INTRODUCTION

Crime is considered to be a wrong committed against society. On the one hand it is the
individual interest in the individuals well being and also the societal interest in maintaining
societal sense of stability and societal conscience. On the other hand, it is the freedom of
action of an individual. The criminal law protects the right to life and personal liberty of an
individual and it does balancing of interest. It is the society which determines through the
criminal law as to what is the extent of restraint upon the individual freedom of action in light
of the individual and the societal interest involved.

It is a matter of societal and state policy as to what wrongs will be considered to be criminal
wrongs. It is the society which is represented by the legislative body which pre-determine as
to what wrongs can be considered to be such as will shake the societal conscience. It is these
wrongs which the society as a matter of collective judgment declares to be criminal wrongs
and declares them to be punishable. Punishment has the following features:-

It involves the deprivation of personal liberty of an offender.

It is the consequence of an offence.
It is applied against the offender.
It is executed by an organ of the system that made the act an offence.

The kinds of punishment given are depends upon in which society the offender lives in.
During the ancient period the punishment was very severe because creation of fear by giving
harsh punishment used to be considered prime instrument in preventing crime. But with the
change in time and development of human mind, the punishment theories have become more
tolerant to these offenders. Invalidating the stringent theories of punishment, modern society
seems loosening its hold on the offenders. The present scenario also witnesses the opposition
of capital punishment as inhumane though it was a major of punishment earlier.

As punishment generally provided in the Criminal Law, it becomes important to know what
crime or an offence really is. Here the researcher would like to quote Salmonds definition of
crime: Crime is an act deemed by law to be harmful for the society as a whole though its
immediate victim may be an individual. He further substantiates his point of view through the
following illustration a murderer injures primarily a particular victim, but its blatant disregard
of human life puts it beyond a matter of mere compensation between the murderer and the
victims family.

Thus it becomes very important for a society to punish the offenders. Punishment can be used
as an instrument of reducing the criminal behaviour either by deterring the offenders or by
preventing them from repeating the offence or by reforming them into law abiding citizens.
Theories of punishment, contains general policies of theories of punishment namely:
Deterrent, Retributive, Preventive and Reformative. Punishment needs justification because
justification for legal punishment has been given greater importance by philosophers.

1
As punishments generally punish the guilty mind it becomes very important to know what
crime really is. But it is quite difficult to say whether or not there must be any place for the
traditional forms of punishment. In todays world the major question that is raised by most of
the penologist is that how far are present methods of punishment like the reformative
successful in their objective. It is observed that prisons have become a place for breeding
offenders not as a place of reformation as it was meant to be.

It may be clearly said that the enactment of any law brings about two parts in the society- the
law-abiders and the law-breakers. It is purpose of these theories of punishment to by any
means transform or change these law-breakers to the group of law-abiders. To understand the
topic it is important to bring about a valid relation between crime, punishment and the
theories.

2
What is Crime?

Crime and punishment are closely related. In the ordinary language the term crime means
an unlawful action which is punishable by law of the land. It is very difficult to give a correct
and precise definition of crime. Glanville William, admitting the impossibility of having a
workable content based definition of crime, points that the definition of crime is one of the
thorny intellectual problem of law1. Russell also admitted that to define crime is a task which
so far has not been satisfactorily accomplished by any writer2. JW Cecil Turner, who edited
Kennys outlines of Criminal Law, in a similar tone, also conceded that the definition of
crime has always been regarded as a matter of great difficulty and the truth appears to be
that no satisfactory definition has yet been achieved, and that it is, indeed, not possible to
discover a legal definition of crime3.

Such a difficulty, in ultimate analysis, arises due to the changing nature of crime, an
outcome of the equally dynamic criminal and penal policy of a state. A number of social
and political forces and factors, individually and cumulatively, play a pivotal role in the
formulation of criminal policy of a state. It obviously varies according to cultures, social
values and beliefs, and ideology of the ruling social-political power. Only social and culture
in vogue and the existing power structure dictate the values and social interests that need
protection by using criminal law sanctions. In fact criminal offences, observed by
Russell, are basically the creation of the criminal policy adopted from time to time by those
sections of the community who are powerful or astute enough to safeguard their own security
and comfort by causing the sovereign power in the state to repress conduct which they feel
may endanger their position4. Professor Kenny, delving into the difficulty, however was
more eloquent, who observed thus:

