DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
2023-2024

PROJECT
OFFENCES AGAINST CHILD & JUVENILE
OFFENCES

Post- Nirbhaya - “Mukesh and Ors. Vs. State (NCT of

Delhi)”

Submitted to: Submitted by:

Dr. Kumar Askand Kumar Sudhanshu Tewari
(ASSOCIATE PROFESSOR) Enrollment No- 190101158
(LAW)

1|Page
 ACKNOWLEDGEMENT

I have taken a lot of effort into this project. However, this would not have been possible
without many individuals' kind support and help. I would like to express my sincere thanks to
all of them.

I express my deep gratitude towards my teacher for the subject Dr. Kumar Askand Pandey,
for giving me his exemplary guidance, monitoring and constant encouragement throughout
the project.

My thanks and appreciation also go to my colleague in developing the project and the people
who willingly helped me with their abilities.

Sudhanshu Tewari

2|Page
 TABLE OF CONTENT

Introduction................................................................................................................................4
Statement of Problem.................................................................................................................5
Research Objective.....................................................................................................................5
Research Methodology...............................................................................................................5
Background................................................................................................................................6
I. Facts................................................................................................................................6
II. Procedural History..........................................................................................................6
III. Decision..........................................................................................................................7
Imposition of Death Sentence....................................................................................................8
I. Current legal position......................................................................................................8
II. Imposition of Death Sentence in Present Case...............................................................9
III. Plea of Juvenility..........................................................................................................10
Legal Changes through Nirbhaya Rape Case...........................................................................11
I. Criminal Law Amendment Act, 2013...........................................................................11
II. Fast Track Courts..........................................................................................................12
III. Nirbhaya Fund..............................................................................................................12
IV. Criminal Law (Amendment) Act, 2018........................................................................12
Analysis of the impact of the Nirbhaya Rape Case..................................................................14
I. How far were the amendments effective?.....................................................................14
II. Deterrence as a Solution................................................................................................15
III. Fast Track Courts..........................................................................................................16
IV. Problems in the Current Law........................................................................................16
Suggestive Measures................................................................................................................18
I. Preventive Action..........................................................................................................18
II. Enforcement Mechanism..............................................................................................18
Conclusion................................................................................................................................20
Bibliography.............................................................................................................................21

3|Page
 INTRODUCTION

Nirbhaya Rape Case was one of the most brutal rapes ever happened in rape history. It
shocked the conscience of every stratum of society. The Act was so brutal that in the
judgement, Justice Dipak Mishra remarked that it seems as if we are living in a totally
primitive and under-civilised society. The crime took place on December 16, 2012. Soon after
the incident, massive protests, media coverage, and political pressure led to many significant
developments in the law. On March 20, 2020, the four accused were finally executed. 1 The
crime was such a dastard event that it was high time to relook into the sexual offences against
women and children. In the light of this, this work focuses on the entire legal battle in
Nirbhaya Rape Case, a significant development in Rape laws, and how far have these
development helped in tackling sexual offences in the country. From this analysis, the
problem is analysed, and solutions are provided.

This work first analyses the Case of the Nirbhaya Rape Case. Chapter II deals with the Facts,
Procedural History and Decision in Nirbhaya Case. Further, in Chapter III deals with Legal
Changes brought by Nirbhaya Rape Case. Chapter IV tries to answer were these changes
sufficient to tackle the rape problem in India. If not, then what are loopholes in the existing
situation. After analysing these, suggestions are made under Chapter V.

1
Mukesh v. State, NCT Delhi (2017) 6 SCC 1

4|Page
 STATEMENT OF PROBLEM

In March 2020, when the accused were executed, it was hailed that justice was done to
Nirbhaya. However, the point is whether the justice was actually done in its true sense? The
post-Nirbhaya period observed huge amendments in rape laws and more judicial sensitivity to
address the issue. With this, a parallel rise in the number of cases could also be seen.
Therefore, it is important to analyse the Nirbhaya verdict and the legal modifications. It is
also important to see why despite such development, the issue of rape has worsened since
2012. From this, only better solutions can be provided.

