Challenge to Unconstitutional Provisions of Anti-Rape Law

I reproduce below the full text of a writ petition I filed in public interest in the Delhi High Court along with two others on 17 March 2017.

Kapil Sibal, among the most eminent lawyers of India, is arguing this case. 

We invoked Article 226 of the Constitution of India  for challenging the validity of some of the provisions of the Criminal Law Amendment Act, 2013 which have made the anti-rape law draconian and easy-to-abuse.

The High Court has issued notice to the Central Government and set July 5, 2017 as the next date of hearing.

​ Kapil​

 has taken on this case pro bono because he saw merit in the arguments I put forth in the petition,  which I drafted personally in consultation with and with inputs from lawyer friends.

​ ​

Kapil is an old friend

​.​

 We often disagree on important issues but it has not caused any bitterness on either side.

1.   The petitioners are citizens of India. Petitioner No.1 is an acclaimed social scientist and public intellectual. She is also widely acknowledged as having pioneered women’s rights and human rights activism both in India and abroad. The Petitioner No. 1 currently holds an extremely prestigious fellowship as the Maulana Azad National Professor at the Indian Council of Social Science Research. In addition, she was formerly a Professor, at the Delhi-based Centre for the Study of Developing Societies, as well as the Director of the Centre’s Indic Studies Project. The Petitioner No.1 is also the founder-editor of the internationally acclaimed publication, ‘Manushi – A Journal about Women and Society’ which was started in 1978 and run by the non-profit organization, Manushi Trust. She is known particularly well for her long association with gender justice and women’s rights. Petitioner No. 2 is a woman charged under section 376 read with section 109 of the Indian Penal Code (hereinafter ‘the IPC’) and other offences.  Petitioner No. 3 is a man convicted under section 376 (1) in a case where the Prosecutrix admits voluntary sexual intercourse., But since it is alleged that she is below 18, despite the fact that her age has not been verified by medical examination, he is in jail awaiting sentence.

2.  By this petition, the changes wrought in sections 375 and 376 IPC by the Criminal Law Amendment Act, 2013 are challenged as discriminatory, arbitrary and severely prone to abuse. On the one hand, the definition of “rape” has been widened to include non-penetrative acts incapable of medical corroboration, the cut-off age for “statutory rape” or “child rape” has been raised to 18 and  even for adult rape, ‘consent’ has been defined more strictly. On the other hand ‘judicial discretion to award less than 7 years has been taken away, even though a large number of independently unverifiable cases and even perfectly consensual acts will now be counted as rape. Following these amendments, there has been a startling spurt in false cases in Delhi, with over 53 per cent of the total cases registered in Delhi proving to be fraudulent. Of the total rape complaints in a year, over 25 percent of involve a breach of promise to marry and over 30 percent involve consensual elopements, with revenge emerging as a prime motive for complaint as per studies conducted by the Delhi Commission of Women and the Hindu newspaper.

3.     The Petitioner No.1 in her 35 year long engagement with providing legal aid and counselling for women and disadvantaged or unjustly treated groups and individuals in society, has seen the actual working of laws from very close quarters and is therefore deeply concerned about the growing incidents of misuse and abuse of several laws ostensibly enacted for the protection of women. Through her journal Manushi as well as her active engagement with providing legal aid and advice to women victims of domestic violence and sexual atrocities, the Petitioner No.1 played a leading role in mobilizing public opinion against such crimes. The Petitioner No.1, through painstaking investigations and by building a rapport with the victims of atrocities, was among the first to record and publish first-person testimonies of rape survivors, women battling sexual harassment as well as women survivors of gang rapes during communal riots and massacres. While working in relief camps she was able to document the first-person testimonies of women during the 1984 mass violence against the Sikhs in Delhi. She carried out a similar exercise following 1987 communal riots in Meerut & Maliana followed by Bombay riots of 1992-93. All these reports foregrounded for the first time, women’s experience during riots which till then had rarely got the kind of attention that loss of male lives and property did.

