Criminal Law (Amendment) Bill, 2012- Strengthening Laws On Rape And Acid Attacks NATIONAL LEGAL RESEARCH DESK

1. On the basis of the recommendations of the Law Commission of India in its One Hundred Seventy Second report on Review of Rape Laws as well as the recommendations of the National Commission for Women for providing stringent punishment for the offence of rape, a High Power Committee was constituted consisting of the representatives of the Ministry of Women and Child Development, Ministry of Law and Justice, National Commission for Women, Law Commission of India and the Ministry of Home Affairs to examine the matter considering the suggestions of various quarters on the subject. The Committee submitted its report along with the draft Criminal Law (Amendment) Bill, 2011 and recommended to the Government for its enactment. The draft Bill was further examined by the Government. 2. The Criminal Law (Amendment) Bill, 2012 seeks to amend the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, inter alia, so as to (a) substitute sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code, and replacing the word rape wherever it occurs by the words sexual assault, to make the offence of sexual assault gender neutral and also widening the scope of the offence of sexual assault; (b) include sections 326A and 326B in the Indian Penal Code to make acid attack a specific offence; (c) enhance the punishment under sections 354 and 509 of the Indian Penal Code, making the offence more stringent; (d) amend sections 154, 160 and 161 of the Code of Criminal Procedure, 1973 for providing women and male person under the age of eighteen years or above the age of sixty-five years more protections; (e) amend the Indian Evidence Act, 1872 by way of inserting a new section 53A wherein evidence of the character of the victim or of his or her previous sexual experience shall not be relevant or questioned. 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 lakh. 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 IPC, 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: (a) 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; (b) 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; (c) 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 IPC, 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 IPC, 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 IPC, 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 IPC provides a punishment of up to five years for public servants who engage in sexual intercourse with a 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 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 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.

PROTECTION OF CHILDREN FROM SEXUAL HARRASMENT T he Ministry of Women and Child Development has notified rules under the Protection of Children from Sexual Offences Act, 2012. The Act has done away with the age of consent clause and classified any sexual act with a child below 18 as a punishable offence. Though it has encountered criticism from various quarters, including the National Commission for Protection of Child Rights, on the age of consent issue, the ministry maintains that the Act will not be abused to harass minors as in such cases action would be taken under the Juvenile Justice Act. The rules emphasise the need to communicate with a child in a language he/ she is comfortable with and in the presence of a person known to the child. The child welfare committee would take a decision on whether the child needs to be shifted to a home based on factors like whether the child needs to remain in the care of parent, family and extended family, his/her

age, maturity, gender, social and economic background and chronic illness etc. The rules make it the duty of the local police or child protection unit to ensure not just action on the childs complaint but also that the victim gets adequate medical attention within 24 hours of coming to know about the crime. No medical practitioner, hospital or other medical facility centre rendering emergency medical care to a child shall demand any legal or magisterial requisition or other documentation as a pre-requisite to rendering such care, say the rules. The rules specify the provision for deciding on an interim compensation by the special court, either on its own or on an application filed by the child at any stage after registration of the FIR. The interim compensation would be adjusted against the final compensation.