Jurisprudence Project

On-

‘CRIMINAL LAW AMENDMENT 2013 & THEORIES

OF PUNISHMENT’

Submitted To:-

Dr. Azim Khan B. Pathan

(Assistant Lecturer, Jurisprudence)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Submitted By:-

Rajkamal
Semester 5th
Roll No. 106
Section ‘B’
 ACKNOWLEDGEMENTS
This research venture has been made possible due to the generous co-operation of various
persons. To list them all is not practicable, even to repay them in words is beyond the domain of
my ability.
I would sincerely like to thank my Jurisprudence Lecturer Dr. Azim Khan B. Pathan for giving
me this topic and guiding me throughout the project. Through this research project I have
learned a lot about the aforesaid topic and this in turn has helped me grow as a student.

My heartfelt gratitude also goes out to the staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a source of great help in the
completion of this project. I also thank my friends for their precious inputs which have been very
helpful in the completion of this project.

This Project is a result of extensive and thorough compilation and crosscheck. However, if some
printing errors might have crept in, which are deeply regretted. I would be grateful to receive
comments and suggestions to further improve this project report.
: Rajkamal
 TABLE OF CONTENTS

CRIMINAL LAW AMENDMENT 2013 & THEORIES OF PUNISHMENT

 INTRODUCTION TO THE SUBJECT TOPIC:

4
 RESEARCH METHODOLOGY: 5
 OBJECTIVES:
5
 1. REASON BEHIND THE CRIMINAL LAW AMENDMENT 2013
6
 2. THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013 7-11
Key Issues and Analysis…
Changes in law…
Criticisms…
 3. THE CRIMINAL LAW (AMENDMENT) ACT, 2013 12-13
Object…
Amendments…
 4. THEORIES OF PUNISHMENT 14-17
Features…
Theories…
 5. RELEVANCE WITH THE CRIMINAL LAW AMENDMENT, 2013
18
 CONCLUSION
19
 REFERENCES 20
 Introduction to the Subject Topic:

The Criminal Law (Amendment) Act, 2013 is an Indian legislation passed by the Lok Sabha on 19
March 2013, and by the Rajya Sabha on 21 March 2013, which provides for amendment of Indian
Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual
offences. The Bill received Presidential assent on 2 April 2013 and deemed as to come into force
from 3 February 2013. It was originally an Ordinance promulgated by the President of India,
Pranab Mukherjee, on 3 February 2013, in light of the protests in the 2012 Delhi gang rape case.
Also, the Act is a radical expression of the fifty-seventh session of the Commission on the Status
of Women held at the United Nations Headquarters, New York, March 04-15, 2013 1 as both the
interventions focus on VAW with particular emphasis on women’s safety and security.

1
http://esango.un.org/
 Research Methodology

“Research is a systematized effort to gain new knowledge”.

-Redman and Mory.

This research is descriptive and analytical in nature. The researcher has followed the doctrinal
method for research purposes. Secondary and Electronic resources have been largely used to
gather information and data about the topic.

Books and other reference have been primarily helpful in giving this project a firm structure.
Websites, dictionaries and articles have also been referred. Literature review has been done
extensively in order to make a comprehensive presentation. Electronic media, i.e. the Internet
also has been one of the main sources of research. Footnotes have been provided wherever
needed, to acknowledge the source.

OBJECTIVES

1. To study the Criminal Law Amendment 2013.

2. To study the reasoning behind the Criminal law Amendment 2013.
3. To study about the theories of punishment.
1. REASON BEHIND THE CRIMINAL LAW AMENDMENT 2013
“Every cloud has a silver lining,” or so it is said, and the Nirbhaya tragedy had its own silver
lining. The incident generated international coverage and was condemned by the United Nations
Entity for Gender Equality and the Empowerment of Women 2, who called on the Government of
India and the Government of Delhi “to do everything in their power to take up radical reforms,
ensure justice and reach out with robust public services to make women’s lives more safe and
secure”.3 On 22 December 2012, a judicial committee headed by J. S. Verma, a former Chief
Justice of India, was appointed by the Central government to submit a report, within 30 days, to
suggest amendments to criminal law to sternly deal with sexual assault cases. The Committee
submitted its report after 29 days on 23 January 2013, after considering 80,000 suggestions
received by them during the period from public in general and particularly eminent jurists, legal
professionals, NGOs, women’s groups and civil society. The report indicated that failures on the
part of the Government and Police were the root cause behind crimes against women. Major
suggestions of the report included the need to review AFSPA 4 in conflict areas, maximum
punishment for rape as life imprisonment and not death penalty etc.