Any conduct which a sufficiently powerful section of any given community feels to be
destructive of its own interests, as endangering its safety, stability or comfort, it usually
regards as especially heinous and seeks to repress with corresponding severity; if possible it
secures that the forces which the sovereign power in the State can command shall be utilized
to prevent the mischief or to punish anyone who is guilty of it. Of course a variety of factors
may operate at the same time to produce this result, and it is rarely possible to identify them
clearly: all can be said is that an offence may become a crime as a result of the combined
effect of a number of different social forces. Crimes therefore originate in the government
policy of the moment; Since that policy is influenced by many considerations it is not easy to
discover in any specific case of new law, what exactly and exclusively are the forces which
have produced it; nor, of course, is the policy always followed inconsistently or logically. So
long as crimes continue to be created by government policy the nature of crime will elude
true definition5.

1
Glanville Williams, The Definition of Criminal Law[1955]
2
Russell on Crime, JW Cecil Turner (ed.), Stevens & Sons, London, vol. 1, 12th edn.
3
Kennys Outlines of Criminal Law, JW Cecil Turner (ed.), 18 th edn, Cambridge.
4
Russell on Crime, JW Cecil Turner (ed.), Stevens & Sons, London, vol. 1, 12 th edn.
55
Kennys Outlines of Criminal Law, JW Cecil Turner (ed.), 18 th edn, Cambridge.

3
A pattern of human behaviour prohibited by criminal law at a given time in a given society,
thus, depends upon the specific features of its organisation. Developments in science,
especially in biology and medicine, and changes in the predominant moral and social
philosophy also influence the making of penal law. This explanation also enables us to
understand why crimes changes from age to age and differ from state to state. Whenever
society comes to believe that conduct that was once held to menace any of the consciously
recognised interests no longer actually menaces them, it ceases to be a crime. Whenever
society believes that a kind of conduct that was once thought to be indifferent to the welfare
of the group actually threatens some of the cherished interests, it applies repressive methods,
and that conduct becomes crime. Only political power of the day decides what human
conduct deserves to be a crime. The domain of criminal jurisprudence, observed Lord
Atkin, can only be ascertained by examining what acts at any particular period are declared
by the State to be crimes, and the only common nature they will be found to possess is that
they are prohibited by the State and that those who commit them are punished. A truth is that
a crime is an act or omission in respect of which legal punishment is inflicted on the person
who is in default either by acting or omitting to act and criminal law relates to crimes and
their punishment.

Principle of Criminal Liability-

The fundamental principle of criminal liability is that there must be a wrongful act- actus
reus, combined with a wrongful intention-mens rea. This principle is embodied in the maxim,
actus non facit nisi mens sit rea, meaning an act does not make one guilty unless the mind is
also legally blameworthy. A mere criminal intention not followed by a prohibited act cannot
constitute crime. Similarly, mere actus reus ceases to be a crime as it lacks mens rea. No act
is per se criminal; it becomes criminal only when the actor does it with guilty mind. No
external conduct, howsoever serious in its consequences, is generally punished unless the
prohibited consequence is produced by some wrongful intent, fault or mens rea. In juristic
concept, actus reus represents the physical aspect of crime and mens rea, its mental aspect,
which must be criminal and cooperate with the former.

Actus reus has been defined as such result of human conduct as the law seeks to prevent.
Mens rea, which is a technical term generally taken to mean some blameworthy mental
condition or mind at fault, covers a wide range of mental states and conditions, the
existence of which would give a criminal hue to actus reus. Chief Justice Kenyon said in
Fowler v. Padget6: The intent and the act must both concur to constitute the crime. This
common law principle has come to be regarded as the most fundamental principle of criminal
liability.

6
(1798)7T.R.509(TAC)

4
Punishment-

Punishment is the authoritative imposition of something unpleasant on the individual or a

group whose behaviour or action is perceived to be unacceptable to the society. A
Punishment is a consequence of an offense. Punishments are imposed on the wrong doers
with the object to deter them to repeat the same wrong doing and reform them into law-
abiding citizens. The kind of punishment to be imposed on the criminal depends or is
influenced by the kind of society one lives in.

