)
Ordinance, 2013 on 02nd April, 20131 which deemed to come into force from 03 rd
February, 2013. The Ordinance took notice of offences such as stalking, voyeurism, acid
attacks as well as disrobing of women. These crimes were given the status of specific
offences under the Indian Penal Code. The ordinance was approved by Union Cabinet of
India on 1st February 2013.
The Criminal Law (Amendment) Ordinance, 2013 comprises of various
recommendations from the JS Verma committee as well.
The said Ordinance is an impact of the Delhi gang rape which took place on 16
December 2012 in a moving bus. The ordinance brought drastic changes to the existing
1 The Official Gazette of India, No. 13 of 2013

criminal law by making amendments in the Code of Criminal Procedure (CrPC), the
Indian Penal Code (IPC) and the Evidence Act.

The Criminal Law (Amendment) Bill 2013

The Criminal Law (Amendment) Bill was passed by the Lok Sabha on 19 March
2013, and by the Rajya Sabha on 21 March 2013, making certain changes from the
provisions in the Ordinance2. The Bill received Presidential assent on 2 April 2013 and
came into force from 3 April 2013.

The Criminal Law (Amendment) Bill 2013: Key elements

The Criminal Law (Amendment) Bill 2013 was actually the Ordinance that was
promulgated by the President of India on 02nd April, 20133.
The bill seeks to make amendments in the Code of Criminal Procedure, the Indian
Penal Code, the Protection of Children from Sexual Offences Act as well as the
Indian Evidence Act.
The bill states that offender should be given an imprisonment of not less than 20
years, extendable up to life term.
The bill also includes provisions for death sentence for offenders who are convicted
earlier for such crimes.
This is for the first time that the bill described voyeurism and stalking as the nonbailable









Perpetrators of acid attacks would be sentenced for 10-year jail term.

The Criminal Law (Amendment) Bill 2013: An Overview

2 "Lok Sabha passes anti-rape bill". Hindustan Times. 19 March 2013. Retrieved 21 April 2013.
3 supra

Section 370 of Indian Penal Code (IPC) has been substituted with new sections, 370
and 370A which deals with trafficking of person for exploitation.
If a person,
(a) recruits,
(b) transports,
(c) harbours,
(d) transfers, or
(e) receives,
a person, by using threats, or force, or coercion, or abduction, or fraud, or deception, or by
abuse of power, or inducement for exploitation including prostitution, slavery, forced organ
removal, etc. will be punished with imprisonment ranging from at least 7 years to
imprisonment for the remainder of that persons natural life depending on the number or
category of persons trafficked.4 Employment of a trafficked person will attract penal
provision as well.5
The most important change that has been made is the change in the definition
of rape under the Indian Penal Code, 1860. Although the Ordinance sought to change the
word rape to sexual assault, in the Act the word 'rape' has been retained as in Section 375,
and was extended to include acts in addition to vaginal penetration. The definition is broadly
worded with acts like penetration of penis, or any object or any part of body to any extent,
into the vagina, mouth, urethra or anus of another person (the victim) or making another
person do so, apply of mouth or touching private parts constitutes the offence of sexual
assault. The said provision has also clarified that penetration means "penetration to any
4 Section 7, Criminal Law (Amendment) Ordinance, 2013
5 ibid

extent", and lack of physical resistance is immaterial for constituting an offence. Except in
certain aggravated situation the punishment will be imprisonment not less than seven years
but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated
situations, punishment will be rigorous imprisonment for a term which shall not be less than
ten years but which may extend to imprisonment for life, and shall also be liable to fine.
A new section, 376A has been introduced which states that if a person committing the
offence of sexual assault, "inflicts an injury which causes the death of the person or 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 twenty years, but which may extend to
imprisonment for life, which shall mean the remainder of that persons natural life, or with
death."6 In case of "gang rape", persons involved regardless of their gender shall be punished
with rigorous imprisonment for a term which shall not be less than twenty years, but which
may extend to life and shall pay compensation to the victim, which shall be just and
reasonable to meet the medical expenses and rehabilitation of the victim. The age of
consent in India has been increased to 18 years, which means any sexual activity irrespective
of presence of consent with a woman below the age of 18 will constitute statutory rape.
Certain changes has been introduced in the CrPC and the Evidence Act, like the
process of recording the statement of the victim has been made more victim friendly and
easy however, the two critical changes are:
1. the 'character of the victim' is now rendered totally irrelevant, and
2. there is now a presumption of 'no consent' in a case where sexual intercourse is
proved and the victim states in the court that she did not consent.

6 Section 8, Criminal Law (Amendment) Ordinance, 2013



Legislative Analysis
The major problem that is being witnessed by the society in the light of this law is
that it is not water tight. Our leaders, like always, have failed to ensure the laws they enact
are free from loopholes. The lack of gender neutrality in definition of offences such as
Disrobing, Voyeurism, Rape etc, and absence of law on marital rape, compensation for
victims of rape, the age of consent and various other lacunas has always created serious


The Centre has managed to get the Criminal Law (Amendment) Bill, 2013, passed by
Parliament in the nick of the time. Rajya Sabha endorsed the anti-rape Bill on Thursday,
March 21st 2013, as passed by the Lok Sabha, allowing the government barely enough time
to get the assent of the President and notify the Act that will replace the Ordinance that
would have otherwise lapsed on Friday March 22, 2013.
In a nutshell, the Act broadens the definition of rape and punishes a wide range of
sexual acts in widest possible stringent terms. Though the initiative taken by the Government
of India is commendable, what is really needed is the effective and sensitive implementation
of the law.7


The JS VERMA COMMITTEE submitted its report on January 23, 2013, wherein
several recommendations on laws related to rape, sexual harassment, trafficking, child sexual
abuse, medical examination of victims, police, electoral and educational reforms has been
made. A brief summary of the key recommendations of the Committee are as follows:
RAPE: The Committee recommended that the gradation of sexual offences should be
retained in the Indian Penal Code, 1860 (IPC). The Committee was of the view that rape
7 Prof. (Dr) B.C. Nirmal, BHU LAW SCHOOL NEWSLETTER, Vol. I, No. 4, Jan-Mar, 2013

and sexual assault are not merely crimes of passion but an expression of power. Rape should
be retained as a separate offence and it should not be limited to penetration of the vagina,
mouth or anus. Any non-consensual penetration of a sexual nature should be included in the
definition of rape.
The IPC differentiates between rape within marriage and outside marriage. Under the
Indian Penal Code sexual intercourse without consent is prohibited. However, an exception
to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon
a wife. The Committee recommended that the exception to marital rape should be removed.
Marriage should not be considered as an irrevocable consent to sexual acts. Therefore, with
regard to an inquiry about whether the complainant consented to the sexual activity, the
relationship between the victim and the accused should not be relevant.
SEXUAL ASSAULT: Currently, assault or use of criminal force to a woman with
the intent to outrage her modesty is punishable under Section 354 of the Indian Penal Code
with 2 years imprisonment. However, the term outraging the modesty of a woman is not
defined in the Indian Penal Code. Thus, where penetration cannot be proved, the offence is
categorized as defined under Section 354 of the Indian Penal Code. The Committee
recommended that non-penetrative forms of sexual contact should be regarded as sexual
assault. The offence of sexual assault should be defined so as to include all forms of nonconsensual non-penetrative touching of a sexual nature. Sexual gratification as a motive for
the act should not be prerequisite for proving the offence. The offence should be punishable
with 5 years of imprisonment, or fine, or both. Use of criminal force to disrobe a woman
should be punishable with 3 to 7 years of imprisonment.
VERBAL SEXUAL ASSAULT: At present, the use of words or gestures to
insult a womans modesty is punishable with 1 year of imprisonment or fine or both under
Section 509 of the IPC. This section should be repealed. The Committee has suggested that
use of words, acts or gestures that create an unwelcome threat of a sexual nature should be
termed as sexual assault and be punishable for 1 year imprisonment or fine or both.


SEXUAL HARASSMENT: Some of the key recommendations made by the

Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Bill, 2012 are provided below:
Domestic workers should be included within the purview of the Bill.
Under the Bill the complainant and the respondent are first required to attempt
conciliation. This is contrary to the Supreme Court judgment in Vishakha v. State of
Rajasthan8 which aimed to secure a safe workplace to women.
The employer should pay compensation to the woman who has suffered sexual
The Bill requires the employer to institute an internal complaints committee to which
complaints must be filed. Such an internal committee defeats the purpose of the Bill
and instead, there should be an Employment Tribunal to receive and adjudicate all
ACID ATTACK: The Committee opined that the offence of acid attacks should not be
clubbed under the provisions of grievous hurt which is punishable with 7 years imprisonment
under the Indian Penal Code. It noted that the offence was addressed in the Criminal Law
Amendment Bill, 2012. The Bill prescribes a punishment of imprisonment for 10 years or
life. It recommended that the central and state government must create a corpus to
compensate victims of crimes against women.
Armed Forces (Special Powers) Act, 1958 (AFSPA) in conflict areas needs to be revisited.
At present, the AFSPA requires a sanction by the central government for initiating
prosecution against armed forces personnel. The Committee has recommended that the
requirement of sanction for prosecution of armed forces personnel should be specifically
excluded when a sexual offence is alleged. Complainants of sexual violence must be afforded
witness protection. Special commissioners should be appointed in conflict areas to monitor
8 AIR 1997 SC 3011: 1998 (1) BJLR 228: 1997 (3) Crimes 188 (SC): 1977 (5) SCALE 453: (1997) 6
SCC 241: (1997) Lab IC 2890

