Abstract
This paper aims at describing the amendment in criminal law with the touchstone of the Constitution of India. Criminal law is the body of law that deals with crimes. It defines the offenses, its punishment and process to be followed by the court to punish the offender and give justice to law-abiding citizens. When the law is made with the standards set by the Constitution of India, it ensures that the citizen will live their life smoothly without any unnecessary delay or undue harassment and the amendments in the law ensures that it can cope up with the changing society and no one dares to do any offenses due to inadequate or obsolescence of law. But it also doesn’t mean that the legislator while amending a law can go beyond what is mentioned in the Supreme law of India i.e. Constitution of India because that law or amendment will become unconstitutional. Thus, this paper focuses on describing the changes in criminal law and reasons behind that change because behind every amendment, there is a reason and that reason may be obsolescence of law or inadequacy of law and another reason can be it is inconsistent with fundamental rights. Thus in this paper all changes in criminal law with the touchstone of the Constitution of India.
Keywords: Criminals, Justice, Amendments, Crime, Equality, Touchstone, Victims.
Introduction
Criminal law is a branch of law which deals with crimes. It helps in punishing the offenders by prescribing the path to be followed by the court in furtherance of the crime. It helps in three ways namely; defining the offences, describing the punishment and briefing the path to be followed to punish the wrongdoers. These laws are made to protect the nation from social evils which are prevailing in the society. But every law needs to be amended as per the changes in the society or otherwise, it will let to injustice with the victims rather than giving justice to them. Martin Luther once said, “Injustice anywhere is a threat to justice everywhere.”[1] So, to give justice to each and every victim and to maintain peace and harmony in the society legislators of India have to take some crucial decisions on the basis of situations taking place in the society from time to time. One of such example is Criminal Law Amendment Act, 2018 in which the legislators have increased the punishment of rape along with many other changes which will help in creating a form of terror in the minds of citizens and thereby preventing the future cases of rape.[2] The criminal law amendment bill 2019 is another example of it which is yet to be passed. According to which rape and other sexual offences should be gender neutral.[3] Every amendment made in India is made with the touchstone of Constitution of India as it is supreme law of India. No one can infringe the basic structure of the Constitution and this was led down by Supreme Court of India in Kesavananda Bharati v. State of Kerala.[4]
Need For Amendments
In India the need for change arises due to the development and advancement of the society to ensure peace and harmony in the society. Although, India has its laws in detailed, but we all know the society adopts changes with time which gives birth to new way to commit crime. This results in demand of new and better laws which can deal with the crimes in a much better way so, the legislator from time to time makes amendments on the demand of public and courts.
As we all know that law is made for the betterment of society, so the law should be one that is accepted by the society. But it is the rule of the nature and time to walk and adopt changes with time and as the society develops, similarly the nation has to evolve and change their laws according to the benefit of the society and to help the public run their lives softly and smoothly without any hindrances.[5]
A best example to illustrate the need of changes in law is Arbitration Techniques adopted by Indian Government these techniques when adopted was for the purpose of reduction of cost and time consuming processes of resolving disputes through courts. This adoption proved to be successful and was well adopted by the Indian Society. Likewise, the criminal law also evolves for the betterment of the society from time to time to give justice to the victims.
Sometimes, there are certain situations in which government and authorities have to take some crucial decisions for the benefit of the society. These decisions are taken sometimes in an hour or overnight on the demand of the society and one of the best illustrations is Nirbhaya case[6] as after that case the president immediately passed an ordinance to prevent further consequences. But, whatever is the scenario or whichever amendment takes place, it should not change the basic structure of the Constitution of India.
So, it can be said that as the society evolves, changes in law takes place which helps in protecting the society.
Changes In Criminal Law And Constitution Of India
Criminal Amendment Act 1983
It was enforced and implemented for the basic purpose of eliminating dowry system and cruelty against women by her husband and its relatives in India. The amendment was bought in the acts namely the Code of Criminal Procedure 1973, Indian Penal Code 1860 and Indian Evidence Act 1872. In amending the above mentioned acts, the basic aim of the legislators was to clearly define dowry and cruelty against women by her husband and its relatives and punishment for the same. The legislators inserted Section 498A of the Indian Penal Code in which it has clearly said that if a women is tortured mentally or physically by her husband or his relative for demand of dowry or for any other reason than they shall be imprisoned for a maximum period of 3 years and shall also be liable for fine. Apart from this, Sections 174, 176 of Code of Criminal Procedure were also amended and most importantly Section 198A was inserted which says that no court or police officer can take action without any complaint or report of facts by any person. Also, Section 113A was inserted in Indian Evidence Act in which a provision was created that if a wife commits suicide within a period of 7 years of her marriage it will be considered as abetment to suicide or murder by the husband and her relatives.[7] This amendment has reduced the crime taking place in the society.