Durkheim explains crime, as crime exists in every society which does and does not have
laws, courts and the police. He asserts that all societies have crime, since all societies involve
a differentiation between two kinds of actions, those that are allowed and those that are
forbidden. He calls the latter type criminal. Law is the string that binds society, and he who
attempts to break the string is a danger to the society as a whole and dealt with sternly by the
powerful arms of law. Punishment though most times confused with imprisonment is
something much different from it. Punishment though most times confused only with
sanctions may also be of moral nature like ostracism. Punishment, whether legal or divine,
needs justification. Because the justification of legal punishment has been given greater
consideration by philosophers than has the justification of divine punishment by theologians,
the philosophical concepts and 'theories of punishment, (i.e. the justifications) will be used
as a basis for considering divine punishment.

A complete definition will now be made in such a way as to include both legal and divine
punishment. A.Flew first suggests that punishment must be an evil, an unpleasantness to the
victim. J. Mabbot objects to the use of the word 'evil' in connection with punishment. He
maintains that 'evil' carries too much moral flavour and also that it suggests positive
suffering. Mabbot states: The world is a worse place the more evil there is in it and perhaps
the more suffering. But it does not seem to me necessarily a worse place whenever men are
deprived of something they would like to retain; and this is the essence of modern
punishment. While deprivation may be a more appropriate description of modern punishment
this does not necessarily exempt it from being an evil. Nor does the suggestion that 'evil'
carries a moral flavour, for in fact the word punishment itself carries a moral flavour. (Like
'evil', punishment is not in itself a moral term but it is suggested that it usually occurs in an
ethical context.) While we must eventually come to some conclusion as to whether
punishment is an evil, it would be preferable at present to use, as does W. Moberly, the
slightly more neutral term 'ill'.

Both of these thinkers of punishment believe that the offender must be answerable for any
wrong that he has done. K. Baier explains punishment as law-making, penalisation, finding
guilty, pronouncing a sentence. In a legal context law-making is a necessary condition, but it
is possible to commit a wrongdoing intentionally although no law has been made, in fact it is
because certain acts are considered wrong that laws are made in the first place. What is
important to note is that punishment is a conditional act and cannot be isolated from its total
context.

But Durkhaeim has a different approach to punishment altogether. He treats punishment as

5
the reaction of the society against a crime. According to him, if punishment be a
proportionate response to the harm caused to the society then the extent of the punishment
inflicted must be clearly sorted out. He also stressed on the point that punishment can never
be calculated; it is an intensely emotional- sense of outrage- the desire to exact punishment.
He says, It is not the specific nature or result of the offending action as such which matter,
but the fact that the action transgresses widely shared ad strongly held sentiments, whatever
these might be in any particular case. He explains that if punishment is a reaction of the
society against the offenders then it is generally in the form of an outrage or anger thus rather
being reparative or reformative becomes punitive. This approach of the society towards the
criminals is what makes us treat them as outcasts and treated as a deviant from the social
norms. This two-fold approach has been criticized severely by various penologists, as at one
time there is the use of both reformative and retributive theories.

Punishment and crime are very strange phenomena to deal with. It is only if the acts done are
within the course of the provisions provided under the Code then any benefits take out of it is
not questioned. But any action through which maybe the same benefit is gained still the
person may be punished as because his action was not within the scope of the provisions.
Also there are certain elements in the society who though do many immoral acts but as
because any provisions or sanctions are not mentioned so that they cannot be punished and
they continue to do those acts. One should not earn any benefits or satisfaction out of such
acts.

The legitimacy of any form of has always been criticized. Though there are many legal
coercive measures but it is quite different from punishment. If the punishment were any
retribution to an evil done then regardless of any consequence it would try to end that evil in
itself. But if the objective of the punishment given is to prevent the crime from further
occurrence then it would rather than using coercive methods it would be using persuasive
measures and discourage the offender from committing that act in the future. Treating
punishment as a conventional device for the expression of resentment, indignation,
disappointment felt either by the sufferer and his family or the punishing authority as such
J.Feinberg argues that certain kinds of severe treatment become symbolic of the attitudes and
judgement of the society or community in the face of the wrongdoing, and constitute a stigma
which castes shame and ignominy on the individual on whom the punishment is applied. The
distinctiveness of the unpleasant measure could consist of the way of executing them. Thus,
summarizing the concept of punishment one can suggest that punishment includes the
following areas:
Punishment inflicted is a feeling of uncomfortable and unpleasant circumstances.
It is a sequel of a wrongful act.
There must be some relationship between the punishment inflicted and the crime
committed.
The punishment is a form by which a criminal is made answerable to the society.