The Cabinet Ministers on 1 February 2013 approved for bringing an ordinance, for giving effect
to the changes in law as suggested by the Verma Committee Report.5 The ordinance was
subsequently replaced by a Bill with numerous changes, which was passed by the Lok Sabha on
19 March 2013.

2
To read more: http://www.unbrussels.org/agencies/un-women.html
3
Stenhammer, Anne F. (20 December 2012). "UN Women condemns gang rape of Delhi student" (Press release)
UN Women. Retrieved 21 December 2012
4
To read more: http://indianarmy.nic.in/Site/RTI/rti/MML/MML_VOLUME_3/CHAPTER__03/457.htm
5
To read more: http://ibnlive.in.com/news/read-highlights-of-justice-verma-committee-report/317376-3.html
 2. THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013

This new Act has expressly recognized certain acts as offences which were dealt under related
laws. These new offences like, acid attack, sexual harassment, voyeurism, stalking have been
incorporated into the Indian Penal Code:

Sectio
Offence Punishment Notes
n

Imprisonment not less than ten

years but which may extend to
imprisonment for life and with
326A Acid attack fine which shall be just and Gender neutral
reasonable to meet the medical
expenses and it shall be paid to
the victim

Imprisonment not less than five

Attempt to years but which may extend to
326B Gender neutral
Acid attack seven years, and shall also be
liable to fine

354A Sexual Rigorous imprisonment up to five i. physical contact and advances

harassment years, or with fine, or with both in involving unwelcome and
case of offence described in explicit sexual overtures; or
clauses (i) & (ii)
 ii. a demand or request for sexual
favors; or

iii. making sexually colored

Imprisonment up to one year, or remarks; or

with fine, or with both in other iv. forcibly showing pornography;

cases or

v. Any other unwelcome physical,

verbal or non-verbal conduct of
sexual nature.

Act with Assaults or uses criminal force to any

Imprisonment not less than three
intent to woman or abets such act with the
354B years but which may extend to
disrobe a intention of disrobing or compelling
seven years and with fine.
woman her to be naked

In case of first conviction,

Watching or capturing a woman in
imprisonment not less than one
“private act”, which includes an act of
year, but which may extend to
watching carried out in a place which,
three years, and shall also be
in the circumstances, would reasonably
liable to fine, and be punished on
be expected to provide privacy, and
a second or subsequent
354C Voyeurism where the victim’s genitals, buttocks or
conviction, with imprisonment of
breasts are exposed or covered only in
either description for a term
underwear; or the victim is using a
which shall not be less than three
lavatory; or the person is doing a
years, but which may extend to
sexual act that is not of a kind
seven years, and shall also be
ordinarily done in public.
liable to fine.

354D Stalking Imprisonment not less than one Only for women. TO follow a woman
year but which may extend to and contact, or attempt to contact such
three years, and shall also be woman to foster personal interaction
 repeatedly despite a clear indication of
disinterest by such woman; or monitor
the use by a woman of the internet,
email or any other form of electronic
communication. There are exceptions
liable to fine
to this section which include such act
being in course of preventing or
detecting a crime authorized by State
or in compliance of certain law or was
reasonable and justified.

Key Issues and Analysis…

 Under the Ordinance, penalties for certain offences are inconsistent. For instance,
minimum punishment for gang assault by private persons is 20 years, and for gang
assault by a police officer is 10 years.

 The Ordinance penalizes certain acts which are also punishable under special laws such
as SC/ST (Prevention of Atrocities) Act, 1989. Punishments under the Ordinance are
higher than under these laws.

 The ordinance specifies same punishment for penetration and non-penetration. It does not
provide for gradation of penalties on the basis of degree of offences.

 The Bill and the Ordinance exempts un-consented penetration or touching of private
parts for medical purposes from punishment.

 Age of consent has been increased from 16 to 18 years. There is a divergent view among
various commissions on the age of consent.

 Marital sexual assault upon a woman is not an offence. This is at variance with the
recommendation of certain commissions.

Changes in law…
 Section 370 of Indian Penal Code (IPC) has been substituted with new sections, 370 and
370A which deal with trafficking of person for exploitation. If a person (a) recruits, (b)
transports, (c) harbors, (d) transfers, or (e) receives, a person, by using threats, or force,
or coercion, or abduction, or fraud, or deception, or by abuse of power, or inducement for
exploitation including prostitution, slavery, forced organ removal, etc. will be punished
with imprisonment ranging from at least 7 years to imprisonment for the remainder of
that person’s natural life depending on the number or category of persons
trafficked. Employment of a trafficked person will attract penal provision as well.