Reason Behind This Enactment And Constitutional Aspect
This amendment came because the crime rate was increasing very rapidly due to which the legislators found it necessary to impose this amendment and take certain strict decisions for the betterment of the society. This amendment basically came after State v. Subhash[8], in which it was noted down that the dowry was still demanded in the society but in the name of gifts or stridhan. In this case, the victim was harassed by her husband and husband’s relative for not bringing enough amount of dowry for them. Even at the time of pregnancy she was tortured and later burned by her husband and his relatives. But due to lack of eye witness to the incident, the case got delayed. As per the findings of the case it was made clear that the cruelty done for demand of dowry is an inhuman act. After which this amendment was brought in criminal laws. The term dowry has been defined more clearly and with much more regulations. Further, the practice of dowry demand is now unconstitutional as it violates Articles 14, 15, 21 of the Indian Constitution which says that every person should be treated equally and should be given equal chance to represent him/ her and choose the way in which he/she wants to live in the society. Looking at this, the legislators amended the acts and passed this amendment act, which showed a great impact on the society and these amendments proved out to be beneficial for the society and was accepted and appreciated by all the citizens in the nation.
The Criminal Law (Amendment) Act, 2013
The Criminal Law (Amendment) Act, 2013 is an amendment which came after the Nirbhaya case. This act led to a lot of changes in the Indian Penal Code 1860, Indian Evidence Act 1872, and Code of Criminal Procedure, 1973. This act came into force on 3rd April 2013 after getting approval from the Lok Sabha on 19th March 2013 and Rajya Sabha on 21st March 2013 and President’s assent on 2nd April 2013.[9] The major changes which were brought by this act were addition of new offences like Sexual Harassment[10], Voyeurism[11], Acid Attack[12], Disrobing a Woman[13] and punishment of offence of Indecent gestures was enhanced. Also, the punishment of Rape and Gang Rape was enhanced by including capital punishment and life imprisonment in it. The word non-penetrative is also added in the definition of rape and many more addition has been made in sections relating to sexual offences in Indian Penal Code 1860, Indian Evidence Act 1872, and Code of Criminal Procedure, 1973 to improve the situation of women in the society and protect them from harassment.
Reason Behind This Enactment And Constitutional Aspect
This act was enacted after the Nirbhaya Case and due to which it is also known as Nirbhaya Act. In this case a girl was brutally gang raped on 16 December 2012 in Munrika, Delhi while she was in a bus with her friend. Both of them were beaten as they raised their voice against this wrongful act. She was raped by all men in the moving bus and her friend was beaten so badly that he became unconscious. Later, they were thrown out of the running bus and a person who was passing by reported the case to PCR. This disgusting act led to a massive anger amongst the person. People at large showed protest against this wrongful act. This incident covered international coverage, the United Nations Entity for Gender Equality and the Empowerment of Women called Government of India and Delhi and said, “to do everything in their power to take up radical reforms and the like to make women’s lives safer and secure”[14]. So, the need for amendment arise as Sexual harassment such as rape infringes Article 14 and 21 of the Indian Constitution which deals with Right to Equality and Right to Life with dignity and taking these into consideration the Criminal Law (Amendment) Act, 2013 was passed which protects the women from sexual offence thereby securing equality and life with dignity. Earlier, this act was promulgated as an Ordinance by President of India on 3rd February 2013 and on 3rd April 2013 this act came into force.[15] Though, the Act was different from the Ordinance and the report of Justice Verma Committee, but was made with the touchstone of Constitution of India.
