The brutality of the Nirbhaya rape case shook the conscience of the nation in 2016. Protests broke out across the country, calling for a change in the legal framework governing sexual violence in India. The public unrest led to significant amendments in Indian criminal law that widened the understanding of crimes against women.
There have been two significant amendments to Indian rape laws. The first is the 1983 amendment, which was a consequence of a gruesome incident of rape by policemen. This amendment imposed longer prison sentences for instances of custodial rape. The second amendment came in 2013. On the recommendation of the Justice Verma Committee, this amendment criminalised crimes like acid attacks, gang-rapes, stalking and voyeurism, amongst other things. It also increased the minimum sentences in crimes such as rape, rape leading to the death of the victim, custodial rape, and child rape.
The 2013 amendment has deprived the judges of the discretion of reducing the sentence below the minimum prescribed limit. The punishment for non-aggravated rape cases is a minimum of seven years. For situations of aggravated instances of rape–including gang rape, rape leading to the death of victim and rape of a minor under the age of 12–the amendment imposes a minimum sentence of 20 years. The maximum punishment in these cases is capital punishment.
On an analysis of the judgements passed across courts in 2019, it is clear that the issue of ambiguity in sentencing is still prevalent. The quantum of punishment is often swayed by emotion and is contingent on the court, judge and other irrelevant factors such as sexual history, the conduct of the victim, marital status of the victim or accused, the relationship between the victim and accused, and the victim's chastity. The determination of the duration of the sentence is insufficiently linked to the nature of the crime.
In fact, in some instances, High Courts have reduced the sentence below the prescribed amount without providing any sufficient justification. For example, the Odisha High Court[1] reduced a 7-year sentence to 5 years and 6 months. The court justified the reduction in punishment by suggesting that a 7-year sentence would be detrimental to the career of the accused and that the victim would receive no added benefit or justice from an extra year of punishment for the perpetrator. Further, the Bombay[2] and Calcutta[3] High Courts have reduced sentences in instances of gang-rape to 14 years, despite a mandatory minimum of 20 years imposed by the law, with no justification.
While the High Courts irrationally reduces prison sentences, the Supreme Court has cracked down on instances of rape when the victim is less than 12 years old. Every such case before the Supreme Court in 2019 has either led to a sentence of life imprisonment or capital punishment. The determination is often arbitrary, with little reasoning given for the severity of the sentence. In effect, the Supreme Court has unilaterally raised the lower limit for the punishment of such crimes to life imprisonment. This change is in contradiction to the law, which prescribes a minimum sentence of 20 years.
There is also a lack of uniformity in the sentences in such cases. The irregularity is apparent on comparing the Monoharan v State case and the Vijay Raikwar v State of Madhya Pradesh case. Both incidents follow similar patterns. Both the victims were less than 12 years of age, and both victims died. However, in the first case, the court awarded a death penalty. On the contrary, in the second case, the court reduced the sentence of the High Court from a death penalty to that of life imprisonment.
The lack of uniformity causes a confusing legal framework wherein the decision of the court is unpredictable. This issue can only be resolved by ensuring adherence to a fixed standard to determine the severity of punishment. The Justice Malimath Committee, in a 2003 report on Reforms of the Criminal Justice System, highlighted the need for “sentencing guidelines” to ensure unambiguous sentencing. The report called for a statutory committee to lay down guidelines for sentencing. These guidelines would look at factors such as the nature of the offence, the mode of commission, the brutality of the crime, and the accused's depravity to establish the severity of punishment. The report suggests that this committee be comprised of a Supreme Court judge or a former High Court Chief Justice, and a public prosecutor, lawyer, police, social scientist and female representative.
Battling the arbitrariness in sentencing requires guidelines that are formulated by a specialised commission. Such an inter-disciplinary commission increases the possibility of striking the right balance between the rights of the accused and that of the victim. Moreover, by looking at crimes in isolation, one can better ensure uniformity in sentencing.
A law must be fair and impartial and the practice of sentencing is essential in ensuring this. The quantum of punishment directly affects an individual’s fundamental right to life and liberty. Hence, it is imperative to be cautious and ensure a consistent legal framework. This can only be achieved by maintaining uniformity across courts and courtrooms to assure that similar crimes are treated the same before the law.
Reference List:
[1] Santosh Routray v State of Odisha (2019) SCC OnLine Ori 409
[2] Ashabhai Kundalik Chate v State of Maharashtra (2019) SCC OnLine Bom 2004
[3] Y. Bijoy Bhaskar v. State of West Bengal (2019) SCC OnLine Cal 2096
The Indian Penal Code, 1860 (Act No. 45 of 1860).
The Criminal Law (Amendment) Act, 1983 (Act No. 43 of 1983).
The Criminal Law (Amendment) Act, 2013 (Act No. 13 of 2013).
Report of the Committee on Amendments to Criminal Law (2013). Government of India. New Delhi, commonly known as the “Justice Verma Committee”.
Report of the Committee on Reforms of Criminal Justice System (2003). Government of India. Bangalore, commonly known as the “Justice Malimath Committee”.
Ashabhai Kundalik Chate v. State of Maharashtra (2019) SCC OnLine Bom 2004.
Babu v. State of Rajasthan 1984 Cri.L.J. 74.
Kalua v. State of Uttar Pradesh (2019) SCC OnLine All 4271.
Manoharan v. State (2019) 7 SCC 716.
Mukesh v. State (NCT of Delhi) (2017) 6 SCC1.
Ravi v. State of Maharashtra (2019) 9 SCC 622.
Ravishankar v. State of Madhya Pradesh(2019) 9 SCC 689.
Santosh Routray v. State of Odisha (2019) SCC OnLine Ori 409.
Tukaram and Anr. v The State of Maharashtra AIR 1979 SC 185
Vijay Raikwar v. State of Madhya Pradesh (Criminal Appeal No. 1112 of 2015).
Bijoy Bhaskar v. State of West Bengal (2019) SCC OnLine Cal 2096.
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Satish, M. (2018). Virginity and Rape Sentencing. The Times of India. Accessed on 16 January, 2020 from https://nludelhi.ac.in/UploadedImages/7c23fbec-6b60-4587-a0b3-2c999bdd996a.pdf.
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