By Yash Jain, WB National University of Juridical Sciences, Kolkata

Awakened by the heinous and brutal rape in the outskirts of Hyderabad that shook the entire country and made the legislatures realize the need for strict and stringent laws for the punishment of rape and other sexual offences, the Andhra Pradesh Assembly passed the Disha Bill, 2019. The Bill, derives its name from the given name to the victim, a veterinary doctor who was raped and murdered in the incident. Also known as the AP Criminal Law (Amendment) Act, 2019, this Bill seeks to amend the provisions of the Code of Criminal Procedure (CrPC), 1973, for ‘heinous offences of rape’ and the Indian Penal Code, 1860, to strengthen the provisions relating to crimes against women and children. 

Does the new law do enough for the victims?

Rape is the fourth most common crime in India but one of the least reported. The victims pull themselves out of the process due to the sluggish and unsteady legal system. It is often argued that the loopholes present in our legal system make it easy for the perpetrators of such crimes to get away easily. The Disha Bill makes a way to ease the process of delivering justice. It envisages the completion of investigation within seven days of report and trial within 14 working days. The implementation of the new law will ensure that justice be delivered within three weeks of the happening of the offence as a contrast to the earlier 4-month time frame decided by the Criminal Law (Amendment) Act/Nirbhaya Act, 2013. 

The AP legislature exhibited iron hand towards those who commit crimes against women and children by giving death penalty for rape and murder if adequate conclusive evidence is found against them. Earlier the punishment was set to life imprisonment and death penalty was reserved only for the ‘rarest of rare cases’. The Bill provides only death penalty if conclusive evidence is found against the convict, thus, terminating jail term. But the lawmakers left ambiguity in the term “adequate conclusive evidence” as Indian laws provide punishment only in case guilt is proven beyond reasonable doubt. The Bill fails to define the term, which will lead to problematic trials in courts as it will be difficult to analyse what will be considered as conclusive and adequate evidence and what will not qualify this mark. The question of whether just proving of assault on victims is sufficient or is the technicality of the attack also to be proved, has been left unanswered.

What’s new under the Bill?

This Bill also amended provisions concerning the offences against children by proposing prison term of 14 years which can extend up to life imprisonment for sexual crimes as per the gravity of the offence against children. Earlier under the Prevention Of Children from Sexual Offences (POCSO) Act, 2012, a prison term of three to seven years was stipulated for such crimes. With the largest child population in the world, it becomes the duty of the State to grant protection to children by an expansive reading of Article 21. The framing of this Bill seeks to prioritize the safety of children by easing the procedure for them to report the crime and ensuring that recording evidence is done in a child-friendly manner.

The unique feature of the Bill is the punishment for harassment of women through social media. In times of an ever increasing rate of social media crimes, the AP government tried to address this concern. In the world of technology, the offence may not just be committed physically but also virtually through social media. The Bill contains provisions for offences which substantiate section 354D of the Indian Penal Code, 1860, along with provisions to deal with all types of harassment through social media and other electronic platforms. It also made the punishment and investigation process more stringent and efficient. The Bill provides imprisonment up to 2 years for harassment of women through mail, social media or any other digital mode, which may extend up to 4 years if the offence recurs.

For ensuring speedy trial within three weeks, the government will establish exclusive special courts in each district which will deal with offences of not only rape but also felonies like acid attacks, stalking, voyeurism and all offences of such nature under the POCSO Act, 2012. The Bill also directs the government to constitute special police teams for investigating such crimes to ensure that substantial evidence is found, and speedy justice is guaranteed. This is a pioneering move towards a safer space for women and children as the Bill not only considers rape as a serious offence but also incidents of acid attack and stalking as worthy of rigorous punishment. 

A couple of years back, the Union government launched the National Register of Sexual Offenders to maintain a record of first-time as well as habitual offenders. While this record seems to be only on paper so far, the AP government has made provisions for the ‘Women and Children Offenders Registry’, an online public database of offenders which will also be available to the country’s law enforcement agencies.

Challenges for the Bill

The Disha Bill, 2019 is the instantaneous response of the Government of Andhra Pradesh to curb the injustice done to the female and minor victims of sexual offences. The Bill intends to guarantee justice by ensuring speedy trial, amplified punishment to the offenders and much more to provide justice. But are these measures adequate to deliver justice? POCSO Act, 2012 prescribed the trial period of sexual offences as one year, but a survey showed that in Delhi courts majority of the cases are disposed in 2-3 years, and the situation is the same in most courts of the country. The problem is in the enforcement of the laws as there is no system of checks and balances which can review the performance of the courts. Once the Bill has been passed and enacted, the responsibility is on the courts to ensure that enforcement is done smoothly and steadily. But what if the court delays or ignores to apply the provision of the law? This will result in indirect injustice, in which due to the Court’s lethargic and sluggish functioning, the victims suffer injustice.

Also, the Bill reduces the time period of investigation to just one week which is absurd seeing the efficiency of police system in this country. Rape and other sexual offences are heinous in nature and such crimes require detailed investigation. According to a report, after passing of the POCSO Act, 2012, there has been a paucity of investigators and even if the investigators are made available, investigating such crime within a week will be an enormous task leading to a hasty trial. The Bill could have followed its predecessor laws on the point of investigation period of one-month to deliver justice. In addition, the Bill’s provisions of constituting special court for fast track justice delivery, remains questionable considering the state of similar provisions under the Act of 2013 seeing the backlog of cases and the paucity of judges, the goal of disposal of cases through special courts remains a distant dream. India, has a mammoth judge to case ratio of 19.66 judges per one million people which is constantly rising, in which case, creating a special court would only increase the burden on the present courts. Instead the Bill could have continued with the provisions of fast track court in which special benches could take up such matters urgently. The Bill also has provisions for the appointment of a special public prosecutor. Twelve years back, a similar provision was drafted under the Domestic Violence Act, 2005, but it proved to be an ineffective provision given its improper implementation by the courts. So, the new Bill has a cluster of hurdles to cross before it becomes a trailblazing move to curb sexual offences. 

That said, the AP Disha Bill, 2019 is a radical step towards an effective and efficient justice system. With the increase in reporting of cases, this Bill has the potential to ensure speedy disposal, which in turn will safeguard many such victims to come out and report the offence. On an average, India witnessed only 25% conviction rate in all the sexual offence cases. Most of the accused are not convicted mainly due to lack of evidence. This Bill has tried to address the need for deterrence in the law by drafting provisions to ensure that conclusive evidence is found against the offender. However, there are a bunch of laws and amendments made to ensure justice while their actual impact on curbing the crime rate remains questionable. Our laws require proper implementation at the ground level, and the law enforcement agencies require more accountability. Taking these facts into consideration, if the Disha Bill is properly implemented, it will undoubtedly serve as a benefactor to the victims of sexual offences.