List of Current Affairs

Why in News?

Recently, the High Court of Madhya Pradesh in the case of Kailash Sharma v. State of MP & Ors., has quashed rape case and held that an adolescent in the age group of 17 or 18 years would be capable of making “conscious decisions regarding his or her well-being”.

Background

• The case was filed by a class XII student, aged 17 years and 10 months in the year 2022 against a 30-year-old man who committed sexual intercourse by threatening to make her obscene pictures viral and made a false promise of marriage.
• A petition was filed before the High Court under Section 482 of the Criminal Procedure Code, 1973 for quashing of the FIR registered under Sections 376, 506 of Indian Penal Code, 1860 as well as under Sections 3, 4 of Protection of Children from Sexual Offences Act, 2012.

Court’s Observations

• Justice Deepak Kumar Agarwal observed that the Court is looking into the physical and mental development of an adolescent of that age group and the Court would consider it logical that such a person is capable of making conscious decision as regard his or her well-being. Prima facie, it appears that there is no mens rea involved.
• The Court relied on Vijayalakshmi & Anr. v. State Rep. By. Inspector of Police, All women Police Station (2021) while making the observation.
• In this Case, the Madras HC held that the Protection of Children from Sexual Offences Act, 2012 (POCSO) does not intend to bring within its scope, cases involving adolescent teenagers in romantic relationships.

Legal Provisions

Section 376 of Indian Penal Code, 1860

• Section 376 provides the punishment for rape.
• The punishment for committing rape is rigorous imprisonment for ten years which may extend to Life Imprisonment and a fine.
• The offence under section 376 IPC is non-bailable and cognizable.
• The following amendments were made in Section 376 by virtue of the Criminal Amendment Act, 2018:
• The minimum punishment for rape of a woman was increased from 7 years to 10 years.
• Rape of a girl below the age of 16 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment.
• Section 376AB was inserted, which states that rape of a girl below the age of 12 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment or death penalty.
• Section 376DA was inserted, which states that in case of gang rape of a girl under the age of 16 years, the punishment will be of a life sentence.
• Section 376 DB states that in case of gang rape of a girl below the age of 12 years, the punishment will be life sentence or death.
• Section 375 of Indian Penal Code, 1860 defines rape and it includes all forms of sexual assault involving non-consensual intercourse with a woman.
• The provision, however, lays down two exceptions as well:
• Apart from decriminalizing marital rape, it mentions that medical procedures or interventions shall not constitute rape.
• Exception 2 of Section 375 of the Indian Penal Code states that “sexual intercourse by a man with his wife, and if the wife not being under fifteen years of age, is not rape”.

Section 506 of Indian Penal Code, 1860

• Section 506 of Indian penal code, 1860 prescribes punishment for the offence of criminal intimidation.
• It states that whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Criminal intimidation is defined in Section 503 of the Indian Penal Code,1860 as an offence committed in which an individual endangers or threatens another with harm to his person, reputation, or property in order to compel the other individual to do an act that he is not bound by law to perform.

Section 482 of the Criminal Procedure Code, 1973

Section 482 of the Criminal Procedure Code, 1973 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers.

POCSO Act, 2012

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• Section 3 of this Act deals with penetrative sexual assault and Section 4 prescribes punishment for penetrative sexual assault.
• Section 3- Penetrative sexual assault –

A person is said to commit “penetrative sexual assault if­

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

Section 4 - Punishment for penetrative sexual assault –

Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

Why in News?

• Recently, Bombay High Court has ordered the release of a 30-year-old man convicted in 41 theft cases and sentenced to over 83 years in prison.
• The court further added that and since he is not in a position to pay the fine, for non-payment of the fine amount, he would require to undergo imprisonment of further 10 years 1 month and 26 days i.e. a total of 93 years 5 months.
• The court was hearing a criminal writ petition of Aslam Salim Shaikh v. State of Maharashtra.

Background

• The petitioner filing through Legal Services Authority under writ jurisdiction and inherent powers plead that the sentences of imprisonment awarded different Courts, in 41 cases, run concurrently.
• The petitioner also requested the setting aside of the fine amount of Rs.1,26,400/-.
• He submitted that he was falsely implicated in these cases and, being illiterate and financially constrained, he pleaded guilty under the belief that he would be released for the period already served as an undertrial prisoner since December 2014.
• The High Court noted that the discretion under Section 427(1) of the Code of Criminal Procedure, 1973 (Cr.P.C) to run the sentences concurrently had not been exercised by the trial court.

Court’s Observations

• The court noted that the punishment is grossly disproportionate to the crime committed.
• A division bench of Justice Revati Mohite-Dere and Justice Gauri Godse emphasized that the chief goals of sentencing are deterrence and reformation, and in this case, such an excessive sentence would lead to a travesty of justice.

Punishment in Indian Penal Code, 1860

• Punishment is an undesirable or unpleasant outcome upon a group or individual imposed by an authority as a result of offence committed by the offender.
• According to Manu, “Penalty keeps the people under control, penalty protects them, penalty remains awake when people are asleep, so the wise have regarded punishment as a source of righteousness”.
• In the Indian Penal Code, 1860, Section 53, specifically deals with different types of punishments which can be given by the Criminal Courts if the person is held liable under the Code. There are five kinds of punishments recognized under Section 53 of the Code:
  • Death Penalty;
  • Imprisonment for life;
  • Imprisonment:
    • Rigorous Imprisonment; or
    • Simple Imprisonment.
  • Forfeiture of property;
  • Fine

Theories of Punishment

The five major theories of punishment are mentioned below:

1. Retributive:

• It is based on a doctrine of Lex talionis, which means ‘an eye for an eye’.
• Plato was a supporter of the retributive theory.

