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An Amendment Of Offences Affecting Human Body Law Essay
影响人体罪行的修正案
印度刑法草案第一次提交由麦考利勋爵主持的法律委员会的报告。印度法律的基础被认为是刑法的精华 - 詹姆斯·菲茨詹姆斯·斯蒂芬爵士。大多数对人体的罪行，比如标题是“对于人的罪行，夫妻和父母的权利，个人的声誉罪”都包括在这个草案中。
对人体罪行进行分类，涉及某种形式的攻击或个人的暴力或人身伤害，即影响个人的体质的人的生、自由或安全的犯罪罪行。
对人体罪行被列为一个单独的类犯罪主要是因为一个事实，即对人体的任何易受害处的入侵是触犯个人的身体完整的权利，对于任何人都是这样，这是在任何文明社会[1]都有的基本权利之一，根本隐私权只是一个狭窄部分。
但是，刑法需要与社会共同发展。目前，有提出在刑法中的不少修订，比如引入新的犯罪，提高或降低处罚，以及改变现有的罪行，以适应不断发展的社会需求。
我们的观点
The draft of the Indian Penal Code was submitted by the First Law Commission Report, which was chaired by Lord McCauley. The basis of Indian law is said to be the Digest of the Criminal Law - Sir James Fitzjames Stephen. Most of the offences against the Human Body are included under the title "Offences against the person, the conjugal and parental rights, and the reputation of individuals", within this draft.
Offences against the Human Body classify crimes involving some form of assault or personal violence or physical injury, i.e. offences affecting the life, liberty or safety of the physical person of an individual.
Offences against Human Body have been classified as a separate class of offences basically because of the fact that any harm done against the human body is an invasion of the Right to Bodily Integrity of any individual which is just a narrow part of the fundamental right to privacy which is one of the basic rights of any civilized society [1] .
However, the Penal Code needs to evolve with the society. At present, there are many amendments that are proposed in the Penal Code, as regards introducing new offences, enhancing or reducing punishments, as well as changing the existing offences to suit the needs of the evolving society.
Our Review
This report contains a long running review of the existing law, and much needed changes which have been reiterated time and again in various Law Commission Reports, by eminent jurists, and by the courts all around the world, but have been failed to be included in the Code.
Suggested Amendments:
A. Honour Killing
Honour killing (also called customary killing) is the murder of a (female) family or clan member by one or more fellow (mostly male) family members, where the murderers (and potentially the wider community) believe the victim to have brought dishonour upon the family, clan, or community. These killings result from the perception that defence of honour justifies killing a person whose behaviour dishonours their clan or family [2] .
Amendments are needed to be made in the Indian Penal Code to curb these barbaric and shameful acts of murder committed by brutal, feudal-minded persons who deserve harsh punishment [3] . The amendments proposed are: [4]
Fifth Clause to Section 300 of the Indian Penal Code, making ‘Honour Killing’ a “distinct offence”.
Such killings should now bring charges of murder (Section 302)
B. Section 302-Punishment for Murder (Abolition of Death Sentence)
In India, the issue of the abolition of capital punishment was raised for the first time in the Legislative Assembly in 1931, wherein it was sought to be introduced as a Bill to abolish death penalty in Bihar, but it was defeated. [5]
Bachhan Singh V. State of Punjab [6] , minority opinion of P.N Bhagwati “who says that section 302 of IPC in so far as it provides for imposition of death penalty as an alternative to life sentence is Ultra Virus and Void as being violative of Articles 14 and 21 of the constitution. Since it does not provide any legislative guidelines as to when life should be permitted be extinguished by imposition of death sentence.”