4.  The Petitioner has also provided legal aid and emotional counselling to numerous victims of sexual violence, sexual harassment at the work-place as well as incest-rape. Indeed, successive governments have consulted her on the drafting of various laws. Therefore, she is acutely sensitive to the vulnerable predicament of women who have been raped or are being subjected to prolonged sexual harassment at work.  She has also filed a PIL the Supreme Court in 1982 regarding tribal victims of rape by outsiders, who, as a consequence were being treated as outcastes by their own society and deprived of all economic rights in both parental land as well as in their marital family. The case is reported as Madhu Kishwar v. State of Bihar (1996) 5 SCC 125. The Petitioner’s credentials are shown in her Curriculum Vitae annexed as ANNEXURE P-1.

5.      It is precisely because of her lifelong commitment and long track record in working to strengthen the culture of equity and social justice in India, that the Petitioner No.1 feels deeply perturbed at the widespread abuse of legislation claiming to be “pro-women.” This abuse has been made possible because draconian provisions have been added in the recent years to various “pro-women” laws, which   undermine the constitutional right to life and liberty owing to their susceptibility to  being used to arbitrarily target innocent persons on malafide  grounds. It is a common feature of many laws, enacted ostensibly for women’s protection and the strengthening of women’s rights, that in practice they work to negate the presumption of innocence, a founding principle of Indian criminal jurisprudence and arm the police with enormous powers of arrest and harassment, thus jeopardising life and liberty.  The present petition is filed challenging the Criminal Law Amendment Act 2013, particularly in relation to the changes brought about under sections 375 and 376. The Petitioner No.1 is also filing a separate challenge with regard to other provisions such as S.498A IPC.

6.      Chiefly,  the Criminal Law Amendment Act 2013 makes the following changes: (i) the definition of ‘rape’ in S.375(a) – 375(d) has been widened to include even non-peno-vaginal acts that are incapable of medical corroboration; (ii) the age of consent has been raised from 16 to 18 years of age making every case of  such sexual intercourse or intimacy with a woman under 18 ‘statutory rape’  or “rape of a minor”, (iii)  even in adult rape, the term ‘consent’ has been given a very constricting & easy-to-abuse meaning in Explanation 2 of S.375 making it almost impossible to establish the charge by circumstantial evidence; and (iv)  the discretion of the court to award less than 7 years for good and adequate cause, in any situation at all, has been taken away by repealing the previously existing provisos to Sections 376(1) and (2).  When viewed along with the fact that under the present law, even the uncorroborated testimony of the Prosecutrix  de hors  any medical, independent oral or documentary evidence is sufficient to convict a person charged with rape, the amendments can justly be called draconian. A true and typed copy of the Criminal Law Amendment Act, 2013 is annexed hereto as ANNEXURE P-2.  In the wake of these amendments brought about by the 2013 Amendments in sections 375 and 376, IPC, the following questions of law arise which are : 

