Nirbhaya: How Nirbhaya's case changed India's rape laws

December 16, 2022 marks the 10-year anniversary of the gang rape and death of a young medical student in a bus travelling through the heart of Delhi. The Nirbhaya case marked a watershed moment, resulting in conversations across the country spotlighting the inefficacy of the then laws in India for combating violence against women. A collective outpouring of grief and anger at the barbaric commission of the crime led to fierce protests and demands for change. This also prompted a three-judge Supreme Court bench to unanimously uphold the judgment of the Delhi court, which awarded death penalty to four out of the five accused in the case, on the grounds that the nature of the crime met the “rarest of the rare” threshold for awarding death sentences. medium96249015The fifth accused — a minor at the time of commission of the offence — was directed to a correction home for three years. However, the immediate aftermath of the Nirbhaya incident also resulted in sweeping changes to laws pertaining to violence against women in the country.The legal framework in 2012 The Nirbhaya case was not the first such instance of a barbaric act of sexual violence against women that shocked the nation leading to changes in legislation. The Criminal Law (Second Amendment) Act, 1983 was passed on December 25, 1983 in response to the outcry surrounding the aftermath of Tuka Ram & Anr v State of Maharashtra (the Mathura rape case), where a young girl was raped by two police officers inside a police station while being required to record statements, following a complaint of kidnapping being filed against her husband. The Supreme Court’s acquittal of the accused persons in the Mathura case, on the grounds of absence of evidence to prove the absence of consent, led to four major changes to the rape law framework in India through the 1983 amendment: 1) Section 114A of the Evidence Act added a presumption of non-consent where the victim stated that she had not consented to sexual intercourse2) Section 376 of the Indian Penal Code (IPC) was amended to include punishment for custodial rape (Sections 376A-376D)3) The accused was to bear the burden of proof 4) The need to protect the victim’s identity was recognised through provisions for in-camera trials [Section 327(2) of the Criminal Procedure Code, or CrPC] and prohibitions on disclosure of identity without the consent of the victim (Section 228A, IPC) !function(){"use strict";window.addEventListener("message",(function(e){if(void 0!==e.data["datawrapper-height"]){var t=document.querySelectorAll("iframe");for(var a in e.data["datawrapper-height"])for(var r=0;r Criminal Law (Amendment) Act, 2013The outrage sparked by the Nirbhaya incident in 2012 eventually led to the setting up of a three-member committee headed by Justice JS Verma, former Chief Justice of India, to re-examine the criminal law framework and its role in continuing to allow for significant crimes against women cases. The Verma Committee submitted its report on January 23, 2013, recommending wide-ranging further amendments particularly with regard to provisions for quicker trial and enhanced punishments. A Nirbhaya Fund was also later set up to increase financial support for women’s safety, through the instalment of CCTV cameras in public places, monitor women’s safety during public transportation, and create one stop centres for "integrated support services including police facilitation, medical aid, legal and psycho-social counselling and temporary shelter".For various offences, laws were expanded to include changes:a) The definition of ‘rape’ was expanded to include non-consensual, non-penetrative acts (Section 375, IPC). Punishments were enhanced for acts causing death or permanent vegetative state (Section 376A, IPC), sexual intercourse by the husband during separation (376B), sexual intercourse by a person in authority (376C), gang rape (376D) and for repeat offenders (376E). Additional sexual offences were inserted into the IPC, including sexual harassment (354A), assault or criminal force with the intent to disrobe women (354B), voyeurism (354C) and stalking (354D).b) Additional provisions were added to make ‘acid attack’ and attempt to throw acid a punishable offence (Sections 326A and 326B, IPC).c) Public servants (Section 166A, IPC) and hospital management/staff (16B) were to be held liable for failure to conduct an investigation/register an FIR or to provide proper treatment free of cost, respectively (as required by Section 357C, CrPC).d) To protect victims from ‘re-victimisation’ during the trial, provisions were included to allow recording of statements to be done by a female police officer or at their residence/convenient place in the presence of an interpreter for a mentally/physically disabled victim (Sections 154 and 161, CrPC).e) Statements made to a magistrate under Section 164, CrPC were to be considered in lieu of requiring victims to once again record statements at the time of examination-in-chief which could then be cross-examined during the trial (Section 164, CrPC).f) Appropriate steps were to be taken to ensure that victims, particularly women younger than 16 years, would not be confronted by the accused (Section 273, CrPC).g) No sanction from government authorities was to be needed for prosecuting public servants, magistrates, and judges (Section 197, CrPC). The timelines for completing inquiry and trial were to be shortened to a period of two months from the date of the charge-sheet for sexual offences (Section 309).h)The character/previous sexual experiences of the victim was to be considered irrelevant for evidence of consent (Section 53A, Evidence Act) and could not be asked during cross-examination (Section 146, Evidence Act).i) Absence of consent was to be presumed in cases of aggravated rape (Section 114A, Evidence Act).j) Protection of Children from Sexual Offences Act (POCSO), 2012: The POCSO Act specifically deals with cases pertaining to sexual offences against victims younger than 18 years, and creates its own categories of offences and punishments as well as fast-track procedures through special courts Amendments in later years Although the legal framework for protection of victims was sought to be strengthened through these amendments, multiple heinous acts of violence against women continue to persist. Two horrifying incidents in 2017 and 2018, in Unnao, Uttar Pradesh and Kathua, Kashmir respectively, rose to public attention. Further protests led to the Criminal Law (Amendment) Act, 2018. The 2018 amendments resulted in harsher punishments for cases of rape and sexual assault (Section 376, IPC), particularly with regard to offences against minors (Sections 376AB, 376DA and 376DB). Timelines for speedy disposal of cases were also shortened [in Sections 374(4), 377(4), 438(4), 439(a)(1), CrPC].Why challenges persist Legislative amendments are one of the most impactful drivers of social change. However, 10 years after the Nirbhaya incident, sexual offences, particularly against women, continue to pose serious challenges. Crime rates against women have significantly increased over the last decade. In particular Delhi, which has consistently been ranked the most unsafe city for women by the National Crime Records Bureau with 13,892 violence against women cases being reported in 2021. Additionally, the central government had noted earlier in 2022 that only two-thirds of the total amount allocated under the Nirbhaya Fund had actually been disbursed to relevant departments. medium96249875The present criminal law framework, although supported by ambitious ideals, has the scope to be even more progressive and allow for real societal change. This could be achieved through adoption of steps such as the following: 1) Certain recommendations by the Justice Verma Committee, which were not incorporated in the 2013, or even the 2018 amendments, could be re-examined. This includes the ongoing discussions about criminalising marital rape, and barring politicians accused of sexual offences from contesting elections. 2) The 2013 amendment, which introduced the death penalty in ‘rarest of the rare’ cases of rape and sexual assault, has failed to have a deterrent effect. The Justice Verma Committee had anticipated this result, and suggested 20 years' imprisonment as a punishment. Merely passing the death penalty in certain cases would not truly tackle the scourge of rape in society, particularly when it has been shown through studies by organisations such as Project 39A that most offenders on death row face prolonged periods prior to a possible pardon by the president/governor, and that these punishments are often passed without due consideration of mitigating factors. Additional steps must be taken to ensure trial, punishment, and possible graded rehabilitation of offenders.3) Presently, the criminal law framework pertaining to sexual violence is gendered. Legislative protection must be given to ensure a gender-neutral protection for victims of sexual violence belonging to communities other than cis-women.The writer is research fellow with the Justice, Access, and Lowering Delays in India (JALDI) Initiative at the Vidhi Centre for Legal Policy, Bengaluru