Developing society, progressive approach, more reformatory punishments and not retributive punishments demand that death penalty must be abolished. [7]
Some consideration regarding the motive should also be made in the section for imposing penalty, because usually murder is done for personal provocative causes, however, if murder is done during dacoity or robbery, they are done purely due to causes which are motivated by such harms as are caused to the society. A reasonable differentiation should be thus, be made between the two. [8]
C. Section 303 - Punishment for murder by life-convict
It is submitted that the above section should be repealed, in the light of the Mithu Case [9] , wherein it was struck down as unconstitutional. Also it cannot be justified on the basis of Article 14 of the Indian Constitution.
D. Section 304B - Dowry Death
A new explanation is proposed to be introduced in Section 304-B. The phrase “soon before death” is a relative term which has to be examined on facts and circumstances of each case. This expression “soon before death” is pregnant with the idea of proximity. It is not synonymous with the term “immediately before”. [10] Thus, we propose to introduce a new Explanation 2 in Section 304-B to include all these aspects in the statutory law and not merely judge made law, so that it becomes more authoritative.
There have also been made many recommendations by the National Commission for Women: [11]
The words ‘soon before her death’ occurring in sub-section (1) of Section 304B IPC (Dowry Death) may be replaced by the words ‘anytime before her death’.
Any death occurring in the circumstances mentioned in the abovementioned sub-section even after 7 years of marriage maybe considered as dowry death.
The minimum punishment laid down in the sub-section (2) of Section 304B IPC should be raised from 7 years to 10 years and death may be prescribed as the maximum penalty alternate to the existing penalty of imprisonment for life as dowry death is an aggravated form or murder itself.
E. Section 307 - Attempts by life convicts
In view of the above arguments, it is further proposed that Sec. 307 Part II – Attempt to murder by life convicts, must also be removed from the purview of Indian Penal Code since this as well is discriminatory on grounds of Art. 14 – Right to Equality of our Constitution.
F. Euthanasia
“’Euthanasia’ is the act of killing someone painlessly, especially for relieving suffering of a person from incurable illness. It is also called ‘mercy-killing’.” [12]
It is proposed, that euthanasia as an offence be removed from the ambit of suicide, “as self-killing is conceptually different from abetting others to kill themselves. They stand on different footing, because in one case a person takes his own life, and in the other a third person is abetted to take his life.” [13] Also, it cannot be covered under the ambit of Culpable Homicide as there is the presence of “Informed Consent”, “Knowledge” and “Best Interests” of the consenting person. There has been unanimity among courts around the world regarding these legal principles. [14]
It may be justified on the view that, existence in Persistent Vegetative State (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of 'sanctity of life' or the ‘right to live with dignity'. The ‘Right to Life' including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. Thus, euthanasia under PVS must be permitted as right to refuse treatment must be permissible in such cases. [15] .
Hence, it is proposed to include a new Section 309-A in the IPC reading “No person shall be guilty of murder or other form of homicide or attempt to commit such offence if the life of the person is extinguished by way of euthanasia.” [16]
G. Section 309 - Attempt to commit suicide
It is submitted that suicide as an offence must be repealed. Suicide is defined as "an act or instance of taking one's own life voluntarily and intentionally; the deliberate and intentional destruction of his own life by a person of years of discretion and of sound mind; one that commits or attempts his self-murder" [17]#p#分页标题#e#
“Suicide or an attempt to commit suicide is not a feature of a normal life. It is an incident of abnormality or of an extraordinary situation or of an uncommon trait of personality. Abnormality and uncommonality are not unnatural merely because they are exceptional. Mental diseases and imbalances, unbearable physical ailments, affliction by socially dreaded diseases, decrepit physical condition disabling the person from taking normal care of his body and performing the normal chores, the loss of all senses or of desire for the pleasures of any of the senses, extremely cruel or unbearable conditions of life making it painful to live, a sense of shame or disgrace or a need to defend one's honour or a sheer loss of interest in life or disenchantment with it, or a sense of fulfilment of the purpose for which one was born with nothing more left to do or to be achieved and a genuine urge to quit the world at the proper moment are among the various circumstances in which suicide is committed or attempted. The reaction of the community to all the situations is not uniform and varies from condemnation to acclamation depending upon the situation. Nor all communities further react or have reacted in the same way at all times.” [18]
It is submitted that by criminalizing suicide, there is just a provision of double punishment for a troubled individual whose deep unhappiness had caused him to try and end his life.