and prosecute for sexual offences. Training of armed personnel should be reoriented to
emphasize strict observance of orders in this regard by armed personnel.
TRAFFICKING: The Committee noted that the Immoral Trafficking Prevention Act,
1956 did not define trafficking comprehensively since it only criminalized trafficking for the
purpose of prostitution. It recommended that the provisions of the Armed Forces (Special
Powers) Act on slavery be amended to criminalize trafficking by threat, force or inducement.
It also recommended criminalizing employment of a trafficked person. The Juvenile and
Women Protective Homes should be placed under the legal guardianship of High Courts and
steps should be taken to reintegrate the victims into society.
CHILD SEXUAL ABUSE: The Committee has recommended that the terms harm
and health be defined under the Juvenile Justice Act, 2000 to include mental and physical
harm and health, respectively, of the juvenile.
the proposal for chemical castration as it fails to treat the social foundations of rape. It
opined that death penalty should not be awarded for the offence of rape as there was
considerable evidence that death penalty was not a deterrence to serious crimes. It
recommended life imprisonment for rape.
recommended the discontinuation of the two-finger test which is conducted to determine the
laxity of the vaginal muscles. The Supreme Court has through various judgments held that
the two finger test must not be conducted and that the previous sexual experience of the
victim should not be relied upon for determining the consent or quality of consent given by
the victim.
POLICE REFORMS: The Committee has recommended certain steps to reform the
police. These include establishment of State Security Commissions to ensure that state
governments do not exercise influence on the state police. Such Commissions should be
headed by the Chief Minister or the Home Minister of the state. The Commission would lay

down broad policy guidelines so that the Police acts according to the law. A Police
Establishment Board should be established to decide all transfers, postings and promotions of
officers. Director General of Police and Inspector General of Police should have a minimum
tenure of 2 years.
A Rape Crisis Cell should be set up. The Cell should be immediately notified when an
FIR in relation to sexual assault is made. The Cell must provide legal assistance to the
All police stations should have CCTVs at the entrance and in the questioning room.
A complainant should be able to file FIRs online.
Police officers should be duty bound to assist victims of sexual offences irrespective
of the crimes jurisdiction.
Members of the public who help the victims should not be treated as wrong doers.
The police should be trained to deal with sexual offences appropriately.
Number of police personnel should be increased. Community policing should be
developed by providing training to volunteers.
ELECTORAL REFORMS: The Committee recommended the amendment of the
Representation of People Act, 1951. Currently, the Act provides for disqualification of
candidates for crimes related to terrorism, untouchability, secularism, fairness of elections,
sati and dowry. The Committee was of the opinion that filing of charge sheet and cognizance
by the Court was sufficient for disqualification of a candidate under the Act. It further
recommended that candidates should be disqualified for committing sexual offences.
EDUCATION REFORMS: The Committee has recommended that childrens
experiences should not be gendered. It has recommended that sexuality education should be
imparted to children. Adult literacy programs are necessary for gender empowerment.


The Criminal Law (Amendment) Bill, 2012: AN OVERVIEW

The Criminal Laws (Amendment) Bill, 2012 was introduced in the Lok Sabha on
December 4, 2012 by the Minister of Home Affairs, Mr. Sushil Kumar Shinde. The Bill seeks
to amend the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedures, 1973
(CrPC), and the Evidence Act, 1872.
The Bill introduces three new offences under the IPC. First, it penalises public
servants who knowingly disobey an order that prohibits them from conducting
investigation or requiring the attendance of a person for the purpose of the
investigation. The Bill provides a punishment of imprisonment for up to one year and
a fine.
Second, the Bill introduces an offence related to acid attacks. It penalises the act of
intentionally causing damage to the body of a person, or burning or maiming a person

by throwing acid with imprisonment for minimum of 10 years that may extend up to
life imprisonment and a fine of Rs 10 Lakhs. It penalises the attempt to cause harm by
throwing acid with minimum of five and maximum of seven years of imprisonment.
Third, the Bill replaces the existing offence of rape with that of sexual assault. Under
the Indian Penal Code, rape is defined as sexual intercourse with a woman without
her consent.
The Bill seeks to criminalise the following acts when committed without the consent
of the other person:
penetration of a persons vagina, anus, urethra or mouth with any part of the body
including the penis, or any other object for a sexual purpose;
manipulation of a body part of another person so as to cause penetration of the vagina,
anus, urethra or mouth by any part of the other persons body;
cunnilingus and fellatio.
The IPC provides a punishment of minimum of seven years and a maximum of life
imprisonment and a fine for the offence of rape. It allows the court to impose a lower
sentence. The Bill retains the punishment specified but takes away the power of the
court to lower the sentence.
The Bill increases the age of consent from 16 years to 18 years. It penalises the
commission of the above mentioned acts if the person is below 18 years of age,
irrespective of whether the acts were committed with consent. Under the Indian Penal
Code, sexual intercourse by a man with his wife who is more than 12 years old but
below 15 years of age was punishable with 2 years imprisonment. For sexual assault
by a husband upon his wife below 16 years of age, the Bill provides a punishment of a
minimum of seven years and a maximum of life imprisonment.
Under the Indian Penal Code, there is an exception to the offence of rape when sexual
intercourse is committed without the consent of the wife if she is above 15 years of
age. The Bill increases this age to 16 years.
Under the Indian Penal Code, rape by a husband of his a wife during judicial
separation is punishable with maximum two years imprisonment and fine. The
offence is non-cognizable and bailable. The Bill provides a punishment of up to seven
years and fine for sexual assault during judicial separation. It also changes the nature
of the offence to a cognizable and non-bailable offence.

The Indian Penal Code provides a punishment of up to five years for public servants
who engage in sexual intercourse with woman in his custody. The Bill increases the
punishment to a minimum of five and a maximum of 10 years.
The Bill seeks to amend the Indian Evidence Act to provide that in case it is proved
that there was sexual intercourse between the accused and the victim in the accuseds
custody; it would be presumed that it was without her consent. It also states that
evidence of the victim or of his or her previous sexual experience shall not be relevant
on the issue of consent or the quality of consent.
The Bill also increases the punishment for use of criminal force to outrage the
modesty of a woman from up to two years with fine to up to five years with fine.
The Bill amends the CrPC to require that a woman police officer records evidence if
evidence is being given by a woman who is a victim of sexual assault or assault to
outrage her modesty.
The CrPC requires that all evidence in the course of trial be taken in the presence of
the accused. The Bill seeks to create an exception for evidence of a victim of sexual
assault who is below 18 years of age. It allows the court to take appropriate measures
to ensure that the victim is not confronted with the accused.
The Criminal Law (Amendment) Ordinance, 2013: AN OVERVIEW
The Criminal Law (Amendment) Ordinance, 2013 was promulgated by
the Honble President of India, Shri Pranab Mukherjee, on 3 February 2013, in light of the
protests in the 2012 Delhi gang rape case. The said Ordinance was promulgated to amend the
Indian Penal Code, the Code of Criminal Procedure, and the Evidence Act.


amendments proposed seek to replace the offence of rape with sexual assault which has a
wider definition.
The Ordinance protects the victim by penalising public servants who fail to record
FIRs relating to sexual offences. They also require the victims to be provided with
legal and medical assistance.
The Ordinance provides for other new offences as well, such as stalking, voyeurism,
assault to disrobe a woman and sexual harassment.

The Ordinance prescribes higher punishments for sexual assault resulting in death or
persistent vegetative state, gang sexual assault and repeat offenders.
The Ordinance increases the punishment for sexual assault upon a judicially separated
wife. The Ordinance requires the court to be prima facie satisfied of the offence
before it takes cognizance.
The Ordinance increase the consent age from 16 to 18 years.
The Ordinance requires certain steps to be taken when the statement of a victimised
woman or a differently-abled person is being recorded in sexual offence cases. These
(a) that the statements should be recorded at a place of the victims choice;
(b) that the victim should be provided with assistance from lawyers, health
care workers or womens organizations.
Furthermore, statements of physically or mentally disabled victims would have
to be video-graphed and the victims have to be provided with special educators.
Under both, the Bill and the Ordinance, the Court may take steps to ensure that
victims of sexual offences, who are minors, should not be confronted by the accused
at the time of taking the victims evidence.
Under the said Ordinance, men below 18 years and above 65 years of age, and
women, are be required to attend as witnesses at any place other than the persons
residence. Prior to the Ordinance, apart from women, this provision only applied to
men below 15 years of age.
The Ordinance provide that the persons previous sexual experience would not be
relevant while determining whether there was consent with respect to offences related
to sexual assault, sexual harassment and assault to outrage the modesty of a woman.

Key Issues and Analysis

Under the Ordinance, penalties for certain offences are inconsistent. For instance,
minimum punishment for gang assault by private persons is 20 years, and for gang
assault by a police officer is 10 years.

The Ordinance penalises certain acts which are also punishable under special laws
such as SC/ST (Prevention of Atrocities) Act, 1989. Punishments under the
Ordinance are higher than under these laws.
The Ordinance specifies the same punishment for penetrative and non-penetrative
sexual assault. It does not provide a gradation of penalties on the basis of the gravity
of the offence.
The Ordinance exempts un-consented penetration or touching of private parts for
medical purposes from punishment.
Age of consent has been increased from 16 to 18 years. There is a divergent view
among various commissions on the age of consent.
Marital sexual assault upon a woman is not an offence. This is at variance with the
recommendation of certain commissions.