Criminal Amendement Act 2018
This act was passed on 6th August 2018 by the Parliament and later got President Assent after which it was enforced. These include amendments in The Criminal Procedure Code 1973, The Indian Evidence Act 1872, The Indian Penal Code 1860 and The Protection of Children from Sexual Offences Act 2012. The major amendments in this were that the punishment of rape and gang rape has been increased. A person who commits rape with a girl below the age of 16 will be punished with a minimum of 20 years of imprisonment and which may extend to death sentence or life imprisonment and if a public official or any army official or any other government official rape a women or girl child then they can be punished with a minimum of 10 years of imprisonment. Apart from this now, as per Section 376 of Indian Penal Code (IPC) a fine can also be imposed on the accused which is to be paid to the victim. Further, amendments in other acts have been made accordingly[16].
Reason And Constitutional Aspect
The main reason behind this amendment was the Kathua Case (Mohd. Akhtar Vs. The State of Jammu & Kashmir)[17] and Unnao Rape cases[18] in which the children were raped and found dead due to the evilness of offenders which shook everyone in the society and to overcome this situation the government has passed this amendment to provide equality and protection to all its citizens including women. In both of these cases, the offenders were charged with a death penalty. Further, the Apex Court said that there will be no need of inquiry if any rape complaint is being bought into consideration or registered. The court has given enough authority to officer-in-charge if it is found that the complaint is enough to get to the conclusion of the case. The thought that led to this amend was the basic aspects of the Constitution of India that the fundamental rights must not be infringed or damaged by hampering citizens right to live with personal dignity. This aspect was dealt in this amendment. This amendment will help in preventing the rape and gang rape of women and girl child, as laws have being made stricter now which will help in creating terror in the mind of persons.
The Criminal Law Amendment Bill, 2019
The latest bill to amend criminal law was introduced by KTS Tulsi in Rajya Sabha as Private Member’s Bill. This bill is also known Gender Neutral Bill. [19] According to this bill, law will no longer be women centric which means it protects men, women and transgender/homosexual against the sexual assault. The main highlights of the bill are the addition of modesty in definition of Section 2 of Indian Penal Code (IPC) 1860 and addition of section 375A in Indian Penal Code. Also, amendment in Section 375 is proposed by replacing words ‘man’ and ‘woman’ by word ‘any person’ and making other amendments in his section which will make it gender neutral. Further, amendment in Section 354 to 354D of IPC are also proposed along with amendments in The Code of Criminal Procedure Act, 1973 under sections 154, 161, 164, etc. and in Indian Evidence Act, 1872 under sections 53A, 114A and 146. [20]
Reason Behind This Bill And Constitutional Aspect[21]
The Criminal Law Amendment Bill 2019 was introduced in Rajya Sabha after the Navtej Singh Johar vs Union of India case[22]. In this case the question which arises was of the constitutionality of Section 377 of the Indian Penal Code (IPC). Human ideology regarding the identity of an individual has reigned in the mid of every individual in all spheres of life whether to be successful, gain fame or be economically powerful with feeling of superiority in any sphere. Moreover, there are lots of debates happening in last few decades on the social implication and legal acceptance of the concept of “identity with dignity” within the framework of the Constitution; hence it is important for gender identity of a person together with the constitutional concept of “identity with dignity. In the writ petition of the Section 377 of IPC, it was debated that the amendments to be incorporated in the Section would include only sexual orientation of the identity of a person or it should also include the sexual choice of a citizen. The Supreme Court after hearing both parties gave the judgment that Section 377 of IPC is unconstitutional as it violates Article 14, 19 (1) (a) and 21 of the Indian Constitution which deals with Right to Equality, Right to Freedom of Speech and Right to life and personal liberty respectively. After this case, the need for amendment was felt due to two basic reasons. First was that the individual who are homosexual or transgender can also be victim of sexual offences and second reason is that man cannot always be the person committing the rape or other sexual offences.
Furthermore, our Constitution guarantees to all its citizens the basic Fundamental Rights and man or homosexual or transgender are citizen of India who are deprived off from these basic rights as sections relating sexual offences are framed to protect only women from these types of offences so, the need for this amendment is felt to give equal rights to all by being gender neutral. Though this bill does not ignore the situation in which women are, but it is just an attempt to protect man or homosexual or transgender from sexual assault which may occur in future to them. [23]
Conclusion
Criminal law is the body of law which defines offences, its punishments and process which will be followed. It is essential body of law which helps in creating peace in the society by punishing the social evil of the society and protecting the life and personal liberty of the peoples. It also helps in providing justice to victim by punishing the offenders and that is why it is said that criminal law is a friend of law abiding citizens and enemy of criminals and to protect its friends criminal law keeps on changing with the changing world. Many important amendments like the criminal law (amendment) act 1983, the criminal law (amendment) act 2013, the criminal law (amendment) act 2018 and the criminal law (amendment) bill 2019 has been passed or yet to be passed. These amendments are made with the touchstone of Constitution of India because no amendment can made in the country without following the standard and criteria set up by the Constitution of India. Constitution of India is basic framework on which other laws will be framed. If an act is against the Constitution of India, it will be treated as unconstitutional. Various changes which came or will be coming in India are always passed with the touchstone of the Indian Constitution.