Moreover, suicide is more often than not, done under the effect of an underlying psychological illness, or atleast, never done under a normal frame of mind. The IPC as it is, provides for the General Exception of Insanity, thus suicide cannot be termed as an offence as it is “done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to Law." [19]
The right to die or to end one's life is not something new or unknown to civilisation. Some religions like Hindu and Jain have approved of the practice of ending one's life by one's own act in certain circumstances while condemning it in other circumstances. [20] Does this imply that the state condones a slow suicide but not a fast one?
Moreover, the right to live (under Article 21 of the Constitution of India) can be said to bring in its ambit the right not to live a forced life [21] .
In 1971, the Law Commission [22] recommended the abolition of Section 309 of Indian Penal Code. The then Government of India accepted the recommendation but could not pass the bill in the Lok Sabha in 1979 as the elected body was dissolved and the bill elapsed. Further, this recommendation was reiterated in 2008 by the Law Commission [23]
H. Section 315 - Act done with intent to prevent child being born alive or to cause it to die after birth (Female Foeticide)
Female Foeticide has not been specifically dealt under Indian Penal Code, although sex determination is punishable under a separate statute. [24] However, abortion of the girl child consequent to such sex determination has not been made punishable under the abovementioned Act. This menace is of such a widespread character that the Child Sex Ratio has shown a steady decrease from 1961 till 1991 :
1961: 976 per 1000 males [25]
1971: 964 per 1000 males [26]
1981: 962 per 1000 males [27]
1991: 945 per 1000 males [28]
2001: 933 per 1000 males [29]
In order that such menace be curbed, it becomes necessary to include a specific offence relating to this within the Penal Law of the country. Thus, it is proposed that Section 315 be amended to include female foeticide as a specific offence and the punishment for such offence be greater than that for normal child abortion as laid down in the same section as this offence is of a greater gravity.
I. Section 320 - Grievous hurt
It has also been recommended [30] that the time period of 20 days mentioned in clause “eighthly” of this section, be decreased to 15 days due to the reason that 20 days is too long a period for a person to not follow his ordinary pursuits, and too stringent a requirement for a person to undergo such suffering for such a long period of time in order to qualify for grievous hurt under this section.
J. Section 324 - Voluntarily causing hurt by dangerous weapons or means (Acid Attacks)
It is proposed that a new explanation be added to this section to curb these atrocious and ghastly incidents. Although, acid attacks have previously been charged under Sections 320, 322, 325 and 326 of the Indian Penal Code, these are extremely insufficient [31] due to the following reasons [32] :
The definition of grievous hurt is not broad enough to cover the various kinds of injuries which are inflicted during acid attacks.
The section does not cover the act of administering acid.
The section gives wide discretion to the courts as far as punishment is concerned. A review of various cases on acid attacks in India shows that normally inadequate punishment is awarded in these cases.
The section in the IPC does not punish the intentional act of throwing of acid if no injuries occur.
The section also does not specify who the fine should be awarded to.
Moreover, it is suggested that if a person has thrown or administered the acid on another person, a presumption should be raised against the person, who has thrown or administered the acid that he has done so, deliberately.
