How Did the Law Change After Nirbhaya’s Case?
We take you through the changes to our laws on crimes against women that were brought in after the Nirbhaya case.
(This was from first published on 15 December, 2017 and has been republished from The Quint's archives to mark the 8th anniversary of the Nirbhaya gang rape and murder.)
When we look back at the aftermath of the brutal Nirbhaya gang-rape and murder, the first thing that comes to mind was the anger. The anger that something like this could happen and that it keeps happening.
That anger was directed not just at the rapists, but our society, our police, and our justice system, all of which have allowed an atmosphere where perpetrators commit these crimes with impunity, and rarely if ever face the consequences.
All too often this kind of anger goes nowhere. Think back to the Jessica Lall case, which galvanized the nation, and yet led to no reforms or lasting change.
Thankfully, all that anger over what happened to Nirbhaya wasn’t in vain.
The Verma Committee
A week after the horrific attack on Nirbhaya on 16 December 2012, the Justice JS Verma Committee was set up to review our criminal laws and recommend amendments to them.
Its main objectives? Properly addressing all sorts of sexual crimes, and ensuring speedier trials and enhanced punishment.
The Committee’s huge 644-page report, which was published within a month, for once didn’t just end up gathering dust at the Law Ministry, but instead formed the basis of the Criminal Law (Amendment) Act of 2013, after first being implemented as an ordinance.
Unfortunately, not all the Committee’s recommendations were accepted, including some that really should have been, such as criminalising marital rape.
But we did see some significant changes to the law because of this.
1. Reforms to Law on Rape
The headline reforms in the 2013 Amendment Act were of course about rape.
One of the more horrific aspects of the Nirbhaya case had been the way in which an iron rod was used to penetrate her, damaging her intestines and eventually causing her death. Under the old definition of rape, this part of the assault on her wouldn’t have been classified as rape, and nor was forced oral sex.
The 2013 Act expanded the definition of rape to include oral sex as well as the insertion of an object or any other body part into a woman’s vagina, urethra or anus.
The punishment for rape was also made stricter. The courts’ discretion to give rapists a sentence lesser than the minimum of seven years was abolished. Separate punishments for repeat offenders were also introduced, including the possibility of the death sentence.
The amendments also included an improved standard of consent – consent now needs to be unequivocal and clearly communicated, and lack of physical resistance isn’t assumed as consent.
We also officially repealed several rules of evidence that were regressive, that encouraged victim-shaming, and actually had nothing to do with the crime, like the two-finger test, or questioning the victim’s previous sexual history.
Finally, fast-track courts were also set up for rape cases, which were to conduct trials on a day-to-day basis and not stretch them over several months. Trials also need to be completed within two months of the chargesheet now.
2. New Sexual Assault Offences
Next, we have the new sexual assault offences. Previously, the IPC had to tackle sexual assault offences using the archaic section 354: “outraging the modesty of a woman.”
Now, under sections 354A-D, stalking, voyeurism, unwanted sexual advances and touches are all specific offences – which helps ensure that these extremely dangerous behaviours can no longer be ignored or trivialised.
3. Provisions on Acid Attacks
And in a crucial move, recognising India’s massive problem with acid attacks, the 2013 Act also introduced provisions specially criminalising them, and for protecting victims of these attacks.
Were the Reforms Effective?
All this looks good, but has any of it actually been effective?
If you were to look at the ever-increasing numbers of crimes against women, you might think not.
However, this would do the legal amendments a disservice. It makes little sense to argue whether or not the new laws have reduced crime, especially since they were only brought in so recently.
A better standard would be to see if these laws are ensuring that women are not being re-victimised any more, when they approach the legal system after a crime is committed against them. The fact that there are more crimes being reported actually shows that more women have been able to come forward, some of which should be owed to the amendments.
So yes, that anger from five years ago did not go in vain. It’s brought about some genuinely good reforms, and has fuelled debates over women’s rights and autonomy, which has in turn led to things like marital rape also being challenged now in the courts.
But there’s still much more to do. And so, long may that anger continue to burn.
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