6
Retributive Theory of Punishment:
The issue of punishment of criminals has been a well debated topic for societies since time
immemorial. Broadly, punishment was defined by Antony Flew7, Stanley Benn8 and HLA
Hart9 to be something unpleasant for an offense against legal rules which is administered by
the society and imposed by a legal authority. An essential ingredient of a certain expressive
function: punishment is a conventional device for the expression of attitudes of resentment
and indignation, and of judgments of disapproval and reprobation, on the part either of the
punishing authority itself or of those in whose name the punishment is inflicted10. The
broad theories of punishment are divided into consequentialist and retributivist
theories.11 Consequentialist theories are concerned with the practice of punishment if it brings
out better consequences. Retributivist theories of punishment see it as important because it
punishes the criminals in proportion to their crime thereby restoring a proper balance.
The way how a society punishes criminals is important because of its connection to several
events that happens. The recent Delhi rape case where an increased demand for the rapists to
be hanged was made inspite of our court system allowing for death penalty in very select
cases and that too in the rarest of the rare case threw up the debate regarding the system of
punishment which should be followed in such cases. Also, the controversy surrounding the
juvenile justice system which focuses on restorative justice even in grave crimes called upon
the need to look into several punishment policies.

BASIS OF RETRIBUTIVISM

The most classic form of retributivism is derived in Code of Hammurabis lex talionis, which
stands for an eye for an eye and a tooth for a tooth. Most retributivists believe that a guilty
person should suffer pain. Herbert Hart defined retributivism as the application of the pains
of punishment to an offender who is morally guilty12 . It has been commented that
retributivism is seen as making some appeal to moral desirability13. If a thief intends to steal
money from someone, he is morally responsible for the same. And because of this moral
responsibility, the thief deserves punishment.

The core principles of retributivism are desert and proportionality. The two principles are
somewhat interlinked. For retributivists, the punishment has to be proportional to the crime
committed. Desert refers to some demerit which has caused the accused to commit a crime.
Retributive punishment has to be proportional to the degree of desert. The more the desert,
the more the punishment should be. Retributivism is backward-looking. Retributivists do not
punish a criminal for what he or she might do, but only punish for the crimes one has
committed and in the amount the person deserves. Retributivists do not concern themselves
with the consequences of the acts but only with the desert which has occurred.

7
Antony Flew, The Justification of Punishment [1954]. Philosophy, 29, 293-294
8
S I Benn, An Approach to the Problems of Punishment [1958] Philosophy 127, 325
9
HLA Hart, Punishment and Responsibility (1st, Clarendon Press, Oxford 1968) 5
10
Joel Feinberg, Doing & Deserving; Essays in the Theory of Responsibility (1st, Princeton University Press,
Princeton 1970) 98
11
Although this broad classification has been challenged, but the two words are used to group together as a set
of very diverse theories. Matravers 2000:4 n 4
12
R.A.Duff and Stuart P.Green, Introduction: The Special Part and Its Problems in Defining Crimes: Essays
on the Special Part of the Criminal Law (OxfordL Oxford University Press, 2005): 1-20
13
T. M. Scanlon, What We Owe to Each Other (Cambridge: Belknap/Harvard University Press,1998), p. 266

7
In the retributivist theory of punishment, the punishment is seen as a form of payback for
the crimes one has committed14. Mostly retributive justice seeks to punish a person for a
crime in a way that is compensatory for the crime. Retributivists argue that criminals deserve
punishment on account of their wrongdoing. If they deserve punishment, then justice
demands we punish. We do injustice if we fail to punish criminals because they then do not
receive what they deserve15.

