Introduction

• Under Indian Penal Code, 1860 (IPC) the offence of rape is provided for under Chapter XVI which is “Offences affecting Human Body”.  
• The Bhartiya Nyaya Sanhita, 2023 (BNS) provides for the offence of rape under Chapter V which is “Offences against Woman and Child”.    
• There have been Amendments in Rape laws by way of 1983, 2013 and 2018 Criminal Law Amendment Acts.  
• Most of these provisions have been retained in Bharatiya Nyaya Sanhita, 2023 (BNS). 

Criminal Law (Second Amendment) Act, 1983 

• Impetus 
  • The impetus for this Amendment was the infamous Mathura case that created the uproar in the country. 
  • The incident pertained to the rape of a woman in the police station. 
  • This incident resulted in the case of Tukaram v. State of Maharashtra (1972).  
  • The Sessions Court in this case acquitted the police officers on the ground that there was a difference between sexual intercourse and rape and also it was held by the Court that the consent was voluntary as she was a “habituated of sexual intercourse”. 
  • The High Court, however, reversed this verdict and held that the consent here was passive consent as a result of fear and hence no consent in the eyes of law. 
  • However, the Supreme Court acquitted the accused on the grounds that the there were no marks of injury on the girl and hence the offence of rape was not committed. 
• Changes in IPC by way of Amendment Act, 1983 
  • Section 228 A of IPC: This provides for prohibition of disclosure of identity of victim of offences related to rape. If this is done by any person he would be liable to punishment of imprisonment of term of 2 years and fine.  
  • Section 375 of IPC which increased the scope of the definition of rape.  
  • Section 376 of IPC which provided for punishment for rape. 
  • Section 376 A of IPC: Intercourse of a man with his wife during separation. 
  • Section 376 B of IPC: Intercourse by public servant with a woman in his custody 
  • Section 376 C of IPC: Intercourse by Superintendent of jail, remand house etc. 
  • Section 376 D of IPC: Intercourse by any member of the management or staff of a hospital with any woman in that hospital. 
• Changes in Criminal Procedure Act, 1973 (CrPC) 
  • Section 327 (2) & Section 327 (3) 
    • These provisions provide for in camera proceedings in cases of rape and also prevents the printing or publication of any matter in relation to such proceedings.  
  • Changes in Indian Evidence Act, 1872 (IEA) 
    • Section 114 A which provides for presumption of absence of consent in the cases related to rape was added.

Criminal (Amendment) Act, 2013

• Impetus 
  • These amendments were a result of the gruesome Nirbhaya gang rape in the year 2012. 
  • Following the protest there were protests and agitations all over India. This led to the setting up of Retired Hon’ble Justice J.S. Verma Committee. 
  • Based on this report the Criminal (Amendment) Act, 2013 came into force on 3rd February 2013.  
• Changes in IPC  
  • Section 166 A of IPC: This provides for punishment to the public servant in case he fails to record the information under Section 154 of CrPC with respect to offences of rape as well as certain other offences. 
  • Section 166 B IPC: This provides for punishment for non-treatment of victim   of rape.  
  • Section 376 A IPC: Punishment for causing death or persistent vegetative state due to rape. 
  • Section 376 B IPC: Sexual intercourse by Husband on his wife during separation. 
  • Section 376 C IPC: Sexual Intercourse by a person in authority 
  • Section 376 D IPC: Gang Rape 
  •  Section 376 E IPC: Punishment for repeat offenders 
• Changes in CrPC 
  • Section 154 (1) CrPC: Information relating to sexual offences against women including the offence of rape shall be recorded by a female police officer. 
  • Section 161 CrPC: The statements may be recorded may be audio video recorded and the statement of a victim of rape or a victim of sexual assault shall be recorded by a woman police officer. 
  • Section 164 (5A) CrPC: The Judicial Magistrate shall record the statement of the victim for offences related to rape as soon as the offence is committed. 
  •  Section 197 CrPC: No sanction is required in cases of sexual offences.  
  • Section 198B CrPC: In case of offence under Section 376 B IPC cognizance shall be taken only upon complaint filed by the wife against the husband.  
  • Section 309 CrPC: Where the inquiry or trial related to rape it shall be completed within 2 months from the date of filing of charge sheet.  
  • Section 357 B CrPC: The Compensation paid shall be in addition to fine paid under Section 376 D IPC.  
  • Section 357C CrPC: This provides for immediate first aid to the victims of the offence of rape. Also, the medical practitioner has to immediately inform the police regarding such incident.   
• Changes in IEA 
  • Section 53 A of IEA: Where the question of consent is in issue the evidence of character of the victim or previous sexual experience shall not be relevant. 
  • Section 114 A of IEA: this Section provides that in certain prosecution there shall be presumption of absence of consent if the victim states in her evidence before the Court.  
  • Section 146 of IEA: This Section provides for question that would be lawful in cross- examination. The Amendment added in this provision that where the consent of victim is the issue neither evidence nor questions in cross examination can be put to the victim, regarding her immoral character or her previous sexual experience. 