The Criminal Law (Amendment) Act, 2013: AN OVERVIEW

Every morning has a new beginning, or so it is said, and the Nirbhaya tragedy had
its own new beginning. The barbaric incident was followed by the constitution of the J.S.
Verma Committee to look into the adequacy of legislations that afford protection to women,
against sexual offences in India. The Committee recommended inter alia a several significant
amendment to the Indian Penal Code, 1860, which was first brought about vide Presidential
Ordinance dated February 3, 2013. The said Ordinance was subsequently raised as a Bill in
Parliament during the Budget Session and was passed as an Act on April 2, 2013. The Act,
commonly known as the Criminal Law (Amendment) Act, 2013, has brought
about several significant changes to the Indian Penal Code, 1860 and the Code of Criminal
Procedure, 1973.

Following are the provisions of law

That has been inserted vide
The Criminal Law (Amendment) Act, 2013
Acid Attack (Sec 326A)

Section 326A has been added to the Indian Penal Code as often the cases of throwing
acid on faces of woman have surfaced. Beauty of face is a feature often primarily associated
with females in chauvinistic male society. As such where a perpetrator wants to do damage to
a female, he often prefers throwing acid on her face so as to destroy her beauty, regardless of
any intentions. To curb such a horrifying menace, this crime has been added specifically in
clear words under Indian Penal Code with punishment of either description of not less than
10 years which may extend to life imprisonment along with fine.
Sexual Harassment (Sec 354A)
Sexual harassment may be defined as sexual misconduct by dominant (i.e., superior
officers etc.) irrespective of the subserviants knowledge or any loss or adverse effect for
refusing a superiors unwelcome advance9. As early as 1993 at the International Labour
Organization seminar held at Manila, it was recognized that a sexual harassment of women
at workplace was a form of gender discrimination against women 10. In case of Vishaka v.
State of Rajasthan11, Supreme Court held that sexual harassment includes behaviour
(whether directly or by implication) as:
a) Physical contact and advances;
b) A demand or request for sexual favours;
c) Sexually coloured remarks; etc.
The Parliament enacted Sec. 354A in Amendment Act, 2013 giving effect to the above
guidelines and by also not limiting offence at offices or workplaces but everywhere. In spite
of such a brilliant legislative action, this section is not immune from anomalies as follows:
9 Burlington Industries v. Ellerth 524 U.S. 742 (1998); and Furgagher v. City of Boca Raton 524 U.S.
775 (1998)
10 Apparel Export promotion Council v. A.K. Chopra, AIR 1999 SC 625
11 AIR 1997 SC 3011,para 16


Sec 354A (i) vis-a-vis Sec 354

The offences of under Ss. 354A (1) and 354 both require physical contact at the hands
of the perpetrator. As such there is a lacuna when it comes to differentiating the types
or forms of physical contact amounting to sexual harassment and outraging the
modesty of woman.


Sec 354A (iv) vis-a-vis Sec 509

The offence of making sexually coloured remarks was already being dealt u/s. 509.
Again the sub-clause Sec 354A (iv) imposes same degree of punishment as Sec 509.
Thus the need to make this change and the intention of the legislature is very unclear.

Disrobing a Woman (Sec 354B)

Parliament made an amendment to Indian Penal Code, adding Sec 354B, to create a
new offence namely, Assault or use of criminal force to woman with intent to disrobe. The
offence was made gender specific in backdrop of Delhi Bus Gang Rape. Hailed by many
legal scholars there is also a different story which remained unnoticed. The offence of
disrobing should also be extended to men because unfortunately the young boy, who was
with the girl and sole eye witness of the incident, was also assaulted and disrobed 12 and as
far as the victims are considered it should be made gender-neutral. The Sec. 355 has not
sufficed in protecting male victims. The male accompanying the rape victim in the above
mentioned event also suffered tortures and inhumane treatment at the hand of perpetrators.
Voyeurism (Sec 354C)
Voyeurism has surfaced in recent times with the advent of internet and social media
sites. The Parliament by enacting Amendment Bill, 2013 has made it punishable under Sec
354C of Indian Penal Code. Indian Parliament made Voyeurism gender specific, meaning
12 SHOK SHARMA, Delhi Gang-Rape Victims Boyfriend Speaks Out ( 2013)
accessed 21 April 2014

that only a male could commit such a crime against a woman. This is very injudicious as
there are often cases where women are also involved in commission of offence. The
character Simi Roy (played by the actress Amrita Singh, Bollywood, dir. Mohit Suri) in
movie Kalyug, is an apt description of the offence in the society.
Apart from this while dealing with offence of Voyeurism in Sec 354C, there is another
anomaly related to its applicability. The section on voyeurism starts with Any Man,
making it clear that only man can be perpetrators, followed by the phrase by any other
person at behest of the perpetratorsraising series of doubts. The doubt as to whether the
phrase by any other person should be read in the light of any man, meaning thereby that
second person could only be a man, or in the light of Sec 11 which define Person. The
court, most likely, would adopt the latter approach which will highlight another lacuna in
Amendment Act, 2013. A woman as perpetrator will not be liable under this offence however
a woman at the behest of actual perpetrator would be liable. This is approach is not only
unjust but also unreasonable.

Stalking (Sec 354D)

Stalking is a term commonly used to refer to unwanted or obsessive attention by an
individual or group toward another person. Section 354D of the Ordinance of 2013, was
highly inspired from the definition of Stalking in Sec 2A of the Protection from
Harassment Act, 1997 passed by British Parliament on 25 th November 2012. The offence is
punishable with imprisonment, along with fine, for a term which may extend to 3 years, on
first conviction, and for a term which may extend to 5 years for subsequent conviction. As
per the definition in Sec 354D the offence was gender-neutral offence, making the crime of
stalking punishable for both the gender whether male or female. Surprisingly, the
Amendment Act of 2013 changed Whosoever to Any Man making the offence of Stalking
a gender-specific offence. In the present era, it is highly orthodox and immature to say that a
victim of stalking could only be a woman and culprit a man, vice-versa is also possible and

has there have been instances worth reporting. 13 Under the Act, the offence is limited to the
physical act of following or contacting a person, provided that there has been a clear sign of
disinterest, or to monitoring the use by a woman of the internet, email or any other forms of
electronic communication.
Rape is Redefined as Sexual Assault
Rape is one of the most horrific events any women could experience. Justice
Krishna Iyer in the case of Rafiq vs State Of U.P14 made a remark that, a murderer kills
the body, but a rapist kills the soul. Taking a serious note of the inadequacy of the law of
the rape manifested in a number of judgements, the Parliament from time to time has made
an amendment with laws related to rape, including both procedural and substantive. The
Parliament by means of Amendment Act, 2013 has enlarged the ambit of rape by making
certain non-penetrative act as offence amounting to rape. The Amendment Act, 2013
repealed the Ordinance (Amendment) Act, 2013 which was having wider ambit, thereby
raising serious questions regarding the lacunas or loopholes that the judiciary could
confront in future.
Earlier the offence of rape, i.e. sexual assault was a gender neutral offence, while
now this offence is women centric. Only a man is assumed to be capable of committing such
offence and that too against a woman only. The aspect of gender neutrality was required in
following aspects:
Neutrality with respect to the victim

13 TNN, Much talking on stalking, but what does it all mean? ( 2013) accessed
21 April 2014

14 1981 AIR 559


Often the members of the marginalised sex like Transgender are also victim of this
offence and as such they cannot claim any protection because the crime of rape is not gender
Neutrality with respect to the perpetrator
During the war in Iraq it surfaced that many women officers also involved themselves
in torturing the prisoners by variant sexual assaults 16. This strengthened the assumption that
even women can be perpetrator of such crimes. There are two occasions when the need for
gender neutrality arises even in India. Firstly, when during some communal or casteist
violence a women is found to be participus criminus. Secondly, when a transgender person
is an offender. The recent case of Pinki Pramanik, where her partner filed a case of rape
against her. This case shows the very real possibility of female to male transgender persons
or male to female transgender persons (either pre- or post- transition) causing sexual assault
on a woman17.

Rape of Married woman

The absence of law on marital rape (sexual assault), would also fail the objective of
this bill as married women cannot be protected. The law u/s. 376-A and exception u/s. 375
should be deleted equate marital rape and sexual assault. As the s. 3 of DVA18 is only
applicable in grave life threatening scenario the need for consent of woman isnt important
15 Upendra Baxi, Human Rights Violations against the Transgender Community (Peoples Union for
Civil Liberties, Karnataka (PUCL-K) 2003) <
%20Report.html> accessed 21 April 2014
16 Seymour M. Hersh, Torture At Abu Gharib ( 2004)
<> accessed 21 April 2014
17 Arvind Narrain , The Criminal Law ( Amendment) Bill 2012: Sexual Assault as a Gender Neutral
Offence (Economic and Political Weekly 2012) <> accessed 21 April 2014

leaving her as an object of sex. The law u/s. 122 of the Indian Evidence Act prevents
communication during marriage from being disclosed in court except when a spouse is being
persecuted for an offence against the other. Since, marital rape is not an offence, the evidence
is inadmissible, although relevant, unless it is a prosecution for battery, or some related
physical or mental abuse under the provision of cruelty19.
Compensation u/s 357 Of Cr.PC
This section has been provided in Cr.P.C., wherein the Court levies fine over the convicts,
it can also grant certain portion of fine or full compensation to the victim. As far as the new
law is concerned:

State government to provide for compensation to the victim, besides the

compensation being given by Court through fine against the convict.