RESEARCH OBJECTIVE

The objective of this work is to analyse the whole judicial battle in the Nirbhaya Rape case
from December 2012 till March 2020. From this, the work aims to analyse whether a death
sentence is sufficient to address rape cases in the country. If the answer is no, then what
solutions should be adopted to solve this problem.

RESEARCH METHODOLOGY

This work is analyses the death penalty in Nirbhaya Rape Case. In this, it covers how the
sentence was imposed what post-sentence procedures were adopted before they were finally
executed. The death sentence of four convicts is hailed as justice to Nirbhaya. This work
analyses whether a public celebrated death sentence is a solution to the problem of rape.

In the light of this, this work goes through Primary sources like judgements in Nirbhaya
Case, Statutes and Amendments. Further to analyse the ground reality and implications of this
law, secondary sources like research articles, interviews, newspaper reports, etc., are
analysed.

5|Page
 BACKGROUND

I. FACTS

On December 16, 2020, the four accused Ram Singh (later he committed suicide), his brother
Mukesh Kumar, Vinay Sharma, Pawan Gupta, Akshay Thakur, and a Juvenile Offender were
driving a bus in Delhi. They gave a ride to the victim and her friend. The group brutally raped
the victim in the bus while it roamed around in Delhi. The rape was committed in a very
barbaric and shocking manner. Foreign objects were inserted in the victim’s private parts.
Medical examination showed that several bite marks were found all over her body, including
private parts like breasts, vagina, etc. the Act was a totally savage act. Further, the accused
did not stop here. After the incident, they threw the ravaged naked body of the victim and her
friend in the extremely cold weather at night. They did not stop here and tried to run over the
bus over the lying helpless victim and her friend. It was luck that they could not succeed in
killing them.

II. PROCEDURAL HISTORY

After this case, in January, the then Chief Justice of India, Justice Altamas Kabir, inaugurated
the Fast Track Court for speedier disposal of sexual offences cases. The FIR was filed on
January 2, 2013; the court took cognisance in January and convicted the accused in
September. Hence, in only 9 months, the whole criminal trial was completed in this historic
case. Death Sentence was awarded, and as per the requirements of Code of Criminal
Procedure, 1973, reference was made to Delhi High Court. The court confirmed the Death
Sentence of the four accused in March 2014.

Then, the four accused appealed the death sentence in the Supreme Court. From March 2014
to May 2015 and upheld the death sentence. In this, the court deeply analysed the aggravating
and mitigating factors in the factual matrix of this case. The court observed that this case falls
under “rarest of the rare doctrine” and creates a “Tsunami of shock.” After this, the defence
counsel used a bunch of constitutional remedies like review petition, curative petition, mercy
plea, etc. Here, the accused created the mockery of the entire legal process by

 Using remedies of different accused at different dates so as to delay the entire process.
 The grounds in appeal, review and curative petition were prima facie baseless.

6|Page
III. DECISION

Considering the requirement of the Criminal Justice System, the court gave the due
opportunity to the accused even though it resulted in delay. The court properly analysed each
and every petition and rejected them. Firstly, in the appeal, the entire issue was death penalty
was considered. Arguments were heard for about a year, and then the entire jurisprudence of
the death penalty was studied. The court again affirmed the death penalty. The 3 different
review petitions were decided after considering the existing law. However, in the present
case, it was ostensible to reject them all. The curative petition prima facie did not fulfil the
requirements of the established principle; hence it was rejected. After this, the mercy plea was
also rejected by the president and the four accused were finally hanged on March 20, 2020.2

2
(2017) 6 SCC 1.

7|Page
 IMPOSITION OF DEATH SENTENCE

The court discussed the existing legal position with respect to a death sentence, and the
principles were applied in the present case.