Another school of thought of retributivists sees punishment as a way to remove the unfair
advantage that the criminals possess due to commission of the crime. Like a thief benefits
from breaking the law by stealing someones possession. The punishment meted out should
remove the unlawful and unfair advantage.16 The criminals are seen to be free-riders on the
law-abiding community. By punishing them, the unfair advantage is wiped out.17

One view of retributuivism put forward by Hegel in early nineteenth century saw the idea of
punishment to cancel, negate or annul the offenders crime.18 In this view, the criminal rejects
the victims rights while committing a crime. If we leave the crime unpunished, it is regarded
as an innocent deed. But by punishing the criminal, the status quo ante crime is restored. This
view was taken forward by Hampton who said that by the very act of commission of crime,
the criminal fails to respect the victims value as a human being. Reteibutive punishment
vindicates the value of victim denied by the wrongdoers action through the construction of
an event that not only repudiates the actions message of superiority over the victim but does
so in a way that confirms them as equal.19 In this way punishment can annul the message,
sent by the crime, that they are not equal in value.20

14
John Cottingham, Varieties of Retribution, Philosophical Quarterly 29 [1979], pp. 238-46.
15
Thom Brooks, Punishment (1st, Taylor & Francis, 2012) 20
16
Herbert Morris, Persons and Punishment 1976 31-58. Published in Monis 52 [1968]: 475-501
17
John Deigh and David Dolinko, The Oxford Handbook of Philosophy of Criminal Law (1st, Oxford
University Press, Oxford 2012) 34
18
Hegel, Philosophy of Right (1st, Dyde, 1952) 100
19
Hampton 1992: 1677
20
Murphy & Hampton 1988: 131

8
Analysis of laws before the Criminal Law Amendment Act, 2013
Rape laws have seen numerous transitions before reaching the present form through the
criminal law amendment of 2013, which was brought through as an ordinance as the
parliament was not in session. This amendment was brought after a nationwide outrage
against the brutal rape of a physiotherapist student in Delhi.
Section 375 of the Indian Penal Code defines Rape. In common parlance rape is described as
sexual intercourse with a woman without her consent by force, fear or fraud21. Section 275
has seen an amendment in the year 1983, which overhauled the definition of rape and also
made changes to the punishments that were stipulated under the section 376. This was made
through the Criminal Law (Amendment) Act of 1983. Interestingly this amendment was also
brought about due to the widespread criticism of a judgment in the case of Tukaram v State
of Maharashtra22, In this case the trial court had pronounced the accused as not guilty which
was based on the concept that the victim had given tacit consent to the act. It was also
observed that the girl was of promiscuous character which was used as reasoning for the tacit
consent. This was overturned by the Bombay High Court which rightly pointed out that there
was a huge difference between consent and passive submission. It was very correct in its
observation that mere surrender to another persons lust should not be taken as consent. This
was upturned by the Supreme Court who acquitted all the accused. This judgment was
criticised widely by the civil society. The ramifications of the case were seen in the
amendments that were brought about in the IPC and the Indian Evidence Act. Section 376 A
to D were added to the IPC and section 114A was introduced in the Indian Evidence Act.

To analyse the laws before the criminal law amendment act 2013 it is important to know how
the sections have defined rape and the punishments associated with it. The crux of the
definition of rape in section 375 IPC before the amendment of 2013 is that rape involves
coercive non consensual sexual intercourse between a man and a woman. There are six
circumstances that can be said to be the constituents of rape. The primary condition necessary
for rape to be committed is that there must be the commission of sexual intercourse between
the man and the woman. It is widely believed that rape can only be committed if the sexual
intercourse has been done without the consent of the victim, but this is not always the case,
rape can be committed even after consent has been obtained if the age of the woman is below
the age of sixteen years. On a closer look at the circumstances required for the commission
of rape it can be broadly divided into three parts. The first two clauses reveal that they deal
with sexual intercourse with a woman against her will and without her consent. This
means that the woman is consciously capable of giving or not giving consent to the act. The
next two clauses deal with the woman giving her consent due to coercion that is by putting
her or any of her family members to threat of hurt or grievous harm and it also deals when the
consent is obtained through misconception. The last two clauses deal with the situation when
the consensual sex with underage female person takes place.