 The most important change that has been made is the change in definition of rape under
IPC. Although the Ordinance sought to change the word rape to sexual assault, in the Act
the word ‘rape’ has been retained in Section 375, and was extended to include acts in
addition to vaginal penetration. The definition is broadly worded with acts like
penetration of penis, or any object or any part of body to any extent, into
the vagina, mouth, urethra or anus of another person or making another person do so,
apply of mouth or touching private parts constitutes the offence of sexual assault. The
section has also clarified that penetration means “penetration to any extent”, and lack of
physical resistance is immaterial for constituting an offence. Except in certain aggravated
situation the punishment will be imprisonment not less than seven years but which may
extend to imprisonment for life, and shall also be liable to fine. In aggravated situations,
punishment will be rigorous imprisonment for a term which shall not be less than ten
years but which may extend to imprisonment for life, and shall also be liable to fine.

 A new Section, 376A has been added which states that if a person committing the offence
of sexual assault, “inflicts an injury which causes the death of the person or causes the
person to be in a persistent vegetative state, 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 the remainder of that person’s natural life, or
with death.”In case of “gang rape”, persons involved regardless of their gender shall be
punished with rigorous imprisonment for a term which shall not be less than twenty
years, but which may extend to life and shall pay compensation to the victim who shall
be reasonable to meet the medical expenses and rehabilitation of the victim. The age of
 consent in India has been increased to 18 years, which means any sexual activity
irrespective of presence of consent with a woman below the age of 18 will
constitute statutory rape.

 Certain changes has been introduced in the CrPC and Evidence Act, like the process of
recording the statement of the victim has been made more victim friendly and easy but
the two critical changes are: 1. The ‘character of the victim’ is now rendered totally
irrelevant, and 2. There is now a presumption of ‘no consent’ in a case where sexual
intercourse is proved and the victim states in the court that she did not consent.

Criticisms…

The Criminal Law (Amendment) Ordinance, 2013 has been strongly criticized by several human
rights and women’s rights organizations for not including certain suggestions recommended by
the Verma Committee Report like, marital rape, reduction of age of consent, amending Armed
Forces (Special Powers) Act so that no sanction is needed for prosecuting an armed force
personnel accused of a crime against woman. The Government of India, replied that it has not
rejected the suggestions fully, but changes can be made after proper discussion.6

Several provisions under the Act differ from the provisions in the ordinance. Under the Act,
unlike in the Ordinance, the terms or watches or spies on a person in a manner that results in a
fear of violence or serious alarm or distress in the mind of such person, or interferes with the
mental peace of such person are not included as a part of the offence of stalking. Hence, the
offence is limited to the physical act of following or contracting a person, provided that there has
been a clear sign of disinterest, or to monitoring the use by a woman of the internet, email or any
other forms of electronic communication.

6
To read More:
http://www.atimysore.gov.in/workshops/wppts/gender_issues/crim_law_amnd_2013_drjagadeesh_jsslaw_colle
ge.pdf
 3. THE CRIMINAL LAW (AMENDMENT) ACT, 2013

The Bill was passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March
2013, making certain changes from the provisions in the Ordinance. The Bill received
Presidential assent on 2 April 2013 and came into force from 3 April 2013.

Object…

An Act further to amend the Indian Penal Code, the Code of Criminal Procedure, 1973, the
Indian Evidence Act, 1872 and the Protection of Children from Sexual Offences Act, 2012, BE it
enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:—

Amendments…

Offence Changes

Fine shall be just and reasonable to meet medical expenses for treatment of victim,
Acid attack
while in the Ordinance it was fine up to Rupees 10 lakhs.

“Clause (v) any other unwelcome physical, verbal or non-verbal conduct of sexual
Sexual nature” has been removed. Punishment for offence under clause (i) and (ii) has
harassment been reduced from five years of imprisonment to three years. The offence is no
longer gender-neutral, only a man can commit the offence on a woman.

The offence is no longer gender-neutral, only a man can commit the offence on a
Voyeurism
woman.

Stalking The offence is no longer gender-neutral, only a man can commit the offence on a
woman. The definition has been reworded and broken down into clauses, The
exclusion clause and the following sentence has been removed “or watches or
spies on a person in a manner that results in a fear of violence or serious alarm or
distress in the mind of such person, or interferes with the mental peace of such
 person, commits the offence of stalking”. Punishment for the offence has been
changed; A man committing the offence of stalking would be liable for
imprisonment up to three years for the first offence, and shall also be liable to fine
and for any subsequent conviction would be liable for imprisonment up to five
years and with fine.