I. CURRENT LEGAL POSITION

Death Sentence as a form of punishment has been a debated topic. Its constitutionality is
challenged on the basis of grounds under Articles 14, 19, and 21. It is argued that the death
sentence is arbitrary (against Article 14), it challenges a person’s right to express himself
(Article 19), and is against the right to life (Article 21). The constitutionality of the death
sentence came up for the first time in the case of Jagmohan v. State of UP.3 In this case, the
court held that the death penalty is constitutional. As the sentence is imposed by applying
judicial discretion, hence it is not arbitrary. In Rajendra Prasad v. the State of UP,4 the court
stood against the idea of the death penalty. It held it unconstitutional for the first time. Justice
Krishnya Iyer observed that:

1. Death Sentence should be imposed in extra-ordinary cases only.

2. “Special Reasons” must be recorded.

Then, in the landmark case of Bacchan Singh v. the State of Punjab,5 the court, by the
majority of four is to one, held the death penalty as constitutional. Justice P.N Bhagwati gave
the dissenting opinion. The following legal principles were set by this case:

1. Crime and not the criminal test in awarding the death penalty.
2. Life Imprisonment is the rule, and death is an exception.
3. The death penalty should be imposed in “rarest of the rare case” only.
4. In this, a balance between the aggravating and mitigating factors should be done.

a) Aggravating factors are the factors that support the imposition of a death
sentence. They are used by the prosecution. The severity of the crime, the
degree to which it was committed, prior conviction, etc., all account for
aggravating circumstances. Other examples are Seriousness of Offence,
Victim, Victim being a public servant.

3
AIR 1973 SC 947.
4
(1979) 3 SCR 646.
5
AIR 1980 SC 898.

8|Page
 b) Mitigating Factors support the defence. It opposed the imposition of
punishment. Possibility of reform, infirmity or disease of criminal are
examples of mitigating factors.

What is the rarest of the rare case depending upon the facts of each case? In Macchi Singh v.
the State of Punjab,6 Justice Thakkar gave five categories of cases that fall under rarest of
rare cases. These are:

1. Manner of Commission of Crime

2. Motive of Crime
3. Magnitude of Crime
4. Socially abhorrent nature of the crime
5. Personality of Victim

II. IMPOSITION OF DEATH SENTENCE IN PRESENT CASE

Taking note of the legal position, the Fast Track Court upheld the death sentence. The Delhi
High Court confirmed it in reference to the High Court. This point was again raised in the
appeal; the Supreme Court gave sufficient hearing and analysis on the matter and confirmed
the sentence.

In the present case, the court noted the following facts:

 Medical evidence showed the presence of severe bite marks all over the victim’s body,
including private parts.
 Foreign Element was inserted in the most brutal manner that part of her intestine was
ruptured.
 After the gang rape, the victim and her friend were thrown into the extremely cold
weather on a chilling night.
 In order to hide the crime, the accused tried to run over the bus and tried to kill the
victim and her friend.

The court noted these facts as aggravating circumstances. Further, it observed that the rape
itself is an aggravating circumstance.

The Counsel of the accused argued the following as mitigating factors

6
1983 SCR (3) 413.

9|Page
  The accused is the sole bread earner of the family.
 No prior history of committing a crime.
 They being of very young age.
 Loopholes in Investigation.

The court held that there is no balancing of the aggravating and mitigating factors. Justice
Dipak Mishra observed that the crime was committed to show a clear Act of savagery. The
commission of such Act makes it appear that our society has not developed since the time
human was uncivilised.

