Lucknow, UP, India, 226028

THE NIRBHAYA ACT

Piyasha 2

INTRODUCTION

On the cold night of 16th December 2012, a twenty-three-year-old medical student was subjected to a horrific crime on the streets of Delhi, which shook every citizen of the country and challenged every law of the society. The trauma that Nirbhaya underwent led to large scale civil protests and brought revolutionary changes in the criminal justice system of the country. On the night of, 16th December Nirbhaya and her male friend were returning from a movie and boarded a bus, and there she was gang-raped by the six male members present on the bus. The extent of injuries was brutal, the worst being the insertion of an iron rod into her genitals, which was later discovered as a jack handle. Nirbhaya and her friend were robbed and thrown out of the moving bus. Almost forty-five minutes later they were taken to the Safdarjung hospital. She went through multiple operations including in her last operation in India most of her intestine was removed. Nirbhaya was moved to the Mount Elizabeth Hospital, Singapore. But she succumbed to her injuries at 04.45 am. on 29 December. Her body was cremated on 30th December in Delhi. On 31st December when the world was celebrating New Year, the whole of India was waiting for justice to be delivered. The youth and women of India had enough, there were candlelight vigils and mass silent gatherings, students from collages of Delhi gathered in protest, the police tried to control the mob by rapid action force. The incident also generated huge international coverage and the United Nations came forward to do everything in their power to take up radical reforms for the safeguard of women.

By 21st December all six were arrested. Among these six accused Ram Singh committed suicide in jail, and the minor Mohammad Afroz who was just 17 was tried in a Juvenile Justice Board and was sentenced to three years jail only even though multiple requests were made to not try him under JJB because of the gruesome nature of the crime. Both the Delhi High Court on 13th March 2014 and Supreme Court on 5th May 2017 upheld the death sentence of the rest of the four accused. A three bench judge comprising Justice Dipak Mishra, Justice R. Banumathi, and Justice Ashok Bhushan placed the case in ‘rarest of the rare category’. They were hanged to death on 20th March 2020 at 5.40 am in Tihar jail.

The impact of the incident jolted the entire law machinery into rapid action. A week after the horrific attack of Nirbhaya a committee headed by a former judge of the Supreme Court, J.S. Verma was set up, to consider and suggest changes in the criminal law of the country. Its main objective was to address all sorts of sexual crimes and ensure speedy trials and enhanced punishment. The committee was given thirty days to submit its report and the committee prepared its 644-page report in twenty-nine days after considering more than 80,000 suggestions and petitions received from the public, jurists, activists, lawyers, and various other factions of the society. Unfortunately, not all the recommendations suggested by the committee were accepted including the suggestion to criminalize marital rape. But altogether a lot of changes were brought in The Indian Penal Code, Evidence Act, and Code of Criminal Procedure and came into force 3rd February 2013.

AMENDMENTS MADE AND PROVISIONS ADDED

The Indian Penal Code, 1860:
  •  Sexual Harassment– before the passing of the act the provisions in the IPC did not clearly define rape and also did not law down the punishment for sexually harassing a person. After the amendment of 2013, under section 354A [1] a strict definition of sexual harassment with punishment was brought down.
  • Assault or use criminal force to women to disrobe – There was no specific provision to deal with this kind of offense, it was simply left to be dealt with under sec. 354. After the amendment, section 354B [2] was added to impose imprisonment of three to seven years.
  •  Voyeurism: Voyeurism is the act of watching a person secretly without their knowledge or consent while the women are engaged in a private activity and do not expect to be seen. Before the amendment, there were no laws. Later section 354C was added to criminalize voyeurism.
  •  Stalking: Even the act of stalking did not have any existing laws after the amendment section 354D was laid down to criminalize stalking punishable for both genders and the definition of stalking is limited to the physical act of following or contacting a person provided that there has been a clear sign of disinterest from the other side.
  •  Rape: under the rape laws Section 354A 354B 354C 354D and 354E were added criminalizing rape by police, custodial rape, rape in hospitals by staffs, gang rape, sexual intercourse by a person in authority, and some other rape laws were introduced

New sections inserted in CRPC:  Section 154, 164, 357B, 376C were added

New sections inserted in the Indian Evidence Act, 1872: Sections like 53A, 119A, 146, 42 were added along with the existing provisions.

Also, with these changes, some new concepts were added like, the new amendment defined “consent” in a broader way and added that the mere absence of resistance will not imply consent. The new rape laws override the chauvinistic approach of rape only meaning as vaginal penile penetration and target natural and unnatural penetrative assault in the meaning of rape. The widespread outrage against the short trial and punishment of the Juvenile even after committing such a heinous crime led to the introduction of the Juvenile Justice Bill 2015 which came into force from first January 2016. By 2014, GPS tracking systems were installed in 6,321 busses in Delhi, 45,000 autos, and 5549 chartered busses.

The Nirbhaya judgment to some extent has provided justice to the society but looking back to all the amendments and judgments the only question that arises is why such amendments and changes took place only after an incident of such gruesome nature. Had the system been better and the authorities more vigilant, maybe even this case could have been avoided and the cost for change in the system would not have been so high.

Author(s) Name: Piyasha Das (Amity University, Kolkata)

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