QUESTIONS OF LAW

• Is it reasonable, fair, just or rational to classify as ‘rape’, acts other than peno-vaginal intercourse that are incapable of medical corroboration, when the sole testimony of the Prosecutrix is sufficient to convict?
• Granting that such acts, as for e.g. touching a woman’s private parts or subjecting her to intimate embrace or body contact are certainly offensive if forced upon a woman, should they all be equated with rape and punished with equal severity, and does such an equivalence in penal consequences not violate the principle of proportionality in penalty and amount to a violation of Article 14 as it bears no nexus to any rational objective?
• Do the present definitions of rape  as wrought in 2013 make it easy to subject an accused to a rape prosecution by the mere circumstance of his having been alone in the company of a woman, who may, for extraneous reasons  file  a complaint, since no medical corroboration is possible or required for the non-penetrative acts now included in section 375? If so, is Article 21 not violated in the process since it renders an accused vulnerable to arrest, prosecution, conviction and loss of reputation on the flimsiest of grounds?
• Are the loosely worded definitions not an easy handle for consensual acts being given the taint of ‘rape’ ex post facto, by persons actuated by malice, as many reported cases show?
• Is the expanded construction of ‘statutory rape’ or ‘child rape’ brought about by raising the age of consent for women to 18 and above, not palpably irrational and perverse, in a social context where consensual relationships are  routinely formed by young adults and persons in their late teens?
•  In a penal statute, are the words “where she is unable to communicate consent” in S.375 not too vague and liable to abuse in the absence of any specification as to the nature of inability to express consent?
• Whether a minimum mandatory term of sentence is constitutional, in so far as the same is an abridgment of judicial discretion, which is key to a fair  sentencing process particularly in cases of rape where the uncorroborated testimony of a Prosecutrix is sufficient to rest a conviction ?
•  Is it not arbitrary and restrictive of due process to remove the proviso to section 376(1) and thus extinguish the judicial discretion to award less than 7 years for adequate and special reasons ?
• Is a mandatory minimum sentence in section 376 IPC not contrary to the principles of proportionality and judicial discretion that must at all times inform criminal justice?
•  Assuming that a minimum mandatory sentence is to be retained, is pegging it at 7 years for cases falling under section 376(1)  not unduly harsh and arbitrary ?
•   Whether abridgment of judicial discretion in sentencing is not rendered excessively arbitrary in the wake of the widened meaning of ‘rape’ and the restrictive meaning of ‘consent’ as wrought by the Criminal Law Amendment Act of 2013?
• In view of the devastation caused to the entire family of ath accused in a context where false and motivated cases of rape are becoming common, should the law not ensure anonymity to the accused as well as it does for the prosecutrix, in cases of rape?

7.   The aforementioned amendments have made it easy to register a rape complaint, without the requirement of objective substantiation of the charge. As soon as an accusation is made, there is an arrest, and aside from the deprivation of liberty, the filing of such a case, leads to the irrevocable loss of reputation not just for the targeted individual but also for his entire family who are devastated by the ignominy of the heinous charge and the trauma of being treated as social outcastes.  The media trial that accompanies rape complaints, especially in cases of high profile public figures, often influences the judicial process whereby even getting bail becomes a herculean challenge.

8.    Statistics compiled by government agencies indicate that immediately following the amendments, there has been a disturbing spurt in the filing of rape complaints which have ultimately been found by courts to be false. For instance, the Delhi Commission of Women (hereinafter ‘the DCW’) has come out with startling statistics showing that 53.2% of the rape cases filed between April 2013 and July 2014 in the capital were found to be 'false'.[1]  The report says that between April 2013 and July 2014, of the 2,753 complaints of rape, only 1,287 cases were found to be true and the remaining 1,464 cases were found to be false.  The report further reveals that between June 2013 and December 2013, the number of cases found to be untrue were 525. Between, January 2014 and July 2014, the number of false rape cases filed was 900. In many cases, the complainant turned hostile, and investigation revealed that revenge was the most common reason for filing a false complaint.  In all, in 2013 there were a total of 1,559 cases of rape registered in Delhi, where the acquittal rate was 78%. This was a 22% jump from the earlier 46% of acquittal in 2012, when there were a total of 680 cases filed.

9.    In Delhi, The Hindu newspaper conducted a detailed survey, which indicated that the nature of reported sexual assault in Delhi is far more complex than earlier imagined. Their analysis revealed that one-fifth of these were ultimately wound up because the complainant either did not appear or turned hostile, while another 25% had to do with the “breach of promise to marry”.  The study revealed further that a total of 583 cases were decided in Delhi in 2013. Out of the 460 cases which were fully argued before the Sessions Courts, nearly 30% involved elopement of the boy and girl, followed commonly by a complaint of abduction and rape by the girl’s family. In nearly two-thirds of the 174 cases of elopement, the woman insisted in her deposition before the police, doctors and magistrates that she was in love with the accused and, in most cases, even got married. The women also complained that they had been subjected to repeated beatings and threats by their parents who even, at times, forced them to undergo abortion. It was further observed in 67 of 174 cases of alleged elopement that the girl, though first admitting (either in the FIR, medical examination or to the magistrate) that she eloped of her own volition, subsequently turned against the accused. In 10 of the cases of alleged elopement, the intercourse though consensual, resulted in ‘rape’ since the girl was found to be a minor.   

