THE CRIMINAL LAW (AMENDMENT) ACT, 2018 – Zeenia

THE CRIMINAL LAW (AMENDMENT) ACT, 2018

 

The Author is Zeenia Nagpal, a 5th Year BA LLB (H) student from Alliance Law, Bangalore.

 

President Ram Nath Kovind has given assent to the Criminal Law (Amendment) Act, 2018 on 11th August 2018. The amendment has replaced the Criminal Law (Amendment) Ordinance, 2018 which was promulgated on 21st April 2018.

 

Ordinance

 

Article 245 of the Constitution of India declares that Parliament vests with power to make laws for the whole or any part of the territory of India. This means that usually, it’s the parliament that makes the law. However, Article 123 of the Constitution gives power to the President of India to promulgate the Ordinances. But such power can only be exercised when:

  1. The President is satisfied that such circumstances exist which requires immediate action.
  2. And at that time, both the Houses of the Parliament i.e. Lok Sabha and Rajya Sabha, are not in session.

Next, When the Parliament reassembles, such ordinance made by the President will be laid before both the House of the Parliament. Now, the Parliament can Approve (becomes a law), or disapprove (the ordinance lapses), or act nothing upon it i.e. neither approves nor disapproves (lapses within 6 weeks).

 

Salient features of the Act

 

The said ordinance was promulgated after the brutal gang rape and murder of 8-year-old Asifa Bano in Kathua and after burning of seventeen years old rape survivor in Unnao.

This Act amends the Indian Penal Code,1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973, and the Protection of Children from Sexual Offences Act, 2012.

 

Amendments to the Indian Penal Code, 1860

 

This Act brings amendments to Section 166A, Section 228A(l), Section 376 and Section 376E.

It also inserts a few new provisions, that are, Section 376AB, Section 376DA, Section 376 DB

Highlights of such amendments to the Indian Penal Code, 1860, are as follows:

  • Previously, where the minimum punishment for rape was 7 years, now such minimum punishment is increased to 10 years.
  • Previously, where the minimum punishment of 10 years was awarded for the rape of women under the age of sixteen years, now such minimum punishment is increased to 20 years. Also, any fine imposed under this provision shall be paid to the victim.
  • In the case of gang rape of women under sixteen years of age, the offenders shall be punished with life imprisonment and with the fine.
  • In case of rape committed on a woman under twelve years of age, the offenders shall be punished with the rigorous imprisonment of a minimum of 20 years extending up to life imprisonment, with the fine. This Act also imposes the death penalty for rape of girls below the age of twelve years.
  • In the case of gang rape of women under twelve years of age, the offenders shall be punished with life imprisonment and with the fine. The Act also imposes the death penalty for the gang rape of girls below the age of twelve years.

 

Amendments to the Indian Evidence Act, 1872

 

This Act brings amendment to Section 53A and to Section 146 of the Indian Evidence Act, 1872, wherein it adds the new provisions (i.e. Section 376AB, Section 376DA, Section 376 DB) of Indian Penal Code, 1860, with the already existing ones (i.e. Section 376A, Section 376B, Section 376C, Section 376D).

 

Amendments to the Code of Criminal Procedure, 1973

 

This Act brings amendment to the first schedule and various sections i.e. Section 26, Section 154, Section 161, Section 164, Section 173, Section 197, Section 309, Section 327, Section 357B, Section 357C, Section 374, Section 377, Section 438 and lastly, Section 439.

Highlights of such amendments to the Code of Criminal Procedure, 1973, are as follows:

  • Previously, under the Code of Criminal Procedure,1973 investigation into the rape of a child was to be completed within a period of three months. However, now it has to be mandatorily completed within a period of two months.
  • The deadline for the completion of trial in all rape cases will be two months.
  • According to this Act, any appeal filed against the sentence of rape must be disposed of within a period of six months, which ordinarily takes a longer period.
  • There will be no provision for the anticipatory bail in case of rape or gangrape of a woman under the age of sixteen years.

 

Amendments to the Protection of Children from Sexual Offences Act, 2012.

 

This Act brings amendment to Section 42 of the Protection of Children from Sexual Offences Act, 2012.

 

Legal Issues

 

The Criminal Law (Amendment) Act, 2018, solely talks about the rape of women. Although, it has also made the punishments more stringent and has added the death penalty for the offenders committing rape on the woman below twelve years of age. Keeping aside the arguments for the death penalty, and examining the major amendments which this Act brings to Indian Penal Code,1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973, and the Protection of Children from Sexual Offences Act, 2012, only points out the wide ‘Gender difference’.

This Act might not stand the test of Article 14 of the Constitution of India as it highly favors women. This Act is vocal about reducing the time of police investigation and trials of the women rape case but is silent if the victim is a male. Moreover, the court can now impose the death penalty for the offenders committing rape on a woman below twelve years, but not if the victim is a male child. Where it was the need of an hour to introduce the gender-neutral laws in this country, this Act has only been discouraging.

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