2. Deterrent:

• It aims to “deter” (prevent) the commission of crime again by punishing the criminal in such manner that it sets or establishes an example for the individuals or the whole society.
• According to Salmond, “The chief end of the law is to make the evildoer an example and a warning to all that are likeminded with him”.

3. Preventive:

• Preventive theory of punishment seeks to prevent prospective crimes by disabling the criminals either temporarily or permanently.
• The offenders are disabled from repeating the offences by such punishments as imprisonment, death, exile, forfeiture of office etc.

4. Reformative:

• It depends on the humanistic rule that regardless of whether a wrongdoer perpetrates a wrongdoing, he doesn’t stop to be a person.
• It states that the primary object of the punishment should be the reform of the criminal.

5. Compensatory:

• Its main object is to compensate the victim suffered by crime done by offender
• A criminal who had inflicted an injury against the person (or group of persons), or the property must compensate the victim.

Concurrent and Consecutive Sentencing

• Consecutive punishments refer to the scenario where a court gives sentence in two cases, second sentence will commence after the expiration of first sentence.
• Concurrent punishments mean that two punishments will be counted parallelly.
  • When two sentences are directed to run concurrently, they do merge into one sentence.
• Section 31(1) of the Cr.P.C., 1973 entrusts a discretion in the Court to direct that the punishment shall run concurrently when a person is convicted at one trial of two or more offences.
• Section 427 of the Cr. P.C., 1973 directs that one sentence takes effect after the other. The sentencing Court has the discretion of ordering a concurrency of punishments.

Why in News?

The Supreme Court has decided to hear a batch of petitions regarding the criminalization of marital rape by a three-judge bench.

Background

• The Karnataka High Court has on an earlier occasion held that a husband was liable to be charged for rape under the Indian Penal Code,1860 (IPC) if he has forcible sex with his wife.
• The Karnataka Government had supported the High Court judgment in an affidavit in the Apex Court subsequently.
• The Karnataka Government had recommended the removal of the exception for marital rape and proposed that the law should specify that “marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.
• The Apex Court thereafter put ad-interim stay on the Karnataka High Court's judgment in the matter of Hrishikesh Sahoo v. State of Karnataka & Ors SLP(Crl) 4063/2022 (2022).
• In another split verdict of Delhi High Court, Justice C. Hari Shankar in the matter of RIT Foundation v. UOI and other connected matters (2022) held that striking down marital rape exception will result in creation of new offence, appeal against which is pending before the Top Court.

Legal Provisions

• Marital Rape - Marital rape or spousal rape is the act of sexual intercourse with one's spouse without consent. The lack of consent is the essential element, and it need not involve physical violence.
• The provision of rape is defined under Section 375 of the Indian Penal Code, 1860 whereas the punishment for the same is provided by Section 376.
• Section 375 - Rape—A man is said to commit “rape” if he—
• (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
• (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
• (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
• (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions.
• First. —Against her will.
• Secondly. — Without her consent.
• Thirdly. —With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
• Fourthly. —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
• Fifthly. —With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
• Sixthly. — With or without her consent, when she is under eighteen years of age.
• Seventhly. —When she is unable to communicate consent.
• Explanation 1. —For the purposes of this section, “vagina” shall also include labia majora.
• Explanation 2—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
• The provision has two exceptions attached to it.
• Exception 1 - A medical procedure or intervention shall not constitute rape.
• Exception 2 - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape (This exception excludes marital rape from the ambit of Rape).
• In 2017, the Supreme Court in its landmark judgment of Independent Thought v. UOI, raised this age from 15 to 18 to bring our law in conformity with Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

Justice JS Verma Committee, 2012

• In the aftermath of the 2012 gang rape in Delhi, known as the Nirbhaya Rape Case Justice J.S. Verma was appointed as the chairperson of a three-member commission tasked with reforming rape laws in India.
• While some of its recommendations helped shape the Criminal Law Amendment Act passed in 2013, other suggestions, including that on marital rape, were not acted upon.
• Some of the reforms suggested in management of cases related to crime against women are:
• A Rape Crisis Cell should be set up.
• The Cell should be immediately notified when an FIR in relation to sexual assault is made. The Cell must provide legal assistance to the victim.
• All police stations should have CCTVs at the entrance and in the questioning room.
• A complainant should be able to file FIRs online.
• Police officers should be duty bound to assist victims of sexual offences irrespective of the crime’s jurisdiction.
• Members of the public who help the victims should not be treated as wrongdoers.
• The police should be trained to deal with sexual offences appropriately.
• The number of police personnel should be increased. Community policing should be developed by providing training to volunteers.

Criminalization of Marital Rape in Other Countries

• Poland was the first country to explicitly criminalize marital rape in 1932.
• Australia in 1976 was the first common law country to pass reforms and criminalize marital rape.
• Since the 1980's several common law countries have criminalized marital rape like South Africa, Ireland, Israel, Ghana etc.

International Convention regarding Marital Rape

• In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) suggested that India should end marital exemption.
• Article 1 of CEDAW states "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
• Although India is not a signatory to CEDAW, it is still obliged to protect women irrespective of their marital status under Article 2(f).
• Article 2 - State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
• (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.