Explanation of the term Sexual Intercourse and Penetration

These are the terms that have undergone the most comprehensive change in the recent
amendment of 2013. Before the amendment of 2013, sexual intercourse was taken to mean
the penetration of the male genital organ into the female genital organ only. The courts
interpreted the term sexual intercourse as mere slightest or partial penetration of the male
organ within the labia majora or the vulva or pudenda is sufficient to constitute sexual

21
Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684
22
AIR 1979 SC 185

9
intercourse23. The courts have stressed on the fact that the depth of the penetration is
immaterial24. It is also laid down that there is no requirement for injuries to be present on the
private part25 of the woman to constitute rape. The hymen need not be ruptured26. Thus the
essential condition of rape is penetration and not ejaculation. Ejaculation without penetration
will constitute as an attempt to rape and not rape actually27. These conditions were expressly
mentioned by the Supreme Court in the case of State of Uttar Pradesh v Babulnath28. The
court in this case while delving into the essential ingredients of rape made the observation
that To constitute the offence of rape it is not at all necessary that there should be complete
penetration of the male organ with the emission of semen and rupture of hymen. Even Partial
or slightest penetration of the male organ within the labia majora or the vulva or pudenda
with or without any emission of semen or even an attempt at penetration into the private part
of the victim would be quite enough for the purposes of section 375 and 376 of the Indian
Penal Code. That being so it is quite possible to commit legally the offence of rape even
without causing any injury to the genitals or leaving any seminal stain29. An important issue
of widening the ambit of section 375 to include the any bodily penetration as rape was raised
in the case of Smt Sudesh Jhaku v KCJ & Ors.30 The petitioners wanted to increase the ambit
of the definition to include penetration of any male body part into any orifice in the womans
body. This however was rejected by the court which was not in favour of tinkering with the
existing definition of the term. The court said that it was necessary to prevent chaos and
confusion in the society with regard to the changed definition of rape and hence Section 375
should not be altered.

Punishments

Section 376 of the IPC stipulates the punishments that are awarded if a person is convicted of
rape. There is a minimum punishment of seven years and it can also be given with a fine and
extend to life imprisonment. However Section 376(2) provides the situations where the
quantum of punishment will be very high and it will include rigorous imprisonment which
will not be less than a term of 10 years.
The punishment for gang rape is provided under sub section 2 of section 376 IPC which
postulates that when a woman is raped by more than one person then each of the persons will
be convicted of the crime of gang rape and the punishment would not be less than ten years of
rigorous imprisonment in such cases.

23
Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204
24
Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9
25
Fateh Chand vs State of Haryana, (2009)15 SCC 543
26
Guddu vs State of Mp,(2007)14 SCC 454, 2006
27
Ramkripal Shyamlal Charmakar vs State of Madhya Pradesh(2007) 11 SCC 265
28
(1994) 6 SCC 29
29
Ibid.
30
(1998) Cr LJ 2428

10
Rape Laws after the Amendment of 2013

The Criminal Law Amendment Act of 2013 was brought into effect after the horrific Delhi
Gang Rape case which shocked the whole nation with the brutality of the act committed.
Widespread protests and agitations forced the legislature to contemplate the changing of the
prevalent rape laws. The basic idea was to make them more stringent and introduce harsher
punishments besides broadening the ambit and definition of the term rape.
Late Justice J.S.Verma, Gopal Subramaniam and Ex-Justice Leila Seth comprised the rather
famous Justice Verma Committee which was made to collect suggestions and make
recommendations for the legislature to make a law to combat rape and other crimes against
women31.The technical committee was so proactive with its working that during its short
duration it received as many as 80,000 suggestions over which deliberations were done.
These suggestions were sent by various activists, lawyers, NGOs and other persons
representing the civil society. Since the legislature was adjourned and there was no session,
the committees recommendations were introduced via an ordinance.
The offence rape was now amended or given a broader meaning which was comprehensive
enough to include any kind of penetration and also in any body part of the woman or girl.
This was the most important change because earlier section 375 of the IPC only stipulated the
Penile Vaginal penetration as rape. The fact that the new recommendations added that any
penetration would be considered as rape was the most efficient tool in widening the ambit of
the term rape which was being demanded earlier on the basis of the recommendations of the
fifth law commission report. There was also the inclusion of registering complaints and
medical examination. The report categorically mentioned, Any officer, who fails to register
a case of rape reported to him, or attempts to abort its investigation, commits an offence
which shall be punishable as prescribed32
The committee gave extensive recommendations regarding avoiding marital rape as well as
rapes committed via commission of void marriages. This was very important as I feel that
Marital Rape is a loophole that is very explicit and on the face in nature. It is a topic that is
not very hidden that legislations are not being made on the issue. This is why it is such an
important thing since everyone knows about it and yet the effort to include it under the
definition of rape has only begun recently. To include this fact and observation the committee
mentioned compulsory registration of marriages so as to provide legal sanctity solemnization
of marriage. The Code of Criminal Procedure also underwent a similar overhauling
attributed to the new law and had previously gone through the same process after the
judgment in the Supreme Court decision in the Gurmit Singh Case.33