The hospitals (government/private) shall provide immediate assistance to the victim

in cases of rape, free of cost and inform the police about the offence.
However we need to understand that this form of compensation is only limited to Gang

Rape and Acid attack cases. The other rape cases have been neglected without any justified
rationale at the mercy of the court to provide fine. Fine levied by the Courts is discretionary
and as per latest judgement of Supreme Court, the right of victim is only limited to the extent
that Courts may discuss the question of compensation to the victim in form of fine. If court is
not satisfied to grant fine they have to give reasons in recording but in no way they are bound
to give compensation from the Fines.
Table 1: Comparative Analysis Between provisions of
18 Domestic Violence Act, 2005
19 Priyanka Rath, Marital Rape and the Indian legal scenario (India Law Journal )
<> accessed 21 April 2014



Table 1: Comparison between provisions of the IPC, Bill and the Ordinance
CODE, 1860
BILL, 2012
Knowingly disobeying
Also penalises failure to
laws relating to
Disobedience of
record information in
No specific
investigation is
law by a public
sexual offence cases of
punishable with
sexual assault and
imprisonment for one
year and/or fine.
penetration of the
mouth, anus, urethra or Same as the provisions
Meaning of sexual Un-consented
vagina with the penis
of the Bill. Also includes
assault (SA) or
penetration of the
or other object; unun-consented touching of
vagina by the penis.
consented oral sex; the private parts.
offence is gender
Sexual act between Same as the IPC. The
a man and his wife
age of consent for the
if: (a) she is over 15 wife is increased to 16
Exception to SA
Same as the provisions
years old; and (b)
or rape
of the Bill.
the wife is not
Un-consented acts for
judicially separated medical or hygienic
from the man.
Age of consent
16 years.
18 years.
18 years.
No bar on evidence
Relevance of
of immoral
Bars use of previous
character of
character of a
conduct or character of Same as the provisions
victim to prove
victim to prove
the victim to prove
of the Bill.
consent in a rape
Is not an offence if
Not an offence against Same as the provisions
Marital SA/ rape
the wife is over 15
a wife over 16 years.
of the Bill.
years of age.
7 years to life
Punishment for
7 years to life
Same as the provisions
imprisonment and
SA/ rape
imprisonment and fine. of the Bill.
Punishment for
10 years to life
10 years to life
10 or 20 years to life

gang rape

SA/Rape upon
separated wife

SA/ Rape by
armed personnel

SA resulting in
death or
vegetative state


Verbal SA

imprisonment and

Maximum 2 years

No specific
provision. Public
servant includes
armed personnel.
Punishment: 10
years to life
imprisonment and
No specific
provision. Rape and
murder dealt with
as two separate

Outraging a
womans modesty.
imprisonment for
maximum 2 years
and fine.

imprisonment and fine. imprisonment.

Punishable with 2 to 7
years imprisonment.

Punishable with 2 to 7
years imprisonment.
Courts to take
cognizance if there is
prima facie evidence of

Same as under the


Specific offence. SA by
armed personnel within
the area they are
deployed in. Penalty
remains same.
Requirement for sanction
not removed.

Same as under the


Specific offence.
Punishment 20 years to
life imprisonment or

No specific provision.

Use of words or
No specific provision.
gestures to insult a
womans modesty.
Punishment: 1 years


Outraging a womans
modesty:1 to 5 years
imprisonment and fine.
Physical contact
involving unwelcome
and explicit sexual
overtures: up to 5 years
imprisonment and or
Touching of private
parts: 7 years to life
Demand/ request for
sexual favours: up to 5
years imprisonment.
Verbally outraging
modesty: up to 3 years

and/or fine.

repeat SA

No specific
provision for this

Same as under the


Sexually coloured
remarks, forcible show
of pornography: up to 1
Specific offence. Life
imprisonment or death,
except SA by a man on
his judicially separated

Outraging a
womans modesty.
Specific offence.
Assault to disrobe Punishment:
No specific provision. Punishable with 3 to 7
a woman
imprisonment for
years imprisonment.
maximum 2 years
and fine.
No specific
Specific offence.
Same as under the
provision for this
Punishable with 1 to 3
years imprisonment.
No specific
Specific offence.
Same as under the
provision for this
Punishable with 1 to 3
years imprisonment.
No specific
Specific offence.
provision. Covered
Punishment: 7 to 10
under grievous hurt.
Same as provisions of
Acid attack
years imprisonment
Punishment: up to 7
the Bill.
and up to10 lakh fine
as compensation.
Covered under
Also penalises
slavery, abduction
recruitment, transfer,
and kidnapping for
transport, harbouring a
purposes of
person for the purpose of
prostitution. Also
Same as under the
prostitution, forced
provided for under
labour, organ removal by
the Immoral
use of threats or
inducement. Punishment:
Prevention Act,
7 to 10 years
Table 2: Comparative Analysis of provisions Relating to Similar
Offences Under

Table 2: Comparison of provisions relating to similar offences

Gang sexual assault by a
20 years to life imprisonment and
Sec. 376D
private person
Gang sexual assault by a Explanation 2, Sec.
10 years to life imprisonment and
public servant
Touching by use of



criminal force to outrage

Sec. 354

1 to 5 years imprisonment and fine.

the modesty of a woman

Unwelcome physical
contact as sexual
Verbally outraging a
womans modesty
Making sexually
coloured remarks

Up to 5 years imprisonment and/or

Sec. 354A


Sec. 509

Up to 3 years imprisonment and fine.

Up to 1 year imprisonment and/or

Sec. 354A

Up to 5 years imprisonment and/or

Demanding sexual favour Sec. 354A


Sources: Criminal Law (Amendment) Ordinance, 2013

Table 3: Comparative Analysis of Offences Punishable Under

and Other Laws


Table 3: Comparison of offences and punishments under the Ordinance and other laws
PCSO ACT, 2012
Age of consent
Sexual assault excluding
Touching of private parts
Touching by a public
Gang assault of touching

18 years. No reduction

18 years. In marriage 16 years

within marriage.
7 years to life

for girls.

3 to 5 years imprisonment.

10 years to life imprisonment.

10 years to life imprisonment.

5 to 7 years imprisonment.

10 years to life imprisonment.

5 to 7 years imprisonment.
Protects both boys and girls.

20 years to life imprisonment.

Punishment: 5 to 7 years
Forcing a child to strip or


parade naked in public

Up to 3 years for making a

Protects women. Punishment

child exhibit any part of his

body with a sexual intent.

Protects both men and

Only protects women.

Capturing the image of

women. Punishment: up to 3 Punishment: 1 to 3 years

private parts

years and/or fine up to Rs 2

imprisonment and fine. Second


offence with 3 to 7 years .



Protects both men and
women. Offence need not


take place at public place.

Punishment: 6 months to 5


Only protects women.

Punishable when committed at
public place. Punishment: 3 to 7

Sources: Protection of Children from Sexual Offences Act, 2012; Information Technology Act, 2000, Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Criminal Law (Amendment) Ordinance,

Table 4: Analysis of Age of Consent As Per Different

Table 4: Age of consent as per different commissions
LCR 84th, 1980


LCR 156th, 1997


LCR 172nd, 2000

NCW, 2006


As marriage of a girl below 18
is prohibited, sexual intercourse
should also be prohibited.
As age for kidnapping was
increased from 16 - 18 years.
Consented activity is exempt if


victim is 16-18 years old and

accused 5 years older than
Consented sexual activity with
Verma, 2013


persons above 16 years should

not be penalised.

Sources: Law Commission Reports; NCWs draft Indian Penal Code Bill, 2006; Report of the Verma Committee to
Amend Criminal Laws, 2013.

Table 5: Comparative Analysis of Age of Consent In

Different Countries
Table 5: Comparison of age of consent in different countries and the defence of low age

Age of Consent






Exemption in case of low age

difference when acts are
If the accused is not more than 2
years older than a complainant of
12 to 14 years; If the accused is
not more than 5 years older than
a complainant of 14 to 16 years.
If the victim is 13 to 16 years old
and the accused is less than 18,
and the accused is mistaken







about the age of the victim, there

is a defence.
37 states provide an age of
consent of 16 years; 6 states have
an age of consent of 17 years; 8
provide an age of consent of 18
years. Age gap exemption ranges
from 2 to 5 years.
If there is no great age difference
between complainant and the
In four states consensual sexual
intercourse is not punishable if
both parties are below the
consent age.

Sources: Canadian Criminal Code, 1985; Sexual Offences Act, 2003; Criminal Code of Finland, 1996; Statutory Rape, ASPE,
Department of Health and Human Services, United States of America, 2004; Australian State Laws.