These amendments are proposed due to the immense gravity of this offence as “the acid is usually thrown at the victim’s face. Furthermore, an acid attack has long-lasting consequences on the life of the victim who faces perpetual torture, permanent damage and other problems for the rest of her life. Victims normally feel worthless, afraid and modified and become social outcasts because of their appearance. They may become too traumatized and embarrassed to walk out of their house and carry out simple tasks let alone get married, have children, get a job, go to school, etc. Even if they are willing to pursue a normal life, there is no guarantee that society itself will treat them as normal human beings given their appearance and disabilities after an attack. They may not be able to work, or be able to find a job, and thus perpetually struggle to survive.” [33]
K. Assault to Minor
In a landmark judgement, [34] it was laid down that assault to a minor is not sufficiently dealt within Section 354, therefore it is suggested [35] that a new section 354A be added which may read as follows:
“Whoever assaults or uses Criminal Force to any minor under sixteen years of age in an indecent, lascivious, or obscene manner, he shall be punished with imprisonment of either description which may extend to three years or fine or both.”
L. Section 362 - Abduction (Hijacking and Terrorist Activities)
It is submitted that the present section is very mild, vague and non-specific. This is because certain offences such as hijacking of aircrafts and vehicles are not distinctively included in its ambit. In recent times, there have been many incidences of hijacking and the punishment provided in this section is gravely deficient to penalize such grave offences. [36] Thus, a new amendment should be made including a scrupulous provision in the section. [37]
M. Section 375 - Rape
‘Sexual Assault’ to substitute the term ‘Rape’
It is suggested to replace the word ‘rape’ with ‘sexual assault’ so as to cover crimes like sodomy, fingering, insertion of foreign object and other similar offences which do not come under present definition of rape.
Amendments are needed to be made in this section for widening its scope so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal penetration, finger/anal penetration and object/ vaginal penetration. [38]
In the definition of sexual assault under Section 375, there should be an explanation saying that penetration shall mean penetration to any extent whatsoever; as the penetration is never complete in the case of children. Accordingly, Section 376 also shall be modified in the light of change in Section 375. Various other changes need be made in Sections 376, 376A to 376D.
The Law Commission has recommended that punishment under section 376A be extended to seven years along with fine. Also, under sections 376B, 376C and 376D, punishment should be enhanced to minimum punishment of not less than five years.
Gender neutrality
‘Sexual assault’ should ensure gender neutrality, which would assure that protection under the said sections can be given to victims of either gender.
Not only women but young boys are being increasingly subjected to forced sexual assaults. Forced sexual assault causes no less trauma and psychological damage to a boy than to a girl subjected to such offence. Boys and girls both are being subjected to oral sexual intercourse too. Some of the Western countries have already done this. [39]#p#分页标题#e#
Marital Rape
Forced sexual relations within a marriage - whether the force is physical or psychological is a crime. Marriage is a relationship of equality in which a woman does not lose her sexual freedom when she marries. There are now very few countries in the world which do not criminalise marital rape. Sadly, India is one of these few countries. Rape is rape. Be it stranger rape, date rape or marital rape. The law does not treat marital rape as a crime. [40] Marital rape often has severe and long-lasting consequences for women. [41]
In 1993, marital rape became a crime in USA. [42] In England, the marital rape exemption was abolished in its entirety in 1991 through decision of courts in various cases.
In India, only two groups of married women are covered by the rape legislation — those being under 15 years of age and those who are separated from their husbands. While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for a period of 10 years or more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to the victim.
The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and bounds and “right to live with human dignity” is within the ambit of this article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is submitted, that the exception provided under Section 375 of the Indian Penal Code, 1860 is violative of Article 21 of the Constitution. [43] Further, many women’s organizations and the National Commission for Women have been demanding the deletion of the exception clause in Section 375 of the Indian Penal Code. [44]
Also, Article 14 of the Constitution guarantees the fundamental right that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 14 therefore protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860 discriminates with a wife when it comes to protection from rape. Moreover, the Commission on Human Rights [45] , also recommended that marital rape should be criminalized.
Article 34 of the Convention on Rights of the Child 1989 ordains the Member States to protect the child from all forms of sexual exploitation and sexual abuse. Marital Privacy as a concept should now be recognized. [46]
Forced sexual intercourse by a husband with his wife should equally be treated as an offence just as any physical violence by a husband against the wife is treated as an offence. [47]
Explanation (2) to draft section 375 (which says that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, does not amount to sexual assault) should thus, be deleted.