31
http://en.wikipedia.org/wiki/J._S._Verma
32
Report of the Committee on Amendments to Criminal Law Pg 416
33
State of Punjab v. Gurmit Singh, AIR 1996 SC 1393

11
Critical Comparison of the two legislations

It goes without saying that the laws have now changed drastically from what it existed
previously. Societal views changes from time to time with the advent of new values and
technologies. It is only fair that similarly laws which matter so much in regulating the law
and order prevailing in the society also changes from time to time. This is important to
counter and combat new types of crimes that have emerged of late such as cyber crimes
which include data theft, harassing, breach of privacy and so and so forth. The major rape
and sexual assault cases such as the Shopian Rape Case, the Aruna Shanbaug Case,
Nirbhaya Rape Case, Priya Patel34, the Mathura Rape Case35, etc. all have had an effect on
the functioning of rape laws and their interpretations as well as reformations36 .Rape was
included in the Indian Penal Code, 1860 in its original form since 192437.
The Criminal Law (Amendment) Act, 2013 was a replacement of the Criminal Law
(Amendment) Ordinance, 201338. The Act was mandated to make change in the Indian IPC &
CrPC as well as the Indian Evidence Act. There was a rise in threats towards individual
privacy in the country39 and it was high time to include certain new crimes under the Indian
Penal Code in consonance with the passing of time. A new crime that was introduced and
was not provided for in the countrys earlier legislations was voyeurism which means the
recording or viewing images, movies or any such media material without the permission of
the person portrayed or screened in them would result in penal punishment. A voyeur is
defined as a person who derives sexual gratification from the covert observation of others as
they undress or engage in sexual activities.40 Voyeurism is a criminal act which creates
apprehension for society and is infringement of expectations of privacy that all citizens have
about their body which they do not wish to expose it to others41.
The inclusion of voyeurism as a crime under the Indian Penal Code has made sale of
pornography, invasion of privacy and all forms of sale of defamatory pictures as prohibited
and this has resulted in apprehension in minds of criminals.
Another very important change from previous legislations is the much required change in the
procedure of providing evidence in the court of law. After the Mathura rape case the outcry
did result in amendment of Section 114A of the Indian Evidence Act. This was done to
maintain that despite there being the lack of consent given by the women, there was often a
character assassination of the women at the court trials which was very unfortunate. Thus
there was a transition from earlier legislations and Section 53A of the Indian Evidence Act
was introduced making it explicit that in a trial where there was sexual assault or rape then
the evidence supplied relating to the victims previous sexual experience or even for a matter
of fact her character could not be admissible in the court of law. Still is unfortunate that the
character assassination of the victim continues in the society which increases the hurt
suffered by the victim.
On instances of rape or sexual assault cases the evidence concerning consent is often derived
on the basis of the past conduct of the woman which seems rather frivolous as at the instance
of the abuse she might not have consented thus constituting the criminal act. In earlier cases

34
Priya Patel v. State of Madhya Pradesh, AIR 2006 SC 2639
35
1979 AIR 185
36
http://www.bbc.co.uk/news/worldasiaindia
37
http://indiankanoon.org/doc/1279834/
38
Criminal Law(Amendment) Ordinance, 2013,
39
http://bit.ly/10nMSTT
40
Oxford English Dictionary
41
Lance Rothenberg, Rethinking Privacy: Peeping Toms, Video Voyeurs, and the failure of criminal law
to recognize a reasonable expectation of privacy in the public space, American University Law Review, 49,
1127

12
prostitutes could be raped and their right would not be protected as the victims previous
sexual experience and promiscuous character would always malign the proceedings and
create a bias in the judiciarys mind. The sole reason for this inclusion of this amendment was
to prevent the breach of privacy of the victims sexual history by preventing it to be included
as a piece of evidence in court. Thus unwarranted intrusion in the privacy of the victims life
should not be supported by members of the civil society. The new law protected defamation
of the woman and rights of the woman to live with dignity42.
Lastly and very importantly, there was also an introduction of sexual harassment at
workplace (under section 354 of the IPC in addition to the Sexual Harassment at Workplace
Act, 2013) and an enhanced definition of rape provided for in the amended law. The earlier
legislation had focused on coercion43 and the fear of death or hurt of someone close to
her44 as an example of force exerted or lack of consent when there was commission of rape.
Another example of deceit which culminated into the act of committing rape was commission
of false marriages45.

