From Nirbhaya to Disha Act

From Advocatespedia


The safety of women in the country is currently a significant concern. The nation's crime rates towards women have only significantly increased. Particularly at night, women give leaving their houses a second thought. Sadly, this is the grim truth of our nation, where people are always afraid.

Even though rape remains one of the most horrible and brutal crimes in history, it has taken many years for it to be recognized as an offense against women's sexual autonomy and physical integrity. For large portion of history, women were seen as nothing more than objects, and as such, rape was only considered illegal when it involved the infringement of another man's property.

The concept of rape as a crime underwent a substantial alteration due to a movement in societal norms and beliefs over time. The English common law is where Indian rape laws originated, and the IPC initially introduced anti-rape legislation in 1860. Eventually, multiple acts of violence that resulted in numerous significant legislative modifications made the anti-rape legislation stronger throughout the years. The expansion of the Women's Movement, which raised awareness and altered societal attitudes, gave rise to the necessity for legislative changes.

This article deals with numerous cases namely the Delhi rape case and the Hyderabad rape case which led to the introduction of some legislations which tried to bring certain positive reforms in the country’s anti-rape laws.

The Nirbhaya Act

The entire country was hit hard in 2012 by the Nirbhaya gang rape incident. Our laws at that point were utterly insufficient to defend the innocent and shield victims from evil. J.S. Verma committee was established in the wake of the incident to suggest amendments to the current laws that would provide victims of sexual offences with greater protection. This committee's main concerns were gender justice and the compatibility of current legislation with gender justice. The Criminal (Amendment) Act of 2013 (popularly known as Nirbhaya Act) was implemented following the report. It significantly altered the law, however, like other laws, it had flaws and omitted key essential elements to effectively combat crimes against women.

Changes brought by the Nirbhaya Act

Three separate statutes—the Indian Evidence Act of 1872, the Code of Criminal Procedure of 1937, and the Indian Penal Code of 1860—all saw significant changes. Let's examine each act's amendments in turn.

Indian Penal Code, 1860:

A fresh provision under section 166 A of the IPC was created by the Criminal (Amendment) Act to penalize police officials who fail to file an official complaint in situations of crimes against women, such as rape.

The act also included a new clause to section 166 B of the IPC that penalizes hospital administrators for declining to treat rape victims at no expense to them.

Section 375 of the Criminal Code expanded the meaning of rape to encompass conduct beyond coerced sexual activity. The amendment to section 375 through the act included coerced "penetration by a man of his penis, any part of his body or any object into the vagina, mouth, urethra or anus of a woman or making her do so with him or any other person"; "manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra or anus of a woman or making her do so with him or any other person"; and "applying his mouth to the vagina, anus or urethra of a woman or making her to do so with him or any other person."

When consent is defined as in section 375 description, a woman's "words, gestures or any form of verbal or non-verbal communications" indicating her "unequivocal voluntary agreement" to engage in any sexual act is what is meant to be understood. The definition made it very evident that a woman could not be interpreted as saying "yes" just because she did not say "no."

The age of consent has been increased from 16 to 18 years old under the IPC.

Rapes carried out by members of the armed forces sent by the national or state governments are now covered under Section 376 (2). The extension also increased the severity of the punishment for rape by making it a crime to commit on a woman less than 16 years old.

The IPC's Section 376 C was amended to encompass situations in which a male abuses his authority or fiduciary responsibility by luring a woman under his care or supervision into engaging in sexual activity.

Following the 2013 amendment, a spouse who engages in sexual activity with his wife without her agreement faces a minimum sentence of two years and a maximum sentence of seven years.

Section 376 was amended to provide three distinct subsections

376D was introduced specifically for the crime of gang rape. The amended section states: "Where a woman 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 rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that persons’ natural life, and with fine."

For rape offenses that resulted in the victim's death or prolonged vegetative condition, 376A was created. The death sentence was included in this provision as a punishment for rape.

For repeat offenders, Section 376E was inserted, which established harsher penalties for those found guilty under this provision. The list of possible penalties was expanded to include the death penalty in addition to incarceration with parole.

Criminal Procedure Code, 1973

For the purpose of recording the First Information Report (FIR) for offenses listed under sections 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E, or 509 of the Indian Penal Code, additional provisions have been inserted under section 154(1). These amendments state that a female police officer must document any information regarding the commission of an offence under the aforementioned section, and that if the victim becomes temporarily or permanently mentally or physically disabled during the commission of the offence, the details regarding the commission of the offence must be documented at the victim's home or at any suitable location of their choice. This must take place under the supervision of an interpreter or a special educator, as needed. In addition, this information will be videotaped, and the police officer will promptly register her statement made in front of the magistrate in accordance with section 164 CrPC.

Along with the modifications to section 154(1), a new subsection, 164(5A), was added. This required the Judicial Magistrate to record the testimony of the victim in cases involving offences under sections 354, 354A, 354B, 354C, 354D, 376 subsections 1 or 2, 376A, 376B, 376C, 376D, 376DA, 376DB, 376E, or 509 of the Indian Penal Code as soon as the police authorities become aware of the offence.