Furthermore, Section 376A, which provides a lesser punishment to a husband who sexually assaults his own wife living separately in the aforesaid circumstances, they argued, is arbitrary and discriminatory. They say that once section 376A is deleted, the husband in such a case would be punished under section 376(1) which carries higher punishment than section 376A. [48]
Exception to Section 375 – Age limit is suggested to be increased from ‘sixteen years’ to ‘eighteen years’. [49]
New Section of ‘Unlawful Sexual Contact’ and sexual harassment at work place
Law Commission has called it the offence of ——unlawful sexual contact'. This section is intended to cover a wide variety of offences including sexual harassment at work place. Sub-section (1) of this new section would cover touching, directly or indirectly, with a part of the body or with an object, any part of the body of another person (not being the spouse of such person), with sexual intent and without the consent of such other person. In case the other person is below sixteen years of age, law commission has recommended higher punishment. If the offence of unlawful sexual contact is committed on a young person by a person with whom such young person is in a relationship of dependency, the punishment is rigorous imprisonment which may extend to seven years or with fine or with both and in case the offender happens to be the father, grandfather or brother, a still higher punishment is provided for. [50]
O. Section 376C – to be changed from ‘Intercourse by superintendent of jail, remand home, etc.’ to ‘Sexual abuse of a minor’
A person is said to commit “sexual abuse of minor” against a minor under the
age of eighteen years if the person penetrates his penis into the vagina, the anus or urethra or the mouth of a minor or manipulates any object or part of his or her body or that of the minor so as to cause such with or without the will or consent of the minor.
It is also suggested to include in its ambit, any person, who with sexual intent, invites, counsels or incites or exhibits pornography a minor to touch, directly or indirectly, with a part of the body or with an object, the body of any minor, including the body of the person who so invites, counsels or incites, or touches, with sexual intent, directly or indirectly, with a part of the body or with an object, any part of the body of a minor, shall be punished. [51]
P. Section 377 - Unnatural offences
It is projected that Section 377 of the Act be amended so as to exclude consensual sex between adults in private. Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices. [52] It is averred that the said section infringes the fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution of India as it discriminates on the basis of sexual orientation, violates the right to privacy [53] and the right to live with human dignity. [54]
It should apply only to non-consensual penile vaginal sex and penile non-vaginal sex involving minors. Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexual minorities; which consequently drive the activities of homosexuals, as well as sexual minorities underground, thereby crippling HIV/AIDS prevention efforts. It thus creates a class of vulnerable people that is continually victimised and directly affected by the provision. Section 377 acts as a serious impediment to successful public health interventions. [55]
Also, the Law Commission of India has focused on the need to review the sexual offences laws in the light of increased incidents of custodial rape and crime of sexual abuse against youngsters, and inter alia, recommended deleting the section 377 IPC. [56]
Hence, a change is proposed in the said section so as to let it continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors but excluding homosexuality and other forms of consensual intercourse.
Q. Custodial Crimes
Crimes committed in police custody are becoming so recurring that it appears that the present law dealing with normal crimes happening outside police custody are appearing just not enough to deal with them, because there is a “diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death.” [57]
Acts of torture in police custody are obligated to be made a punishable offence under the National Criminal law, even by international law [58] . Also Section 330 of the code does make torture punishable, yet it is thought that this section is insufficient to deal with heinous crimes that lead finally to culpable homicide within the confines of the jail and go unpunished due to various reasons [59] .
Many a time arrests are made without even taking warrants or making any records of arrest and the crimes committed during these arrests go completely scot free as it becomes absolutely impossible to prove the crimes “beyond reasonable doubt” [60] .
There are also many cases where the death is caused in custody of authority other than the police. These cases also need to be included in the IPC [61] . Thus suitable amendments need to be made.
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