Criminal (Amendment) Act, 2018 

• Impetus 
  • Post Nirbhaya there were two other gruesome incidents Unnao Rape case, Kathua rape case which shook the conscience of the society. 
  • The amendments made in 2018 provided for stricter punishments when the offence of rape is committed against minors. 
• Changes in IPC 
  • Section 376 of IPC:  
    • Amendment was made in (a) in sub section 1 of Section 376 which provided that punishment shall not be less than 10 years which may extend to life imprisonment.   
    • Section 376 (3) was added which provided that whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine  
  • Section 376 AB of IPC: Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death. 
  • Section 376 DA of IPC: Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine. 
  • Section 376 DB of IPC: Where a woman under twelve years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death
    
• Changes in CrPC 
  • Section 374 (4) was added which provided that when an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal. 
  • Section 377 (4) was added which provided that When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal. 
  • Section 438 (4) was added which provided that nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code. 
  • Section 439 (a)(1) was added which provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application. 
  • Section 439 (1A) provided that the presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code. 
• Changes in IEA 
  • Section 53 A and Section 146 of IEA were amended to include the new provisions added by 2018 amendment. 

Bharatiya Nyaya Sanhita, 2023 (BNS) 

• In BNS the definition for “rape” is provided under Section 63.  
  • It is to be noted that Section 63 of BNS is a reproduction of Section 375 of IPC. The only difference is with respect to Exception 2 which provides that Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.  
  • Earlier, Exception 2 to Section 375 of IPC provided that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.  
• Section 64 of BNS provides for punishment of rape. 
  • Clause (1) and (2) of this Section are a reproduction of Section 376 (1) and (2) of IPC.  
• Section 65 of BNS provides for punishment of rape. 
  • Section 65 (1) is a reproduction of Section 376 (3) of IPC which provides for punishment of rape of a woman less than 16 years. 
  • Section 65 (2) is a reproduction of Section 376 AB of IPC which provides for rape of a woman under twelve years of age. 
• Section 66 of BNS provides for punishment for causing death or persistent vegetative state of a victim. This is a reproduction of Section 376A of IPC. 
• Section 67 of BNS provides for sexual intercourse by husband upon his wife during separation. This is a reproduction of Section 376 B of IPC.  
• Section 68 of BNS provides for sexual intercourse by a person in authority. This is the reproduction of Section 376 C of IPC. 
• Section 69 of BNS is a newly introduced provision. This provision provides for punishment when sexual intercourse is committed by employing deceitful mneans etc. 
  • Section 69 of BNS provides Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. 
  • Explanation.—“deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.  
• Section 70 of BNS provides for the offence of gang rape. 
  • Section 70 (1) is a reproduction of Section 376D of IPC. 
  • Section 70 (2) provides for the offence of gang rape on a woman less than 18 years of age. It is to be noted that Section 376DA and Section 376DB of IPC do not find any place in the BNS. Instead, this provision has been added. 
• Section 71 of BNS provides for punishment for repeat offenders. This is a reproduction of Section 376 E of IPC. 
• Section 72 of BNS provides that the identity of victim in rape cases shall not be disclosed. This is a reproduction of Section 228A of IPC.  

Conclusion 

Since the inception of IPC there have been three Criminal (Amendment) Acts to counter the increasing cases of rape in our country. All the three amendments were a result of heinous crimes against women. Thus, their aim was to create a deterrence and to provide a safer environment for women. Most of the provision relating to rape that were there in IPC have been retained in BNS.