Chapter 14 (Sexual Offenses) of the 2004 Penal Code of Bhutan outlaws rape and
other sexual offenses.20 Under the criminal code, there are several categories of rape, which
are punished differently, depending on factors such as the age of the victim, the relationship
between the victim and the perpetrator, the number of participants (gang rape), whether the


victim was pregnant, whether injury occurred. Marital rape is also recognized as an offense
under the 2004 Laws, being classified as a petty misdemeanour. The most serious form of
rape is Gang rape of a child below twelve years of age, classified as a felony of the first
177. A defendant shall be guilty of the offence of rape, if the defendant has
sexual intercourse with another person:
(a) Without the persons consent or with consent, when consent is obtained by
putting the person or a third person in fear of death or of grievous hurt;
(b) Compels the other person to submit to sexual intercourse by force, or by
threat of imminent death, bodily injury or serious bodily injury or the
commission of a felony to that person or a third person;
(c) Substantially impairs the other persons ability to appraise or control the
conduct by administering drugs, intoxicants, or other substances without
consent for the purpose of preventing the persons resistance to the sexual
intercourse, or
(d) Renders the other person unconscious for the purpose of committing
sexual intercourse
The most serious sexual offense is gang rape of a child under 12.
191. A defendant shall be guilty of the offence of gang rape of a child below
the age of twelve years, when two or more persons engage in a sexual
intercourse with a child below the age of twelve years.
Grading of Gang rape of a child below twelve years of age


192. The offence of gang rape of a child below twelve years of age shall be a
felony of the first degree
Marital rape
199. A defendant shall be guilty of marital rape, if the defendant engages in
sexual intercourse with one's own spouse without consent or against the will
of the other spouse.
Grading of Marital rape
200. The offence of marital rape shall be a petty misdemeanour.

The word rape is not used in the Canadian Criminal Code. Instead the law
criminalizes "sexual assault". Sexual assault is defined as sexual contact with another person
without that other person's consent. Consent is defined in section 273.1(1) as "the voluntary
agreement of the complainant to engage in the sexual activity in question".
Section 265 of the Criminal Code of Canada defines the offenses of assault and sexual
Section 271 criminalizes "Sexual assault", section 272 criminalizes "Sexual assault
with a weapon, threats to a third party or causing bodily harm" and section 273 criminalizes
"Aggravated sexual assault".


South Africa
The Criminal Law (Sexual Offences and Related Matters) Amendment Act created
the offence of sexual assault, replacing a common-law offence of indecent assault. "Sexual
assault" is defined as the unlawful and intentional sexual violation of another person without
their consent. The Act's definition of "sexual violation" incorporates a number of sexual acts,
including any genital contact that does not amount to penetration as well as any contact with
the mouth designed to cause sexual arousal. Non-consensual acts that involve actual
penetration are rape rather than sexual assault.
Unlawfully and intentionally inspiring the belief in another person that they will be
sexually violated also amounts to sexual assault. The Act also created the offences of
"compelled sexual assault", when a person forces a second person to commit an act of sexual
violation with a third person; and "compelled self-sexual assault", when a person forces
another person to masturbate or commit various other sexual acts on himself or herself. 21

United Kingdom (England and Wales)

Sexual assault is a statutory offence in England and Wales. It is created by section 3 of
the Sexual Offences Act 2003 which defines "sexual assault" as when a person
(A)intentionally touches another person
(B) the touching is sexual,
B does not consent to the touching, and
A does not reasonably believe that B consents.
Whether a belief is reasonable is to be determined having regard to all the
circumstances, including any steps A has taken to ascertain whether B consents.
21 Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007, sections 17

Sections 75 and 76 apply to an offence under this section.

A person guilty of an offence under this section is liable
1. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine
not exceeding the statutory maximum or both;
2. on conviction on indictment, to imprisonment for a term not exceeding 10 years.22

Northern Ireland
Sexual assault is a statutory offence. It is created by article 7 of the Sexual Offences
(Northern Ireland) Order 2008. Sexual assault is defined as follows:23
Sexual assault
(1) A person (A) commits an offence if
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.

Sexual assault is a statutory offence. It is created by section 3 of the Sexual Offences
(Scotland) Act 2009. Sexual assault is defined as follows:24

22 "Sexual
Offences Act
<> Retrieved 2014-04-22



23 "The Sexual Offences (Northern Ireland) Order 2008". 2011-05-26. Retrieved


(1) If a person (A)

(a) without another person (B) consenting, and
(b) without any reasonable belief that B consents,
does any of the things mentioned in subsection (2), then A commits an offence,
to be known as the offence of sexual assault.
(2) Those things are, that A
(a) penetrates sexually, by any means and to any extent, either intending to do
so or reckless as to whether there is penetration, the vagina, anus or mouth of
(b) intentionally or recklessly touches B sexually,
(c) engages in any other form of sexual activity in which A, intentionally or
recklessly, has physical contact (whether bodily contact or contact by means
of an implement and whether or not through clothing) with B,
(d) intentionally or recklessly ejaculates semen onto B,
(e) intentionally or recklessly emits urine or saliva onto B sexually.

United States (Texas)

Penal Code, Sec. 22.011. (a) creates the offence of sexual assault. It reads:
(a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by
any means, without that person's consent;

24 "Sexual Offences (Scotland) Act 2009". 2011-05-26. Retrieved 2014-04-22


(B) causes the penetration of the mouth of another person by the sexual organ
of the actor, without that person's consent; or
(C) causes the sexual organ of another person, without that person's consent,
to contact or penetrate the mouth, anus, or sexual organ of another person,
including the actor; or
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any
(B) causes the penetration of the mouth of a child by the sexual organ of the
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus,
or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of
another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another
person, including the actor.25

The French Penal Code defines the term RAPE as:

Any act of sexual penetration, whatever its nature, committed against another person by
violence, constraint, threat or surprise, is rape. Rape is punished by a maximum of fifteen
years' criminal imprisonment.
Rape is punished by a maximum of twenty years' criminal imprisonment in certain
aggravating factors (including victim under age of 15).



Rape is punished by a maximum of thirty years' criminal imprisonment where it

caused the death of the victim.
Rape is punished by a maximum of imprisonment for life when it is preceded,
accompanied or followed by torture or acts of barbarity.

The definition of the criminal offense of rape in Israel is as follows:26
Rape 345.(a)
If a person had intercourse with a woman
(1) without her freely given consent;
(2) with the woman's consent, which was obtained by deceit in respect of the identity
of the person or the nature of the act;
(3) when the woman is a minor below age 14, even with her consent;
(4) by exploiting the woman's state of unconsciousness or other condition that
prevents her from giving her free consent;
(5) by exploiting the fact that she is mentally ill or deficient, if because of her illness
or mental deficiencyher consent to intercourse did not constitute free consent;
then he committed rape and is liable to sixteen years imprisonment.

Rape is defined as follows:27

26 briberyconvention/43289694.pdf

Art. 190
Any person who forces a person of the female sex by threats or violence, psychological
pressure or by being made incapable of resistance to submit to sexual intercourse is liable to
a custodial sentence of from one to ten years.
Marital rape was made illegal in 1992, and since 2004 marital rape is prosecutable exofficio (meaning it can be prosecuted even if the wife doesn't complain). 28



National Crime Records Bureau data shows rape cases in India have taken a flight
from 2,487 in 1997 to 24,206 in 2011 i.e., an increase of 87.3% has been observed in the past
fourteen years. 29According to the statistic, National crime records bureau in Delhi 1,121
rape cases got registered in the first eight months of the year 2013 (i.e.: January to July,
2013). This is the highest in last 13 years. It means according to NCRB data in every 29
second five people was raped. However these are only the registered case but there also
exists many unregistered cases which remained untouched of any official stats. The rise of

29 Times of India Kolkata 2013 May 19; 1 (Col. 3)

rape and other sexual offence can be attributed to the fact that youth comprises 31.5% of
Indias population (NSS).
The millennial generation is one of the biggest generations in numbers and by 2020
its number will represent, 1 out of every 3 adults 30. India is a Country with high
unemployment, poverty and illiteracy among young and growing population. This makes an
ideal condition for crime against woman. Stricter laws are drafted with an aim to act as
deterrent against sexual crimes. Law of rape had been amended earlier also. By the Criminal
Law Amendment Act, 1983, Sec. 375 and 376 of IPC has been substituted. 31 Under Sec. 375
I.P.C., rape had four Clauses, pre 1983 but following amendment it now has six descriptions.
Also Sec 376 of the IPC spells out the punishments which were added after the changes done
in Sec. 375 I.P.C. This was the requirement then in 1983 because of the famous Mathura
Case32, which introduced new offence (Custodial Rape) and enhanced minimum punishment
of all categories of rape.33 An analysis of rape cases reported to the police shows that even as
the number of cases filed has increased over time, rising from 16,373 nationwide in 2002 to
24,923 last year, the number of convictions is flat-lining. In 2012, the conviction rate fell to
24.20% from 26.40% a year earlier. Between 2002 and 2011, the rate had hovered around the
26.5% mark. Rape accounted for 1% of all crime reported in India in 2012, while cruelty by
a husband or his relatives made up 4.5% of all crime in that year 34.
In 2012, there were 133,922 people waiting to be tried on rape charges at the start of
the year, including those whose trial was carried over from the previous year. Of those, 15%
30 Times of India, Kolkata 2013 April 15;1(Col. 2)
31 Karmakar RN. JB Mukherjees Forensic Medicine and Toxicology. 3rd ed. Kolkata: Academic publishers
32 Tukaram Vs State of Maharashtra AIR 1979 SC 185 : (1979) 2 SCC 143
33 Pillay VV. Text Book of Forensic Medicine and Toxicology. 16th ed. Hyderabad: Paras Medical Publisher; 2011.
p. 343.