Trafficking
“Prostitution” has been removed from the explanation clause
of person

The word sexual assault has been replaced back to rape. The offence is no longer
Rape gender-neutral, only a man can commit the offence on a woman. The clause
related to touching of private parts has been removed.
 4. THEORIES OF PUNISHMENT

Punishment can be used as a method of educing the incidence of criminal behavior either by
deterring the potential offenders or by incapacitating and preventing them from repeating the
offence or by reforming them into law-abiding citizens. 7 Theories of punishment contain
generally policies regarding theories of punishment namely: Deterrent, Retributive, Preventive
and Reformative. Each society has its own way of social control for which it frames certain laws
and also mentions the sanctions with them. These sanctions are nothing but the punishments.
‘The first thing to mention in relation to the definition of punishment is the ineffectiveness of
definitional barriers aimed to show that one or other of the proposed justifications of
punishments either logically include or logically excluded by definition.’

Features…

Punishment has the following features:8 

 It involves the deprivation of certain normally recognized rights, or other measures

considered unpleasant.

 It is consequence of an offence.

 It is applied against the author of the offence.

 It s applied by an organ of the system that made the act an offence.

Theories…

There are five theories of punishments.

1. Deterrent Theory

2. Retributive Theory

7
http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
8
S.G.Goudappanavar, “CRITICAL ANALYSIS OF THEORIES OF PUNISHMENT”, ISSN 2321 - 4171
3. Preventive Theory

4. Reformative Theory

5. Expiatory Theory

 Deterrent Theory: 'Deter' means to abstain from doing at act. The main objective of this
theory is to deter (prevent) crimes. One of the primitive methods of punishments believes
in the fact that if severe punishments were inflicted on the offender would deter him from
repeating that crime. It serves a warning to the offender not to repeat the crime in the
future and also to other evil-minded persons in the society. This theory is a workable one
even though it has a few defects. Those who commit a crime, it is assumed, derive a
mental satisfaction or a feeling of enjoyment in the act. To neutralize this inclination of
the mind, punishment inflicts equal quantum of suffering on the offender so that it is no
longer attractive for him to carry out such committal of crimes. Pleasure and pain are two
physical feelings or sensation that nature has provided to mankind, to enable him to do
certain things or to desist from certain things, or to undo wrong things previously done
by him.

Limitation:  This theory is unable to deter the activity of the hardcore criminals as the
pain inflicted or even the penalties are ineffective. The most mockery of this theory can
be seen when the criminals return to the prisons soon after their release, that is precisely
because as this theory is based on certain restrictions, these criminals are not affected at
all by these restrictions rather they tend to enjoy these restrictions more than they enjoy
their freedom.

 Retributive Theory:

“An eye for an eye would turn the whole world blind”

: - Mahatma Gandhi

Retribute means to give in return. The objective of the theory is to make the offender
realize the suffering or the pain. The most stringent and harsh of all theories retributive
 theory believes to end the crime in itself. This theory underlines the idea of vengeance
and revenge rather than that of social welfare and security. Punishment of the offender
provides some kind solace to the victim or to the family members of the victim of the
crime, who has suffered out of the action of the offender and prevents reprisals from
them to the offender or his family. Majority or Jurists, Criminologists, Penologists and
Sociologists do not support this theory as they feel it is brutal and barbaric.

Limitation: vengeance is not expected in a civilized society. This theory has been
severely criticized by modern day penologists and is redundant in the present
punishments.

 Preventive Theory: The idea behind this theory is to keep the offender away from the
society. Unlike the former theories, this theory aims to prevent the crime rather then
avenging it. Looking at punishments from a more humane perspective it rests on the fact
that the need of a punishment for a crime arises out of mere social needs i.e. while
sending the criminals to the prisons the society is in turn trying to prevent the offender
from doing any other crime and thus protecting the society from any anti-social elements.
The offenders are punished with death, imprisonment of life, transportation of life etc.
Some Jurists criticize this theory as it may be done by reforming the behavior of
criminals.

 Reformative Theory: The objective is to reform the behavior of the criminals. This theory
condemns all kinds of corporal punishments. These aim at transforming the law-
offenders in such a way that the inmates of the peno-correctional institutions can lead a
life like a normal citizen. The idea behind this theory is that no one is born as a Criminal.
The criminal is a product of the social, economic and environmental conditions. It is
believed that if the criminals are educated and trained, they can be made competent to
behave well in the society. The Reformative theory is proved to be successful in cases of
young offenders.