III. PLEA OF JUVENILITY

In this case, one of the accused was a juvenile in conflict with the law, and his trial was
conducted by Juvenile Justice Board. Another accused, Pawan Kumar Gupta, raised the plea
of juvenility. It was contended that on the date of offence, he was 16 years. In this, he relied
on School Leaving Certificate. This plea was rejected on merits by Juvenile Justice Board, by
Patiala House Court in appeal, by Delhi High Court in revision, and by Supreme Court
through SLP. Here, the question of age was a question of fact. For this, the investigation was
directed to determine the correctness of age. The Investigation report submitted that the
accused was not a juvenile. Since this report was itself not contested; hence all the courts in
the hierarchy rejected the petition.7

7
Pawan Kumar Gupta v. State NCT, Delhi 2019 SCC Online Del 11870. Appealed to SC 2020 (2) SCC 803.

10 | P a g e
 LEGAL CHANGES THROUGH NIRBHAYA RAPE CASE

After the Nirbhaya Rape case, many significant changes were made in the law. Justice Verma
Commission was set up to analyse the existing laws. It recommended the enhancement of
punishment for committing rape and for causing death in rape. It was extended to 20 years
maximum imprisonment in the former case and Life Imprisonment in the latter. On the basis
of the recommendation of the commission, the Criminal Law Amendment Act, 2013 or
Nirbhaya Act, was brought to force.

I. CRIMINAL LAW AMENDMENT ACT, 2013

This Act brought various changes in the Indian Penal Code (IPC), Code of Criminal
Procedure (CrPC), Indian Evidence Act (IEA) and Protection of Children from Sexual
Offences Act (POCSO). The following are the important changes in the respective law.

1. Redefined Rape: The Amendment widened the definition of rape. Now, acts
additional to penile-vaginal penetration or sexual intercourse also come under the
ambit of rape.
2. Punishment of Rape: The punishment of rape was increased to a minimum
imprisonment of 20 years. Aggravated forms of rape with more stringent punishment
were added, such as Gang Rape, Rape of Minor, etc. Even a death sentence could be
imposed in case of rape of a girl below 16 or 12 years.
3. Age of Consent increased from 16 to 18 years: Thus, statutory fiction, consent my
girl below 18 is not considered as consent at all.
4. Insertion of New Offences: Certain acts were not as serious as rape but were
important factors behind the increase in rape. These acts include stalking, voyeurism,
acid attack, trafficking, etc. The Nirbhaya Act not only worked on rape but also on
these ancillary factors which contribute towards rape. The Amendment made all these
separate acts offences so that the basic factors behind the sexual offences are
subverted.
5. Medical Help and Justice were made easier: New Sections 166A and 166B cast a
duty on the hospital and the police to assist the victim. The hospitals have a duty to
treat the victim, and the police have a duty to register FIR. Failure or neglect would
attract penal consequences.

11 | P a g e
 6. Speedier Investigation: The investigation in rape cases must be completed within a
deadline of 2 months.
7. Medical Examination: In this, the two-finger test made the victim uncomfortable
filing the case. This test was removed.
8. Evidence: The provisions of the evidence act were amended. Now, it is mandatory for
the court to presume that victim did not consent in rape cases falling under S. 376(2)
(a) to (n).8 Now it is for the defence to prove that the victim consented. The victim
need not prove the absence of consent in such cases. Further, to prove consent, the
defence cannot produce evidence or cross-examine the rape victim in respect of her
immoral character or previous sexual experiences. It was felt that such questions
made the victim uncomfortable, and this was one of the reasons why the victim was
reluctant to file a complaint.

II. FAST TRACK COURTS

Chief Justice inaugurated the fast-track court to speedily try the Nirbhaya Rape Case. The
court did a commendable job, and it completed the whole trial 6 months and sentenced the
accused to death after 3 months.

III. NIRBHAYA FUND

Nirbhaya Fund was created by the government to financially assist the states in taking
measures relating to women’s safety and security, helpline number, etc. However, in reality,
this fund is often criticised for being under-utilised. Data shows that 89% of the fund is not
utilised by the state. No state has utilised such funds beyond 50%.9

IV. CRIMINAL LAW (AMENDMENT) ACT, 2018

In 2018, the Criminal Law Amendment Ordinance was promulgated. Later, it took the form
of the Act. This Act was not a direct consequence of the Nirbhaya Rape Case. But
nevertheless, it is important to discuss in analysis. This Act brought more aggravated forms of

8
The Indian Evidence Act, 1860, No. 1, Act of Parliament, 1860, S. 114A.
9
TOI Correspondent, “How Nirbhaya case changed rape laws in India”, TIMES OF INDIA, (Nov. 10, 2023,
7:50 PM).