34 Times of India Kolkata 2013 April 19; 1 (Col. 3)


were given a verdict by the end of the year, while 84% remained pending and the rest had
their cases withdrawn35.
In the 20,660 rape trials completed last year, just under a quarter of those charged, or
4,821 people, was convicted.36 There has been only one conviction out of over 600 cases of
rape reported to Delhi Police this year even as crime against women has been on the rise in
the national capital. 37
As many as 754 accused were arrested in the 635 cases reported to Delhi Police
between January and November, the highest in past five years, home ministry data said. Of
these total accused; only one was convicted while 403 were facing trials, investigations were
pending against 348 and two others were discharged. Delhi has reported 165 cases of eve
teasing last year and 126 in 2010 in which 172 and 116 accused were arrested respectively.38
An idea about magnitude of the crimes against women can be had from the all India
figures for 5 years i.e., from 2001 to 2005 published in the National Record Bureau given
below (Table 6). A total of 1, 55,553 crimes against women were reported in the country
during the year 2005 as compared to 1, 54, 333 during the year 2004 recording 1.7%
increase. These crimes have reported continual (regular) increase since 1996 when 1, 57, 723
crimes were reported signifying 24% increase.39

35 Times of India Kolkata 2013 May 19; 1 (Col. 3)

39 National Record Bureau, 2005

Madhya Pradesh during the year 2005 has reported the highest number of rape cases
2, 921 accounting to 15.9% of total such crimes in the country.40

Table 6: Crime Head-Wise Incidents of Crime Against









Rape ( 376, IPC)







Dowry Death































( 302/ 304B, IPC)


( 354, IPC)

Sexual Harassment (
509, IPC)

Importation of Girls
( 366B, IPC)

40 Textbook on The Indian Penal Code K.D. Gaur 4th Edn. 2009 p. 638
41 National Crime Record Bureau Web: Retrieved: 23/04/2014

Table 7: Crime Clock of Atrocities Committed Against Women42







29 Minutes


Sexual Harassment

53 Minutes



15 Minutes


Cruelty by husband or other relatives

09 Minutes


Dowry Deaths

77 Minutes

Table 8: Statistics of National Crime Record Bureau on crime Against


S. No


Crime cases against Women



















42 K.D. Gaur, Textbook on The Indian Penal Code (4th, Universal Law Publishing Co. Pvt. Ltd, Delhi
2011) p.g. 637

Table 9: Rape Victims Relationship to Perpetrators India43

(in number of cases)


Offenders known to the victims

Parents/ close family members






Rest other persons


Table 10: Age Wise Classification Of Rape Victims44





Upto 10















Above 50


43 Crime in India, 2012, National Crime Record Bureau, 31st July, 2012
44 Crime in India, 2011, National Crime Record Bureau, p. 226


Judicial Analysis
Since 1977, rape has been a major issue of concern for the women's groups and
human rights groups in India. Rape of a minor called Mathura, by two policemen in a police
station was reported in 1972 and her case was taken up by a human rights lawyer in three
courts including the Supreme Court of India.
The final judgement was that Mathura had a loose character and she was not
raped but that sexual intercourse took place after wilful consent. The resulting nationwide ant
i-rapecampaign in 1980 demanded amendments in the Rape Law and reopening of the
Mathura Rape case. In 1983, Indian parliament amended the existing law.
Sexual Offences constitute an altogether different kind of crime, which is the result
of a perverse mind. The perversity may result in rape or in homosexuality. Those who
commit such crimes are psychologically sadistic persons exhibiting that tendency in rape
forcibly committed by them. 45 The question of desirability of death sentence for rapists in the
context of demand by a large section of the people and womens organisation, in the wake of
increasing rape cases in the country, has been analyses in the light of the constitutional
provision under Article 21 i.e., Right to life and personal liberty, and the famous American
Cases of Ehrlich Anthony Coke46 and Patrick Kennedy47 in which the US
Supreme Court has turned down death sentence for a rapist on the ground that it violates the
prohibition against cruel and unusual punishment under Eight and Fourteenth amendment to
the US Constitution.

45 TK Gopal v. State of Karnataka (2000) 3 Supreme 706 (SC), AIR 2000 SC 16669
46 Ehrlich Anthony Coke v. State of Georgia 433 US 584 (1977), 53 L Ed 982, 97 S Cr 2861 (1977)
47 Patrick Kenneddy v. Lousiana 128 S. Cr 2641 (October 1, 2008)

In 1980, when the Supreme Court of India gave its verdict on the Mathura Rape Case,
there was a national outcry.48
Mathura, a teenage tribal girl was raped by two policemen, in the police station at
dead of night while her relatives were weeping and wailing outside the police-station. The
legal battle began when a woman lawyer took up her case immediately after the event in
1972. The Sessions Court blamed Mathura for being a woman of "an easy virtue", and the
two policemen were released. In the High Court Judgement, the accused were given seven
and half years imprisonment which was reverted by the judgement of the highest legal
authority-The Supreme Court of India. It held that Mathura had given a wilful consent as she
did not raise any alarm.49
The resulting nation-wide anti-rape campaign in 1980 demanded reopening of the
Mathura Rape Case and amendments in the Rape Law.50 Prominent lawyers took up the











of women were formed around this campaign. They organized public meetings and postercampaigns, performed skits and street-theatre, collected thousands of signatures in support of
their demands staged rallies and demonstrations, submitted petitions to MLAs and the Prime
Minister, and generally alerted the public to the treatment meted out to the rape victims. The
initiative came from the middle class, educated and urban women. Later on, the political
parties and the mass organisations also joined the bandwagon.
The sentencing order in the December 16 gang rape case (State v. Ram Singh
and Ors , SC No. 114/2013) highlights various problems with Indias death penalty
jurisprudence. In this piece, I make and substantiate this argument by first describing the
broad contours of, and debates within, Indias death penalty jurisprudence. Though
48 Vibhuti Patel: "Women's Liberation in India" , New Left Review, No. 153, 1985
49 Tukaram and Ganpat versus State of Maharashtra, 1979, Supreme Court of India, Delhi.
50Neera Desai and Vibhuti Patel: Indian Women-Change and Challenge in the International Decade,1975-85 ,
Sangam Publications, 1990


Bachan Singh v. State of Punjab 51 was neither the first nor the last case where
the constitutionality of the death penalty was challenged, it remains the controlling precedent
on the issue and is the starting point of this analysis.
To bring home charges of rape, it is necessary, to establish that sexual intercourse
was done by the man against the will or without the consent of the woman under the
circumstances enumerated under clauses firstly to seventhly of S. 375 IPC.
While distinguishing between the two expressions against the will and without the
consent under clause (i) and (ii) of S. 375 IPC, the Supreme Court of India in Deelip
Singh v. State of Bihar52 observed that:
....though will and consent often interlace and an act done against the will
of the person can be said to be an done without the consent, the Indian Penal
Code categorizes these two expressions under separate heads in order to
make it as comprehensive as possible.
The distinction between the two expressions was spelled out by the Supreme Court of
India in State of Uttar Pradesh v. Chhotey Lal53 , in the following words:
....But that as it may, in our view, clause Sixthly of S. 375 is not attracted
since prosecutrix has been found to be above 16 years. In the facts of the case
what is crucial to be considered is whether clause First or clause Secondly of
S. 375 IPC is attracted. The expressions against the will and without the
consent may overlap sometimes but surely the two expressions in clause First
and clause Secondly have different connotation and dimension. The
expression against the will would ordinarily mean that the intercourse was
done by a man with a woman despite her resistance and opposition. On the
51 AIR 1980 SC 898
52 (2005) 1 SCC 88, AIR 2005 SC 203
53 (2011) 2 SCC 550, AIR 2011 SC 697

other hand, the expression without the consent would comprehend an act of
reason accompanied by deliberation.

CASE HISTORY: The 2012 Delhi Gang Rape54

The 2012 Delhi gang rape case involved a rape and fatal assault that occurred on 16
December 2012 in Munirka, a neighbourhood in South Delhi, when a 23-year-old
female physiotherapy intern was beaten and gang raped in a private bus in which she was
travelling with a male friend.
There were six others in the bus, including the driver, all of whom raped the woman
and beat her friend. The woman died from her injuries thirteen days later while undergoing
emergency treatment in Singapore. The incident generated widespread national and
international coverage and was widely condemned, both in India and abroad. Subsequently,
public protests against the state and central governments for failing to provide adequate
security for women took place in New Delhi, where thousands of protesters clashed with
security forces. Similar protests took place in major cities throughout the country.
All the accused were arrested and charged with sexual assault and murder. One of the
accused, Ram Singh, died in police custody on 11 March 2013 in the Tihar Jail. According to
some published reports, the police say Ram Singh hanged himself, but defence lawyers and
his family suspect he was murdered. The rest of the accused went on trial in a fast-track
court; the prosecution finished presenting its evidence on 8 July 2013. The juvenile was
convicted of rape and murder and given the maximum sentence of three years' imprisonment
in a reform facility. On 10 September 2013, the four remaining adult defendants were found
guilty of rape and murder and three days later were sentenced to death by hanging. On 13
54 State v. Ram Singh and Ors , SC No. 114/2013

March 2014, Delhi High Court in the death reference case and hearing appeals against the
conviction by the lower Court upheld the guilty verdict and the death sentences.