Limitation: In the case of hardened criminals this theory may not work with the
effectiveness. In these cases come the importance of the deterrence theories and the
retributive theories.
  Expiatory Theory: Jurists who support this theory believes that if the offender expiates or
repents, he must be forgiven. The Indian Penal Code is a combination or compromise
between the underlying principles of all these theories.

5. RELEVANCE WITH THE CRIMINAL LAW AMENDMENT,

2013…

Evidently, certain theories like the reformative and preventive rely upon humanitarian modes of
punishment, but these have a weakness against the hardcore criminals. Punishments such as the
retributive and deterrence though the use of fear as an instrument to curb the occurrence of crime
helps in controlling the criminals up to a certain extent. As these employ the idea of revenge and
vengeance these are much harsher than others. Thus, each of these four theories has their own
pros and cons and each being important in it, none can be ignored as such.

Under the Act (The criminal Law Amendment, 2013), unlike in the Ordinance, the terms or
watches or spies on a person in a manner that results in a fear of violence or serious alarm or
distress in the mind of such person, or interferes with the mental peace of such person are not
included as a part of the offence of stalking. Hence, the offence is limited to the physical act
of following or contacting a person, provided that there has been a clear sign of disinterest, or to
monitoring the use by a woman of the internet, email or any other forms of electronic
communication.  
 CONCLUSION

The Verma committee recommendations were far reaching, requiring institutional and
ideological changes that prevent and facilitate the implementation of legislative changes enacted.
What sets this moment apart from the three decades of uphill advocacy by women’s groups for
law reform advocacy by women’s groups, was the ownership of the cause by a wide cross
section of society. From a concern limited to the women’s constituency, the call to end impunity
for sexual violence was owned and echoed across progressive groups and constituencies, paving
the way for the most consolidated set of reforms witnessed in relation to sexual violence thus far.
Alongside, as also suggested by the Justice Verma Committee report, there remains a desperate
need to improve public- police relationship, possibly through a good will venture (perhaps
training the police officials as well as the public in gender sensitive programs). Challenge
therefore, lies in scaling the mechanism of coordination and cooperation from few to all
stakeholders of the state. At the same time, the incitement and provocation alarmingly
disseminated by the media and other information agencies must be shackled appropriately in
compliance to decency, morality and social order- the constitutional mandate. Last, and in line
with the JVC report, reformation in curriculum right from the primary level of education has to
be brought; embracing value based moral lessons; incorporating perception reforms through
gender-blind programs and creating congenial atmosphere in the domestic, social and
institutional sectors.

The Justice Verma Committee recommendations sets out the blue print for other changes that
must follow, transforming the agenda from a limited one of law reform to a larger one for
prevention and institutional change. Legal transformation is inevitably a slow and contested
process, and must plod at its pace. The more challenging aspects for the future relate to
implementation, accountability of the law enforcement machinery, and the creation of support
services that enable survivors to access and journey through the legal system with dignity and
confidence. The gains of this moment are not limited to the its legislative achievements, but lie
in the endorsement by the Verma Committee report to women’s rights demands in the period
that follows.

REFERENCES
 http://indiacode.nic.in/acts-in-pdf/132013.pdf
 http://www.juridicainternational.eu/?id=12529
 http://www.lawnotes.in/Theories_of_Punishments
 http://pib.nic.in/newsite/erelease.aspx?relid=91979
 http://india.gov.in/criminal-law-amendment-act-2013
 http://www.legalserviceindia.com/articles/pun_theo.htm
 http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
 http://indiankanoon.org/search/?formInput=punishment%20theory
 https://www.scribd.com/doc/81483067/Four-Theories-of-Punishment
 http://en.wikipedia.org/wiki/Criminal_Law_(Amendment)_Act,_2013
 http://www.lawnn.com/theories-punishment-kinds-punishment-criminal-law/
 http://www.shareyouressays.com/111726/4-object-of-punishment-indian-penal-code-1860
 http://jsslawcollege.in/wp-content/uploads/2013/05/CRITICAL-ANALYSIS-OF-THEORIES-OF-
PUNISHMENT1.pdf
 http://www.atimysore.gov.in/workshops/wppts/gender_issues/crim_law_amnd_2013_drjagad
eesh_jsslaw_college.pdf
 http://grayscale.org.in/entries/general/simplifying-the-criminal-law-amendment-act-2013-
%E2%80%93-ipc-part-i-
 http://www.advocatekhoj.com/library/bareacts/criminallawamendment/index.php?
Title=Criminal%20Law%20(Amendment)%20Act,%202013
 http://nlrd.org/resources-womens-rights/rape-laws/government-notifications-advisories-rape-
laws/changed-legal-position-on-sexual-offences-understanding-criminal-law-amendment-
ordinance-2013