12 | P a g e
offences under rape and also made some alterations in procedural laws. The following
modifications were made by the Act:

1. Insertion of Aggravated Forms of Rape: Rape of Minor under 16 years and Child
under 12 years was inserted aggravated form of rape. Further, 2 offences dealing with
aggravated forms of Gang Rape were also included.
2. Timeline for disposal in appeal: S. 374 and 377 of Code of Criminal Procedure,
1973 were amended. Now, appeal in rape cases needs to be disposed of within a time
period of 2 months.
3. Bail Provisions: In order to ensure that the accused is not set free by bail, the bail
provisions were made strict in rape cases. Now, bail in such cases requires 15 days’
notice from Public Prosecutor. Further, at the hearing of bail application, the presence
of information or an authorised person is necessary. Hence, the victim has an
opportunity to oppose the bail to the accused.10

Further, while passing this ordinance, the government made a policy change in respect of
rape cases. It has decided to come up with more fast track courts to try rape cases. According
to government officials, till now, there are around 524 fast track courts that try cases in
respect to women, Scheduled Caste and Scheduled Tribes, marginalised and senior citizens. 11
Now, the aim is to establish 1023 more fast track courts to deal with offences of rape and
POCSO. This new scheme provides for improving infrastructure and prosecution machinery,
the number of judicial officers, the additional post of public prosecutors, investigators,
special forensic kits, etc.12

10
The Criminal Law (Amendment) Act, 2018, No. 22, Act of Parliament, 2018.
11
PTI, “India needs 1023 special courts to try cases of rape and child rape: Law Ministry”, THE HINDU (Nov.
11, 2023, 6: 10 PM)
12
Ibid.

13 | P a g e
 ANALYSIS OF THE IMPACT OF THE NIRBHAYA RAPE CASE

Nirbhaya Rape Case and the follow-up amendments did bring certain positive changes.
Although rape cases are increasing, the prosecution and trial of such cases cannot be ignored.
Nirbhaya Rape Case and supplemental Amendment gave women the voice to fight against
injustice. In an interview, Sunita Menon, Director of an NGO working against sexual
discrimination, observed that after the Nirbhaya Rape case, a dramatic shift in social attitude
took place. Today, people do not hesitate to raise their voices against crime against women.
This could be seen in the press, social media, campaigns, etc. 13 Due to this change in opinion,
victims no longer hesitate to approach the police. Hence, what was silently suffered earlier is
publicly criticised today. More and more women come forward to report the crime. All these
happened mainly because of the mass campaign and fight against the injustice to Nirbhaya.

I. HOW FAR WERE THE AMENDMENTS EFFECTIVE?

The increased reporting of rape crimes is celebrated. However, there are many loopholes in
the system which requires attention—delayed justice results in the victim giving up before
the case is actually decided. Implementation mechanisms have made the post-Nirbhaya
amendments futile. Statistical analysis of NCRB data along with the newspaper report
highlights that the number and severity of rape have worsened in this decade.

Several instances of rape cases, some even more brutal than Nirbhaya, were observed. In
2017, in Unnao, a woman was gang-raped, and some of her family members were arrested
and threatened. Then, the two accused involved in gang rape were out on bail, and they put
the victim on fire so as to kill her. Later, this incident was tried by Delhi Court. A similar
incident happened in Kathua in which a minor was brutally raped. Another horrific incident
came to light when a 27 years old veterinary doctor was gang-raped in Hyderabad. Her body
was burnt by the accused—this followed a lot of criticism and social media demonstrations.
The police were criticised for not registering FIR. Later, all the accused were killed in an
encounter. This action was widely hailed because of the speedy justice to the victim. From a
legal point of view, even though encounters are appreciated for fast action, however, it is not
justice in the true sense. The reason is conviction and sentence of the accused is the domain

13
Sameera Khan, “Five years after Nirbhaya what has changed for women in public places”, THE HINDU
(Nov. 23, 2023, 8:00 PM).