To safeguard public servants from malicious accusations for acts performed in the course of their duties, an explanation was inserted into section 197(1), CrPC, stating that prosecution of a public servant for any of the sexual assault offences would not require prior sanction from the relevant government. It is evident that this change was made because it is impossible to demonstrate that sexual abuse occurred as a part of public duties, which is why it was made in order to facilitate the swift prosecution of public servants for rape and other types of sexual abuse.

To expedite the trial procedures in instances involving offences under the Indian Penal Code sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB, Section 309 of the law was amended.

The code was amended to include Section 357C, which mandates that all hospitals—private, public, or owned by others—provide free medical care to victims of offences listed under Sections 376 A–E.

The Indian Evidence Act, 1872

The Indian Evidence Act was amended to include Section 53A, which addresses "evidence of character or previous sexual experience." According to this section, a rape victim's past sexual history or character is not relevant information that can be used against them in court to determine whether or not the victim gave informed consent.

The previous section 114A was replaced by an updated version that states that in a rape prosecution under clauses (a) to (n) of section 376(2) IPC, where the accused has engaged in sexual activity and it is unclear whether the victim's consent was obtained, the court will presume that the victim did not consent, based on the victim's testimony.

The current proviso to section 146 has been replaced by the previous one, which states that it is not permitted to introduce proof in a rape prosecution or question the victim during cross-examination regarding their prior sexual experiences or general immorality to demonstrate their consent or the quality of their consent.

Analysis of Nirbhaya Act

While critically analysing the Nirbhaya Act, the first and most significant drawback is that it disregarded the Justice Verma committee's recommendation to make marital rape a crime. In our culture, marital rape is a common occurrence, and legislators ought not to have disregarded this crucial facet of crimes towards women. It is past time for us as a nation to stop seeing marriage as a husband's permission to have intimacy with a woman beyond her choice. Rape is terrible regardless of marriage status and ought to be prosecuted as a crime against the state. It is unacceptable for our nation's legislature and judiciary to ignore a crime this terrible against women in order to uphold society's view of marriage as an institution. Second, while this legislation established regulations, it neglected to guarantee that the necessary facilities were in place to provide victims of crimes against women with access to justice. To guarantee prompt trials for crimes against women, this legislation ought to have instructed the central government to establish special fast-track courts for such offenses across India.

The Disha Act

Unfortunately, the Nirbhaya case from 2012 did not serve as a wakeup call for India, which was anticipated to treat similar acts of violence towards women with an iron fist and strict laws. Seven years thereafter, a Nirbhaya-like incident occurred again, this time in Hyderabad, where four men attacked, kidnapped, and sexually abused a Telangana-born veterinarian called Disha (whose name was withheld by the authorities to protect her identity).

On November 27, 2019, around 9:15 p.m., Disha's bike tire went flat while she was riding home from job. She explained the issue to her sister over the phone. Afterwards, the accused claimed that they had offered to aid her, but that she had rejected their offer, so they had ambushed her in the woods next to the toll gate. A bottle of pure alcohol, namely whiskey, was forced into her throat in an attempt to silence her cries for aid. The four accused males gang-raped and sexually attacked her in consequently, causing her to bleed profusely and lose consciousness. They kept beating her, and when she eventually came to, she was brutally suffocated. After covering her with a blanket, the accused drove her over thirty kilometres away from the scene of the attack. They removed her body beneath the bridge and burned it with fuel and gasoline until it was completely blackened. These kinds of crimes evoked the same heightened feelings that were common in 2012. People were terrified because the level of crime had increased to such an extreme. On December 13, 2019, the Andhra Pradesh legislature overwhelmingly approved two laws in response to this issue. The bills are "the Andhra Pradesh Disha Act-Criminal Law (AP) Amendment Act, 2019 and the Andhra Pradesh Disha Act-Andhra Pradesh Special Courts" for specific offences against women and children.

Changes brought by the Disha Act

Enacted in 2019, "the Andhra Pradesh Criminal Law (Amendment) Act 2019" (also known as the Disha Bill, 2019) ensures strict penalties for offences against women. "The Criminal Law (Andhra Pradesh Amendment) Act, 2019" has brought new sections 354E, 354F, and 354G to the Indian Penal Code (1860) and affected modifications in existing sections. There are other provisions in the Act to alter sections 376, 376D, and 376DA. Sections 39, 173, and 309 of the Code of Criminal Procedure Code (Cr. P.C.) are to be amended by the Act. Furthermore, under sections 376, 376A, 376B, 376AB, 376D, 376 DA, 376 DB, and 376E, section 374 of the Cr. P.C. has been modified.

Indian Penal Code, 1860:

The terms "male or female" were replaced by "male, female, or transgender" in Section 8 of the Indian Penal Code. Modesty is a quality that relates to the personality concerning widely held beliefs of morality, decency, and integrity of speech and behaviour in any man, woman, or transgender, according to the insertion of new Section 8A.