42
http://cis-india.org/internet-governance/blog/the-criminal-law-amendment-bill-2013
43
State of Maharashtra v. Prakash, AIR 1992 SC 1275: 1993 Supp (1) SCC 653
44
State of Himachal Pradesh v. Mango Ram, (2000) 7 SCC 224
45
Jayanti Rani Panda v. State of West Bengal, 1984 Cr LJ 1535

13
Conclusion

The Criminal Law (Amendment) Act, 2013 has been known all over as one of the most
concrete steps taken by the Indian government to curb violence against women. Major
amendments by the Act in the Indian Penal Code, not only widen the ambit of certain
offences but also recognises new offences like acid attacks which earlier lacked a specific
provision and definition in the Code.
The definition of rape has been amended to include not just peno-vaginal intercourse but the
insertion of an object or any other body part into a womans vagina, urethra or anus, and oral
sex. This responds to a longstanding demand of womens rights groups. The issue of rape by
different means was highlighted in the Delhi gang-rape case, where an iron rod was inserted
into the young womans body.

By widening the definition of rape and providing more severe punishment, it can be
observed that it was a result of feeling of retribution against offenders. There was so much
anger in society against those offenders which resulted into amendment in criminal law.
There is no doubt that rape and murder of nirbhaya was very brutal but the earlier law was
sufficient because the case already fallen under rarest of rare category provided by the
Supreme Court. There must be some justification for amendment but it seems in particular
Amendment Act, 2013, justification is lacking. One can observe that Criminal Law
Amendment Act, 2013, was a result of retribution only.
Other point is that the prime concern of law makers should be that whether in any particular
case or situation laws were insufficient or there was a failure of execution of laws. No law
should be changed overnight because there was some outrage in the society. It is very
important to note that in Delhi gang-rape case, there was gross violation on the part of the
executive authority by not registering FIR and leaving them naked on the road in cold night
despite there is law that registration of FIR is mandatory by the police and zero FIR provision
is also available in case of jurisdiction issue. But despite various guidelines and laws, attitude
of police authority is the same. For example if one has an injury in his hand, doctors are not
supposed to conduct surgery on his leg. It is same thing if there are problems in execution of
laws, law-makers cannot change laws under influence of public.

14
BIBLIOGRAPHY
Primary Sources

Statutes
1. INDIAN PENAL CODE, 1860.
2. INDIAN EVIDENCE ACT, 1872.
3. CODE OF CRIMINAL PROCEDURE, 1973.

Secondary Sources

Books

PSA Pillais Criminal Law (LexisNexis, New Delhi, 12st Edn.2014)

K D Gaur, Criminal Law Cases & Materials (LexisNexis, New Delhi, 8th Edn.2015)
Prof. T. Bhattacharya, The Indian Penal Code (Central Law Agency, Allahabad, 6th
Edn.2010)
Batuk Lal, The Law of Evidence (Central Law Agency, Allahabad, 21st Edn.2015)
Chief Justice M.Monir, Textbook on The Law of Evidence (Universal Law
Publishing, 10th Edn.2015)
Dr. S.R.Myneni, Jurisprudence(Legal Theory)(Asia Law House, Hyderabad, 2nd
Edn.2010)

Internet Sources

http://oll.libertyfund.org/titles/beccaria-an-essay-on-crimes-and-punishments.
http://la.utexas.edu/users/hcleaver/368/368BeccariaExcerpts.html.
http://lawnn.com/theories-punishment-kinds-punishment-criminal-law/
http://www.legalserviceindia.com/articles/pun_theo.htm
http://shodhganga.inflibnet.ac.in/bitstream/10603/45012/9/09_chapter%204.pdf
https://plato.stanford.edu/entries/justice-retributive/
http://www.preservearticles.com/2012050131633/notes-on-retributive-theory-of-
punishment.html
http://law.jrank.org/pages/9576/Punishment-THEORIES-PUNISHMENT.html

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