14 | P a g e
of the judiciary. Principles of natural justice, the principle of a fair trial, appreciation of
evidence, the presumption of innocence and the requirement of proof beyond a reasonable
doubt are necessary for the administration of criminal justice. Moreover, the encounter might
seem like a better solution in the short run; however, in the long run, it marks the shift in the
power of the court to police. Even though, in highly publicised cases, where the guilt of the
accused is apparent, then encounter seem like a good solution than long judicial trial.
However, if encounter becomes a thing in a country, there it is highly probable that power
may be arbitrarily exercised. Encounters reflect the failure of the judicial system and the
failure of people’s trust in the judicial system. From the aspect of rape cases, encounters
reflect how the law and judicial system has failed that resort to the executive is taken then the
judiciary.14

There are other instances of rapes as serious as Nirbhaya throughout the country. Kathua,
Gudia, Mandsaur, etc., are not just names and places, but it reflects how rape is becoming a
reality in the country. It is not a state problem but a nationwide problem. After Amendment in
the Nirbhaya Rape case, even the penalty of death sentence was prescribed under IPC and
POCSO. Following this, various High Courts, being very sensitive of crimes against women
and children, have actually started imposing death sentences on the accused. However,
statistics conclusion of an increase in rape cases concludes that death sentence is not serving
any deterrent purpose.15 The rising rape cases reflect how the purpose of the post-Nirbhaya
laws is frustrated.

II. DETERRENCE AS A SOLUTION

One of the major changes brought by the Nirbhaya Rape Case was an increase in the
punishment of rapes. Again the statics reveals that there is the failure of deterrence theory.
Many Legal experts opine that it is not increased punishment that deters a criminal but the
certainty of punishment. Practically, many criminals opine that they can be absolved from
liability as the case is going to take many years. Even in the Nirbhaya Rape case, a lot of
delaying tactics were used by the accused, and it took seven years till the persons were
executed. Hence, all this puts a question mark on whether stricter punishment or better
enforcement is a solution?

14
Sahil Sood, “India: Nirbhaya Case: Do We Continue To Fail?” MONDAQ (Nov. 23 2023, 7:40 PM)
15
NCRB, Crime in India Report 2018.

15 | P a g e
III. FAST TRACK COURTS

Fast Track Courts was one of the very significant changes brought by the Nirbhaya Rape
Case. It took just 9 months to convict and sentence the accused. This had been a milestone in
the rape history of India. The reason why this case took seven years was in the stage of post-
sentence remedy. Several appeals and petitions combined with a lot of delaying tactics
resulted in the delay.16 From this, a lesson to be learnt is how to address such tactical issues so
that their resort is prevented in future cases.

IV. PROBLEMS IN THE CURRENT LAW

In the views of Advocate Rebecca John, 17 stringent punishment is not a solution. Measures
like time-framed prosecution and trial, non-humiliation of the victim, etc., are the solution.
Even after modification in Evidence Act, victims are still humiliated and characterised. Still,
the patriarchal notion exists, and it is the victim who is judged. Not just rape, but crimes that
further patriarchal notions are not at all taken seriously. These crimes, although they are not
directly related to rape but indirectly result in the same ground reality. For instance, crimes
such asexual harassment, eve-teasing, outraging the modesty of women etc., are not at all
taken seriously. Further, even in rape, many times, it is the victim who is blamed. For
example, in the Shakti Mills Gang rape case, it was alleged that why she went to such a
lonely place. In an Uber Cab Rape Case, the woman was blamed for falling asleep in the cab.
Similarly, in Chandigarh, a woman was raped after she took a shared-autorickshaw. A
Member of Parliament criticised the victim for taking shared rikshaws and said that she
should have been “alert and aware”.