The IPC will have three new sections, 354E, 354F, and 354G, which would individually address provocation of women, rape of minors, and severe rape of minors. The death penalty will be added to "Sections 376 (Rape), 376D (Intercourse by any individual from the administration or staff of a clinic with any lady in that medical clinic), and 376DA (Gang Rape on a woman below 16 years of age)".

By altering section 376 of the IPC, it has mandated the death penalty for rape crimes when there is sufficient conclusive proof.

Following Section 354D, a new section 354E on harassment was added to the IPC. This section states that harassing women via social networking sites or other innovative electronic mass media is illegal and can result in a maximum of 2 years in prison on a first conviction. It also carries a fine of up to Rs 1 lakh and can be punished with a maximum of 4 years’ imprisonment and a fine of up to Rs 5 lakh on a second or subsequent conviction.

The Code of Criminal Procedure, 1973:

The duration of appeals for assault and rape cases will be shortened to three months from the current half-year period for request arguments related to assault bodies of evidence against women and adolescents. "The Andhra Pradesh Disha Act, 2019" has reduced the appeals period to a quarter of a year, and changes are being made to Sections 374 and 377 of the Code of Criminal Procedure Act, 1973.

Under the Nirbhaya Act, 2013 and the Criminal Amendment Act, 2018, the present period for a judgment is four months (two months for testing and two months for examination). Following "the Andhra Pradesh Disha Act 2019", in cases of assault violations with substantial conclusive evidence, the judgment must be articulated within twenty-one working days of the date of the offence.

The scrutiny or inquiry shall be completed within 7 working days and preliminary inquiry shall be completed within 14 working days. Sections 173 and 309 of the Code of Criminal Procedure Act, 1973, as well as other provisions included in the Act, have been modified to reflect this.

Analysis of Disha Act

The Disha Act of 2019 appears to be appropriate legislation that aims to improve conviction rates and discourage criminal activity by expeditiously resolving cases pertaining to offenses towards women and children of certain charges. The 2019 Act has made severe penalties available for crimes including rape and sexual assault. This Act has effectively tackled the problem of women being harassed on social media. There are now mechanisms in place for the creation of Disha forensic labs, women and children offender’s registry, special police team, special public prosecutors, and exclusive special courts.

However, it is not realistically practicable to complete the investigation and trial within the time frames specified. The Disha Act of 2019 also has to have elements that are reasonable. The duties of all those public servants handling cases of crimes against women and children were not fixed by this Act. Furthermore, the Act of 2019 hasn't given the "Public Awareness Program", "Witness Protection Scheme" "Compensation for Victims of Sexual Offenses", etc. the consideration they need. The Disha Act of 2019 proposes extremely harsh penalties that are out of proportion to the crimes committed, leading to a total lack of understanding of the Principle of Quantum Punishments and its reformative features.


Without a doubt, the government is acting to minimize rape offences; yet, strict preventative measures are not implemented to ensure that such offences do not occur. Before leaping over the branches, the laws must have solid roots. Preventive measures would remove the source of a prospective crime before it arises, but for severe offenders or psychopaths who feel no shame in breaking the law, corrective measures may eradicate the infractions in laws by discouraging the accused from performing similar crimes. The Indian Constitution covers both basic rights and directive principles of State policy; thus, in addition to the Act, preventative measures should be put in place to actively avoid such offences from being committed.

Real justice can only be achieved when the government takes both preventive and remedial actions simultaneously. This means that after taking steps to deter crime if it persists because of unavoidable reasons, corrective (or punitive) measures should be implemented. The law enforcement's authorities approach in both the Nirbhaya and Disha cases, for instance, could have prevented these cases if they had been more aware and careful in the heat of the moment. If there had been robust patrolling throughout the quiet streets, private transportation or any other vehicle could have been checked after 10 p.m. (unlike in the Nirbhaya case), the investigation could have started as soon as the father of Disha informed the police about her daughter's disappearance at Toll Naka, and so on. Long before the actual Nirbhaya or Disha happened, the government need to have firmly enforced the installation of GPS in every car. In a same vein, the prohibition on driving with tinted glasses ought to have been implemented far sooner, prior to the rape case in Nirbhaya.

There have been cases where the victim and her family reported sexual assault and harassment to the authorities, but no prompt action was done, which led to an increase of such crimes that might have been prevented and these women's lives saved. India is therefore still having difficulty keeping the rising number of these crimes under control since the system and equipment are not as alert to respond to the occurrence right away.

To stop these types of crimes from happening, there must be a robust system in place that allows for the reporting of events and the prompting of police action. To the degree that prospective crimes themselves won't happen, we should step up our preventative action, just like in Hollywood films when the police show there on time and save the main character from harm. Actually, the government ought to set out observant patrols to ensure that equipment doesn't fail to stop such horrible acts. Therefore, unless the core job is done, simply modifying laws and adding additional rules after an occurrence has already happened will not producea ny positive consequences or help create a disciplined society.