Dec 16, 2012: Nirbhaya, a 23-year-old paramedic student, gang-raped and assaulted by six
men in a private bus and thrown out of the moving vehicle along with her male friend
Dec 17: Police identify four accused-Ram Singh, his brother Mukesh, Vinay Sharma and
Pawan Gupta
Dec 18: Ram Singh and three others arrested
Dec 20: Victim's friend testifies
Dec 21: Juvenile perpetrator nabbed from Anand Vihar bus terminal in Delhi
Dec 22: Sixth accused, Akshay Thakur, arrested in Aurangabad district of Bihar. Nirbhaya,
fighting for life in Safdarjung Hospital, records statement before SDM
Dec 26: Government decides to take her to Singapore's Mount Elizabeth Hospital following a
cardiac arrest
Dec 29: Nirbhaya dies in Singapore at 2.15am; police add murder charge in FIR
Jan 3, 2013: Police file charge sheet against five adult accused


Jan 7: Court orders in camera proceedings

Jan 17: Fast-track court starts proceedings
Feb 2: Frames charges against five adult accused
Mar 11: Ram Singh commits suicide in Tihar Jail
Mar 22: Delhi HC allows national media to report proceedings
Aug 22: Final arguments begin
Aug 31: Juvenile Justice Board sends juvenile accused to a home for 3 years
Sep 3: Fast-track court reserves order for September 10
Sep 10: Court holds the accused guilty of 13 offences including gang rape, unnatural
offence, murder, dacoity, conspiracy, kidnapping and destruction of evidence.
Sep 11: The quantum of sentence to the four convicts in the Delhi gang-rape case to be
announced on September 13, 2013
Sep 13: A special Delhi court on Friday awarded death sentence to all four convicts in the
December 16 gang-rape case. The court said the case falls under 'rarest of rare' category.

CASE HISTORY: The 2013 Mumbai gang rape

The 2013 Mumbai gang rape, also known as the Shakti Mills gang rape,55 refers to the
incident in which a photo-journalist, who was interning with an English magazine
in Mumbai, was gang-raped by five persons, including a juvenile, when she had gone to the
deserted Shakti Mills compound, near Mahalaxmi in South Mumbai, with her male colleague
on an assignment on 22 August 2013. The accused had tied up the victim's colleague with
55 Rebecca Samervel (2014-04-04). "Mumbai Shakti Mills rape cases: Death penalty for 3 repeat
offenders". The Times of India. TNN. Retrieved 2014-04-08.

belts and raped her. The accused took photos of the victim during the sexual assault, and
threatened to release them to social networks if she reported the rape. Later one more gang
rape case was reported against the accused. A 19-year-old call centre employee approached
the authorities after the photojournalists rape was reported, claiming that she too had been
gang raped by five men on 31 July 2013, three of whom were also allegedly involved in the
photojournalist gang rape case.
On 20 March 2014, a Mumbai sessions court convicted all five adult accused in both cases
on 13 counts. On 4 April 2014, the court awarded the death penalty to the three repeat
offenders in the photojournalist rape case. The other two convicts were awarded life
imprisonment. Two minors, one in each case, are currently being tried by the Juvenile Justice
Board separately. If convicted. the maximum punishment they can face under Indian law is
three years imprisonment, which includes time in custody.

CASE HISTORY: The Famous Vishaka Case56

The litigation resulted from a brutal gang rape of a publicly employed social worker
in a village in Rajasthan during the course of her employment. The petitioners bringing the
action were various social activists and non-governmental organisations. The primary basis
of bringing such an action to the Supreme Court in India was to find suitable methods for the
realisation of the true concept of gender equality in the workplace for women. In turn, the
prevention of sexual harassment of women would be addressed by applying the judicial
Under Article 32 of the Indian Constitution, an action was filed in order to establish
the enforcement of the fundamental rights relating to the women in the workplace. In
particular it sought to establish the enforcement of Articles 14, 15, 19(1)(g) and 21 of the
Constitution of India and Articles 11 and 24 of the Convention on the Elimination of All
Forms of Discrimination against Women.
56 Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241, AIR 1997 SC 3011, (1998) BHRC 261,
1997) 3 LRC 361, (1997) 2 CHRLD 202


In disposing of the writ petition with directions, it was held that: The fundamental
right to carry on any occupation, trade or profession depends on the availability of a safe
working environment. The right to life means life with dignity. The primary responsibility for
ensuring such safety and dignity through suitable legislation, and the creation of a
mechanism for its enforcement, belongs to the legislature and the executive. When, however,
instances of sexual harassment resulting in violations of Arts 14, 19 and 21 are brought under
Art 32, effective redress requires that some guidelines for the protection of these rights
should be laid down to fill the legislative vacuum. In light of these deliberations, the Court
outlined guidelines which were to be observed in order to enforce the rights of gender
equality and to prevent discrimination for women in the workplace. These guidelines
included the responsibility upon the employer to prevent or deter the commission of acts of
sexual harassment and to apply the appropriate settlement and resolutions and a definition of
sexual harassment which includes unwelcome sexually determined behaviour (whether
directly or by implication) such as:

physical contact and advances; a demand or request for sexual favours;

sexually-coloured remarks;
showing pornography;
any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

Furthermore the guidelines set out that persons in charge of a workplace in the public or
private sector would be responsible for taking the appropriate steps to prevent sexual
harassment by taking the appropriate steps, including:
The prohibition of sexual harassment should be published in the appropriate ways and
providing the appropriate penalties against the offender;
For private employees, the guidelines should be included in the relevant employment
Appropriate working conditions in order to provide environments for women that are
not hostile in order to establish reasonable grounds for discrimination;
The employer should ensure the protection of potential petitioners against
victimisation or discrimination during potential proceedings;


An appropriate complaints mechanism should be established in the workplace with

the appropriate redress mechanism;
Where sexual harassment occurs as a result of an act or omission by any third party or
outsider, the employer and person-in-charge will take all steps necessary and
reasonable to assist the affected person in terms of support and preventive action.
Finally, the court stated that the guidelines are to be treated as a declaration of law in
accordance with Article 141 of the Constitution until the enactment of appropriate legislation
and that the guidelines do not prejudice any rights available under the Protection of Human
Rights Act 1993.

CASE HISTORY: The Mathura Rape Case57

In March 1972, a 16-year-old tribal girl was raped by two policemen in the compound
of Desai Ganj police chowky in Chandrapur district of Maharashtra. Her relatives, who had
come to register a complaint, were patiently waiting outside even as this heinous act was
being perpetrated in the police station. When her relatives and the crowd threatened to burn
the police chowky down, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed
to file a panchnama. At the Sessions Court, Mathura was accused of being a "liar" and that
since she was "habituated to sexual intercourse", her consent was given. The Nagpur bench
of the Bombay High Court set aside the judgment holding that that passive submission due to
fear induced by serious threats could not be construed as willing sexual intercourse.
However, the decision of the Supreme Court remains a blot on its record to this day. The
rationale for acquittal was that Mathura had not raised an alarm and there were no visible
marks of injury on her body. The judgment did not distinguish between consent and forcible
The Mathura rape case galvanised the women's movement into asking for reforms of
the criminal law that dealt with rape. In 1983, the government passed the Criminal Law
Amendment Act. It amended Section 376 IPC and enhances the punishment of rape it also
57 TukaRam v. State of Maharashtra, AIR 1979 SC 185

provides enhanced punishment of minimum of 10 years of imprisonment for police officers

or staff of jail, the remand homes or other places of custody established by law. The Act
further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in
cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the
infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her
testimony without taking note of the fact that in India, unlike the occident a disclosure of the
girls identity, rehabilitation in society for all times to come and unless her story was painfully
true she would not have taken such a grave risk merely to malign the accused. The Act also
provides for trial in camera. It also inserts a new section in the IPC Sec 228(A), which makes
disclosure of the identity of the victims in These amendments were not enough to stem the
rise in the number of cases of sexual violence against women. One crucial defect in the law
was the definition of rape under Section 375 of the Indian Penal Code (IPC), which took into
account only penile-vaginal penetration. Other physical and mental injuries were left to be
dealt with under Sections 354 and 509 of the IPC as `outraging the modesty of a woman'.

In Mohd.Habib Vs State58, the Delhi High Court allowed a rapist to go scot-

free merely because there were no marks of injury on his penis- which the High Court
presumed was a indication of no resistance. The most important facts such as the age of the
victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on
her body were not considered by the High Court. Even the eye- witnesses who witnessed this
ghastly act, could not sway the High Court's judgment.
Whereas, in State of Punjab Vs. Gurmit Singh 59, the Supreme Court has
advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the
Court should not describe her to be of loose character.

58 1989 CriLJ 137, 1988 (2) Crimes 677, 35 (1988) DLT 170
59 1996 AIR 1393, 1996 SCC (2) 384

The Supreme Court has in the case of State of Maharashtra Vs.