There is a lot of problem with the implementation mechanism. This is particularly in respect
of cases that do not get as much publicised as Nirbhaya. For example, in POCSO, there is an
important provision dealing with the immediate arrest of the accused without the option of
bail. However, a study conducted by an NGO reflects that in-ground reality, the police do not
register the case itself.18 This is particularly true in rural areas. In Uma’s case, a minor girl
was repeatedly raped, got pregnant and gave birth, but even after this, no FIR was registered
16
All four convicts delayed their individual review petitions and filed them on different dates. Three of them
were filed in 2017 - November 6, November 11 and December 12, 2017. The fourth one filed on December 9,
2019 also one and a half years after the Supreme Court dismissed the review petitions of the other convicts on
July 9, 2018. After the rejection of all the four review petitions, the convicts used the same delaying tactic for
the mercy pleas.
17
PTI, “Post-Nirbhaya changes in laws not yielded results due to poor implementation, says experts”
OUTLOOK INDIA (Nov. 23, 2023, 9:30 PM).

16 | P a g e
by the police.19 This reflects how the implementation mechanism has failed even at the pre-
investigation stage. Further, there is a lack of outreach and sensitisation amongst
investigation agencies. Due to this, many times, they do not respond in a proper manner.

Further, preventive action helps in preventing the crime itself. An example would be the
preventive procedure adopted by police so that they reach the victim on time and rapes do not
take place at all. However, the current legislation has no provisions for preventive remedy.
There is no statistical analysis of how much time the police take to reach the victim in
different cases.

Analysing these issues, in a reference case, Re-Assessment of the Criminal Justice System in
Response to Sexual Offences,20 the Chief Justice of India Justice Bobde remarked that what
needs to be done is to collect information at the ground level from various duty holders such
as investigation agency, prosecution, medico-forensic agencies, rehabilitation, legal aid
agency, etc.

18
Diti Bajpai, Post Nirbhaya rape case, the laws have changed, but has the mindset? No it hasn’t Gaon
Connection, (Nov. 23 2023 9:45 PM).
19
Ibid.
20
SMW 4 of 2019.

17 | P a g e
 SUGGESTIVE MEASURES

I. PREVENTIVE ACTION

Effective preventive mechanism plays a significant role in the reduction of crime. It helps to
prevent crime in the future. The following are suggested:

 Sensitivity towards Crimes against women-not just rape, but also aspects like
outraging modesty, eve-teasing, sexual harassment, molestation, etc. A better
implementation mechanism is required in not just rape but also in these crimes.
 Police patrolling and tolerance towards such activities.
 Police must reach the victim on time. There should be regular reporting of data when
the police help in the preventive mechanism.

Another important preventive measure is changing the ground reality. In this, patriarchal
notions must be addressed properly. In India, people grow in a male-dominated environment.
Due to this, many men do not get the idea of consent of women, why it should be respected,
etc. Better sensitisation and awareness is required. Here, it is important to mention the
example of Africa where sex education helped in the reduction of sexual violence against
women.21 This presents a good example to India. Sex education should be made a part of the
curriculum. Ideas like respecting women treating women with certain standards of dignity
and modesty should be part of learning. Just passing a death sentence has become a futile
exercise. Now is the time to work on the basic and the root cause.