Once Thomas Jefferson said,
“The two enemies of the people are criminals and government so let us tie second down with the chains of the Constitution so the second will not become the legalized version of first”[24]
So, every change in the criminal is made with the touchstone of Constitution of India.
[1] Martin Luther King, Jr. Quotes, BRAINY QUOTES, https://www.brainyquote.com/quotes/martin_luther_king_jr_122559.
[2] Saumya Sinha, The Criminal Law (Amendment) Act 2018, IPLEADERS (Oct. 24, 2018), https://blog.ipleaders.in/criminal-law-amendment-act-2018/.
[3] Harsh Gupta, Criminal Law (Amendment) Bill 2019: Critical Analysis, THE LEAFLET (July 30, 2019), https://theleaflet.in/criminal-law-amendment-bill-2019-a-critical-analysis/.
[4] AIR 1973 SC 1461.
[5] Indulekha_k, Major Criminal Law Amendments relating to rape laws in India, LEGAL SERVICE INDIA,
http://www.legalserviceindia.com/legal/article-1731-major-criminal-law-amendments-relating-to-rape-laws-in-india.html.
[6] Mukesh & Anr. Vs State For NCT of Delhi & Ors., (2013) 2 SCC 587 (India) (hereinafter Nirbhaya Case).
[7] The Criminal Law (Second Amendment) Act, 1983, No. 46 Acts of Parliament, 1983 (India).
[8] 1984 CriLJ 481.
[9] Adv. Shweta Kaushik, The Criminal Law Amendment 2013 simplified, VAKILNO1.COM (Oct. 20, 2014), https://www.vakilno1.com/legal-advice/criminal-law-amendment-2013-simplified.html.
[10] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860, S 354A.
[11] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860, S 354C.
[12] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860, S 326A- 326 B.
[13] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860, Section 354B.
[14] Anne F Stenhammer, UN Women condemns gang rape of Delhi student, UN WOMEN (Dec. 20, 2012), https://www.unwomen.org/en/news/stories/2012/12/un-women-condemns-gang-rape-of-delhi-student#:~:text=UN%20Women%20in%20India%20stresses,women%20and%20girls%20in%20India.&text=We%20call%20on%20the%20Government,lives%20more%20safe%20and%20secure.
[15] Yamini, Criminal Law (Amendment) Act 2013: Sexual Offences, ACADEMIKE (April 8, 2015), https://www.lawctopus.com/academike/criminal-law-amendment/.
[16] Supra note 2 at 1.
[17] 2018 SCC OnLine SC 386.
[18] SC Suo Moto Cognizance Unnao Rape Survivor Letter, LIVE LAW (July 31, 2019, 10:56 AM), https://www.livelaw.in/top-stories/sc-suo-moto-cognizance-unnao-rape-survivor-letter-146816.
[19] Supra note 3 at 1.
[20] The Criminal Law (Amendment) Bill, 2019, LIVE LAW, https://www.livelaw.in/pdf_upload/pdf_upload-362124.pdf.
[21] Supra note 3, at 1.
[22] AIR 2018 SC 4321.
[23] Jismin Jose, Navtej Singh Johar vs Union of India Thr. Secretary Ministry of Law & Justice, LAW TIMES JOURNAL (September 14. 2019), https://lawtimesjournal.in/navtej-singh-johar-ors-vs-union-of-india-thr-secretary-ministry-of-law-justice/.
[24] Quotes about Government Thomas Jefferson, QUOTE MASTER, https://www.quotemaster.org/government+thomas+jefferson#&gid=1&pid=13.
About Authors –
1. Nur Tandon – B.B.A. LL.B student at Guru Gobind Singh Indraprastha University, Delhi
2. Manak Goel – B.B.A. LL.B student at Guru Gobind Singh Indraprastha University, Delhi