Madhukar N. Mardikar60, held that

"the unchastity of a woman does not make her open to any and every person
to violate her person as and when he wishes. She is entitled to protect her
person if there is an attempt to violate her person against her wish. She is
equally entitled to the protection of law. Therefore merely because she is of
easy virtue, her evidence cannot be thrown overboard."
In Chairman, Railway Board Vs. Chandrima Das 61, a practicing Advocate of
the Calcutta High Court filed a petition under Article.226 of the Constitution of India against
the various railway authorities of the eastern railway claiming compensation for the victim
(Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the
railway security men. The High Court awarded Rs.10 lakhs as compensation.
The Supreme Court also held that the relief can be granted to the victim for two
reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional
provisions; and secondly, on the ground of Human Rights Jurisprudence based on the
Universal Declaration of Human Rights, 1948 which has international recognition as the
Moral Code of Conduct'- adopted by the General Assembly of the United Nation.
In view of the above, the Supreme Court has laid down the following guidelines for
the trial of rape cases:
1. The complaints of sexual assault cases should be provided with legal
representation. Such a person should be well acquainted.
2. Legal assistance should be provided at the police Station, since the victim may be
in a distressed state.
60 AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169
61 C.A. No. 639, of 2000

3. The police should be under a duty to inform the victim of her right to a counsel
before being interrogated.
4. A list of lawyers willing to act in these cases should be kept at the police station.
5. Advocates shall be appointed by the Court on an application by the police at the
earliest, but in order that the victim is not questioned without one, the Advocate shall
be authorized to act at the police Station before leave of the Court is sought or
6. In all rape trials, anonymity of the victim must be maintained
7. It is necessary to setup Criminal Injuries Compensation Board with regard to the
Directive Principles contained under Article. 38(1) of the Constitution of India. As
some victims also incur Substantial losses.
8. Compensation for the victims shall be awarded by the Court on the conviction of
the offender and by the Criminal Injuries Compensation Board- whether or not a
conviction has taken place. The Board will take into account pain, suffering, shock as
well as loss of earnings due to pregnancy and child birth if this accrued as a result of
In 1997, Sakshi, an organisation involved in issues on women and children,
approached the Supreme Court through a writ petition asking for directions concerning the
definition of rape in the IPC. Although the Supreme Court did not interpret the provisions of
Section 375 IPC to include all forms of penetration such as penile/vaginal penetration,
penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal
penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge
behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that
any alteration [in this case, of the definition of rape] would result in chaos and confusion; it
directed the Law Commission of India to respond to the issues raised in the petition. The
Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying
that the 156th Law Commission Report had dealt with these issues. The Supreme Court,

however, agreed with Sakshi that the 156th Report did not deal with the precise issues raised
in the writ petition. In August 1999, it directed the Law Commission to look into these issues
After detailed consultations with the organisations, the Law Commission released its
172nd Report on the Review of Rape Laws, in 2000. The Law Commission recommended
changing the focus from rape to `sexual assault', the definition of which goes beyond penile
penetration to include penetration by any part of the body and objects, taking into account
cunnilingus and fellatio.


The Criminal Law (Amendment) Act 2013 was definitely a historic step of amending
the Indian Penal Code (IPC) to provide for the new offences of rape causing death or a
vegetative state, sexual intercourse by a person in authority, gang rape and repeat offences.
Significantly, the Act also introduced several other grooming offences such as acid attacks
resulting in grievous hurt, sexual harassment, use of criminal force on a woman with intent
to disrobe, voyeurism and stalking. Apparently, the Act further amended the Indian Penal
Code to criminalise the failure of a public servant to obey directions under law. It has also
made the non-treatment of a rape victim by any public or private hospital an offence. While
these amendments to the Indian Penal Code constitute a major legislative stride forward,
corresponding steps forward have not been taken in the amendment of criminal procedure.
The Act amended the Code of Criminal Procedure (CrPC) to provide for a woman
officer to record evidence from a woman against whom certain offences have been
committed. If the victim of such offences has been mentally or physically disabled,
temporarily or permanently, then the woman officer must record the evidence at the victims
62 Sakshi v. Union of India AIR 2004 SC 3566, 2004 (2) ALD Cri 504

residence or the victims place of choice. These requirements apply to offences such as
causing voluntarily, grievous hurt by the use of acid, sexual harassment, assault or use of
criminal force against a woman with intent to disrobe, voyeurism, stalking, rape, gang rape,
sexual intercourse by a person in authority, and a word, gesture or act intended to insult the
modesty of a woman. The CrPC was further amended to provide for a court to ensure that
when the evidence of a victim of rape below 18 years has to be recorded, the accused does
not confront the victim. However, many procedural issues critical to making the criminal
justice system functional in the case of rape and serving as a deterrent against further crime
have not been addressed by the Act.

Areas to be looked into

The starting point is of course the registration of the FIR itself. The courts are divided
over whether the police have an obligation or not by law to investigate allegations of rape
before registering an FIR. If a police investigation has to take place before the registration of
an FIR, delays will inevitably occur and the failure to register FIRs in rape cases will
continue. Moreover, the Crime and Criminal Tracking Network and Systems (CCTNS), an
ambitious Rs.2,000 crore project of the Home Ministry, which would enable at least the efiling of FIRs, is expected to be implemented only in 2015.
The second procedural issue is fast track courts. Section 309 of the Criminal
Procedure Code (CrPC), as amended by the Act, provides that the trial of offences under
Section 376 (rape) and Sections 376A-D (covering punishment for causing death or resulting
in persistent vegetative state of the victim, sexual intercourse by husband upon his wife
during separation, sexual intercourse by a person in authority and gang rape) must be
completed within two months from the date of filing the charge sheet. However, the Delhi
rape case, prosecuted in a fast track court, has already taken over eight months. Therefore,
procedural rules must be examined including the grounds for an order of in

cameraproceedings. They are usually ordered only where a matter of national security is
involved or a party asserts that communications are privileged. In camera proceedings are
not ordered on the grounds that the accuseds safety is at risk as in the Delhi case. Indeed, the
courts order of in camera proceedings in this case has resulted in it being secluded from
media attention, thereby reducing public pressure for further reforms.
While the Act has made limited changes to criminal procedure, the police have been
left out of legislative reforms altogether. The only reforms were those announced by the then
Delhi Police Commissioner, Neeraj Kumar, on January 18, 2013, including that Zero First
Information Reports (FIR) may be registered on the basis of a womans statement at any
police station irrespective of jurisdiction. Jurisdiction is a very important issue as, in the
Delhi case, the victims friend stated that the police wasted 30 minutes arguing over
jurisdiction, although the victim and her friend were lying on the road for two hours. The
police chief also announced a series of other measures such as the recruitment of 418 women
sub-inspectors and 2,088 women constables, PCR vans to be deployed outside womens
colleges, provision for women to call 100 to seek assistance to be given a lift home at night
by a PCR van, and 24-hour police cover for areas around entertainment hubs with increased
security between 8 p.m. and 1 a.m. Despite these reforms, in the succeeding months, police
actions in subsequent rape cases have caused much alarm. In the case of the rape of a fiveyear-old child, the police were accused of offering a bribe of Rs. 2,000 to the victims family
to refrain from filing a case. Police officers have also been filmed on video beating women
of all ages because they had the audacity to protest a rape.
Model Police Act
Despite the clear need for reform of police handling of rape cases, the Model Police
Act of 2006 drafted by the Police Act Drafting Committee (PADC) constituted by the
Ministry of Home Affairs in September 2005, and chaired by Mr. Soli Sorabjee, is in cold
storage. The Model Act, which was intended to replace the archaic Indian Police Act of 1861,
was drafted with the purpose of not only meeting the challenges of policing but also fulfilling
the democratic aspirations of a modern society. The PADC envisioned a modern police force

which was responsive to the needs of the people while being accountable to the rule of law. A
few of the key concepts underlying the police Act were: 1) functional autonomy; 2)
encouraging professionalism; 3) accountability; and, presciently, 4) jurisdiction.
First, functional autonomy was viewed as a means of removing the nexus between
police and politicians who treat the police as their personal security service. It proposed the
establishment of a panel to receive complaints from police officers of pressure from higher
officials to commit illegal or unconstitutional acts. The PADC felt that the law should be the
master of the police, not politicians. A fixed tenure of two years was suggested to avoid
transfers arbitrarily.
Second, the Model Act focussed on encouraging professionalism. The PADC
recommended abolition of the rank of constable and replacing it with a primary rank of
Grade II civil police officer. However, a recruit can attain this officer rank only after
undergoing a three-year training course as a stipendiary cadet, culminating in a bachelors
degree in police studies. As a result, even the lowest level of the police force will have a
bachelors degree.
Third was the principle of accountability. The police Act proposed introducing
criminal penalties for the most common defaults of the police such as non-registration of
FIRs, unlawful arrest, detention, search or seizure.
Fourth, and most presciently, was the issue of jurisdiction. Underpinning the Model
Police Act is the notion that police officers should be duty-bound to assist victims of sexual
offences irrespective of the crimes jurisdiction. As the Model Police Act was never
implemented, it took the tragic Delhi case for reforms regarding jurisdiction to be
announced. In short, while the passage of the Criminal Law (Amendment) Act 2013 is a
milestone in criminal law reform in rape cases, the creation of offences is not sufficient.
Instead, the punishment of those committing these offences through the police and the
criminal justice system is critical in providing effective deterrence against future crimes.



Dr. KI Vibhute, PSA Pillais Criminal Law (10th edn Butterworths, New Delhi
S. K. Sarvaria (edr), R. A. Nelsons Indian Penal Code (9th Lexis Nexis Delhi 2003)
Jus A. B. Srivastava (ed) Dr Hari Singh Gours Penal Law of India (11th edn Law
Publisher, Allahabad 2000)
Arvind Narrain , The Criminal Law ( Amendment) Bill 2012: Sexual Assault as a








<> accessed 21 April 2014

Priyanka Rath, Marital Rape and the Indian legal scenario (India Law Journal )
accessed 21 April 2014
Sex Law Reforms in an International Perspective, CYRIL GREENLAND, M Sc

Law Commission of India 172nd Report, March 25, 2000

Law Commission of India 84th Report, 1980
National Commission for Women's recommendations to amend the Criminal Law Act,
Justice Verma Committee Report on Amendments to Criminal Law, 2013