Updated: Nov 27, 2021
Law is never stagnant and it keeps on changing according to the needs and wants of the society. Transmutation of law is as important as freedom in democracy. With the passage of time and change in time a law of a country has to develop its wings. As for any civil society the society demands for more strict and vigilant laws in difficult times, but the strictness and the amount of punishment, while drafting the law , depends upon the need of the society. The comprehensive and holistic approach is required to make some modification to the penal code. As far as punishment for sexual offences are concerned in India, Macaulay, the architect of the Indian penal code had specifically mentioned that the good code should have three qualities that is precision (free from ambiguity), comprehensibility (easily understandable to ordinary people) and a product of legislature law making (least judicial intervention).
However, judicial pronouncement in recent times runs anti thesis to the policy of Lord Macaulay. The criminal law (amendment) Bill, has been made in order to work on the place of criminal law (amendment) ordinance, 2018, it was started and came into force after the heart wrenching rape incident of Kathua and Unnao. The bill of criminal law (amendment) covers the almost same amendments as it was mentioned in the ordinance. The ordinance was taken into the bad picture and known as “red herring”. The mistake was that the conviction rate in rape cases is less. The Law only increases the punishment but did not confirm the conviction rat
MODIFICATIONS IN IPC BY CLAA,2018.
The criminal law (amendment) act parted amendments in IPC in two directions; starting with, it modified the existing provisions and after words it added new provisions of law. When we talk about rape in India, It has been defined under section 375 of Indian Penal Code and its punishment was defined under article376 of Indian Penal Code. Before the amendments under IPC by CLAA, 2018, maximum punishment for rape was 7 years or life imprisonment but after the new provision inserted in the law it has been changed to maximum 10 years or life imprisonment. This amendment surely has brought new wave in the sea of rape culture in India. CLAA, 2018, was a strong step towards the strong enforcement in India. It also installed some new criminal offences named as section 376AB (9) which specifically deal with minor below 12 years of age who has been raped, 376BA, it deals with the punishment which extended to 20 years and may also extend to life imprisonment and maximum sentence is to that death. Whereas Section 376 DA(10) and 376BD(11)in IPC, 1860, deals with the offence of gang rape with a minor below 16years of age and 12 years of age respectively. Section 376DA had promulgated a mandatory life sentence for the one who had committed the gregarious offence o gang rape with a minor woman. These provision marks serious gradation in the matter of severity and punishment when it comes to raping minors in India.
The criminal law (amendment) act has made some progressive provision in the domain of compensatory jurisprudence. All the provision under CLAA, 2018, Related to the offence of rape with a minor woman provide for compulsory compensation to the victim. This amendment act is like sunrise, which helps women to see the ray of hope for many girls who have found themselves in the darkness. India has been witnessing many brutal rape cases, which has changed the history for girls, so introduction of such acts should be done way before now because the culprits or the people with such monstrous mind has crossed the line so much that they can’t even see the line from where they have reached, it’s a dot now. Creating a limit is very essential for India because according to facts and data India recorded 33% of rape cases per Lakh population.
While studying about the punishment for the offence of rape with a minor woman, the “Justice Verma committee (2013)”, expressed on whether death penalty should be awarded. The Committee then acknowledged that the law should be proportionate and should be equal by keeping in mind that the offender should not flee away from the punishment at any cost. And long debates took place on the topic that whether imposing or granting death penality to the offender might take away any individual’s guts to commit such heinous crimes and may also helps in reducing the incidents of rape in the country. Further, awarding and granting death sentence to the culprits of the rape might turn out to be the retributive justice for the rape victim and only then culprit could taste the flavor of pain they has given to the victim and their family.. Over the years, various court judgments have given the application of death penalty to the ‘rarest of rare’ cases and issued classification and blank boxes to check whether the accused deserves a death penalty as a punishment or he deserves a second chance to rebuilt himself as a better person.. This implies that courts can award death sentence for rape only in exceptional cases, which includes where the reformation and rehabilitation of convict is not possible and where, there is no scope of improvement or the nature of and the gravity of offences also decides whether to award the accused with the death penalty.
According to government data around 35,000 cases were reported in 2017-18. Which means 90 rapes per day. Law of any country is to maintain all the rules and regulations, to maintain peace, to let justice prevail in the society. That is why law is never rigid, it has flexible approach. It keeps on molding itself according to the desire of the society. The criminal law is one of the most important links between the offence and its punishments. With the incoming of criminal law (amendment) act, 2018, the provisions relating to all kind of rapes including gang rapes in India has been made more strict and tight and trying to curb down the uprising trend of rape in India. As per section 53A and section146 of The Indian Evidence Act, 1872, while deciding whether the consent of the person or victim should be disregarded or not then it was decided that no question would be raised on legality of consent as it doesn’t matter in the case of a consent. Therefore, The Criminal Law of (Amendment) act, 2018, has been widely known for bringing more strict laws and provision in the matter of rape against a women, it fails to deliver only in one situation when it comes to sectio114A of The Indian Evidence act, 1872. Talking about legislature should take more strict steps and should act responsibly while adding or eliminating
Any provision from law especially, when it comes to serving the best justice to the people. Filling up the particular lacuna should be the top most priority for the legislature to make the law more water tight for the offender. After this issue society came into direct conflicts with the system. The society as a whole wanted to end this rape culture in India and didn’t want to tolerate patronizing of rape in India.
 Report of the committee on the amendment to the criminal law, 2013, January 23, 2013.  Report no. 35: capital punishment, law commission of India, September 1967.  Bachan Singh V State Of Punjab(1980) 2 SCC 684.  Macchi Singh V State of Punjab (1983) 3 SCC 470.