II. ENFORCEMENT MECHANISM

Better enforcement actions mean better availing of remedies. Today, women do not fear to
come forward and reporting the crime. But, even today, the trial takes a very long time. Fast
Track Courts address the issue of faster trials in rape cases. Hence, the government’s measure
of increasing the infrastructure and number of fast-track courts, particularly to address sexual
offences, is appreciated. Further, the Nirbhaya Act also provides for deadlines in investigation
and trial in rape cases. This is a very good step. From the Nirbhaya Rape case, it was
observed that the trial and investigation were actually on time. What resulted in delay was the

21
Margi Vyas, “Revisiting the effectiveness of the post-Nirbhaya Amendments”, BAR AND BENCH (Nov. 24,
2023, 9:30 AM).

18 | P a g e
stage of appeal, review, etc. Hence, a better mechanism should be made so that even at the
appellate stage and post-death sentence procedures, the delays are avoided. Otherwise, the
role of Fast Track Court would be futile if appeals, review and curative petitions take time.
Furthermore, even a timeline for rejection or acceptance of mercy petition should be
provided. It is true that a mercy petition is the discretion of the executive. But this
discretionary power should be exercised within a reasonable time period.

Furthermore, digitisation is another important measure for a faster mechanism. The

COVID19 period has opened a new era of the virtual environment. Today, a lot of work can
be easily done without physical presence. Even the Supreme Court created a record of
hearing around 1000 cases till August. Hence, a shift towards digitisation will help in curbing
judicial delays.

19 | P a g e
 CONCLUSION

Nirbhaya Rape Case gathered media focus and political pressure. Hence, trial and sentencing
were fast and strict in it. Many people highlighted that it was also a case of delayed justice.
However, the idea is the procedure was misused and manipulated by the defence lawyer.
There was no substantial question in review and curative petition. Still, it was filed. On the
one hand, it is right to say that death row convict has the liberty to utilise all the remedy.
However, here these remedies were utilised on a groundless point. It was ostensible and
apparent that review petition and curative petition had no ground. It did not even fulfil the
minimum criterion of these petitions. After the appeal, it was not a legal battle but only
manipulation and misuse of existing provisions. Due to this, it is important that analysis of
post-sentence remedies be done so as to avoid the use of such tactics. Further, when more
than one convict is sentenced to death, and the remedies of one co-convict is exhausted. Does
it mean that he will still not be hanged till the remedy of the other convicts is also exhausted?
This position needs to be analysed and settled.

Imposing a death sentence seems right from a retributive angle. But from a deterrence
perspective, the death sentence had a negligible impact in reducing the crime against women
and children. Hence, a better solution apart from stringent punishment is the need of the hour.
Although this work has highlighted some of the problems and solutions in the current rape
law, however, more analysis and empirical research are also required. More deliberation
needs to be made, and policymaking is required. It is when these crimes are reduced then
only true justice to not only Nirbhaya but also Unnao, Gudia, Kathua, and many more can be
done.

20 | P a g e
 BIBLIOGRAPHY

CONSTITUTION & OTHER STATUTES:

1. The Constitution of India.
2. The Code of Criminal Procedure, 1975.
3. The Criminal Law (Amendment) Act, 2013.
4. The Criminal Law (Amendment) Act, 2018.
5. The Indian Penal Code, 1860.
6. The Indian Evidence Act, 1860.

ARTICLES:

1. TOI Correspondent, “How Nirbhaya case changed rape laws in India”, TIMES OF
INDIA.
2. PTI, India needs 1023 special courts to try cases of rape and child rape: Law Ministry,
THE HINDU.
3. Sameera Khan, “Five years after Nirbhaya what has changed for women in public
places”, THE HINDU.
4. Sahil Sood, India: Nirbhaya Case: Do We Continue To Fail? MONDAQ.
5. PTI, Post-Nirbhaya changes in laws not yielded results due to poor implementation,
says experts OUTLOOK INDIA.
6. Diti Bajpai, Post Nirbhaya rape case, the laws have changed, but has the mindset? No
it hasn’t Gaon Connection.
7. Margi Vyas, Revisiting the effectiveness of the post-Nirbhaya Amendments, BAR
AND BENCH.

ONLINE DATABASE:

1. SCC OnLine.
2. AIR Database
3. NCRB: Crime in India Report, 2018.

21 | P a g e