Compiled Statistics for the year 2013 are given below:

•  Total rape cases decided in Delhi in 2013 – 583
• Complainant did not appear or turned hostile -123
• Cases involving eloped couples or allegedly eloped couples – 174
•  Breach of promise to marry – 109
• Alleged rape by neighbour or acquaintance – 111
• Alleged rape by immediate family member- 30
• Alleged rape by stranger- 12
• Others 24

True copies of the newspaper reports from DNA and The Hindu are annexed herewith as ANNEXURE P-3 (COLLY).

10.    The combination of inadequate professional training poor infrastructure and endemic corruption in the police force resulting in lax investigations has lead to the denial of justice to genuine victims of sexual violence on the one hand and on the other hand, has made it easy to destroy the lives of men falsely accused of rape. As an illustrative example, the Petitioner No. 1 would like to refer to the nightmarish experience of her close relative who was a victim of false prosecution made possible by the police’s nexus in filing a trumped up case. A true copy of her updated write-up on the issue as published on  Manushi website is annexed hereto as ANNEXURE P-4.  In this instance, the Petitioner No.1’s family chose not to yield to extortion but instead fought the matter out and has been pursuing the case vigorously for  the last 5 years to ensure that the extortionists get due punishment. However, such blackmail has become rampant and goes unreported since most victims do not dare protest or lodge complaints. 

11.     The Petitioner No.1 submits that all of these circumstances  have led to a widespread backlash of public opinion against feminist groups, and have in fact, destroyed the legitimacy of women’s rights activism.  When the Petitioner No. 1 founded Manushi in 1978, women’s rights activists used to be celebrated and admired for their moral courage in giving voice to the voiceless.  But the irresponsibility with which a section of women’s rights activists have made use of these laws, has lent almost fascist connotations to feminism, with terms like ‘Feminazi’ coming into currency. Therefore it is respectfully submitted that this Hon’ble Court must assess the wisdom of these “women-protection measures” that have proved ruinous for countless families.

12.        The circumstances under which these draoconian provisions were added to the anti-rape law, explain why they were introduced without due deliberation. In the wake of the horrific gang rape of Nirbhaya and the nationwide outrage it caused, the Central Government appointed a committee headed by Justice J.S. Verma to look into possible amendments in the criminal law, on the well-intentioned but unfounded assumption that the existing laws were inadequate to deal with the growing cases of sexual atrocities on women.  In the emotionally charged atmosphere prevailing in December 2012 -  January 2013, particularly in the capital, the Verma Committee rushed through its deliberations within one month. The haste and lack of adequate deliberation is evident from the fact that the public hearing organized by the Committee was held just 48 hours before they were to submit the voluminous report. Nevertheless, the Petitioner No.1 tried to communicate both orally and in writing her concerns regarding the proposed amendments in the large gathering of activists and lawyers invited by Verma Committee to Vigyan Bhavan. In her submissions the Petitioner No.1 pointed out that the proposed amendments were repeating the same mistake of diluting the “due process” requirement in all laws enacted since the 1980’s for the ostensible purpose of strengthening women’s rights.

13.     The Verma Committee recommended some draconian provisions even while it rejected some patently absurd and unrealistic suggestions made at the hearing. The recommendations were worrisome since various high courts in the country as well as the Hon’ble Supreme Court have passed several orders and judgements decrying the ease with which laws against dowry, domestic violence and even rape are being misused for the purpose of blackmail, extortion and revengeful retaliation causing havoc in the lives of countless innocent families.  However, without giving enough thought to their likely impact when implemented on the ground, the Verma Committee recommended certain amendments.

14.        The Criminal Law Amendment Act, 2013 was based primarily on the recommendations of the Verma Committee, and was also enacted in haste. In the emotionally charged atmosphere that prevailed at the time, Parliament  did not undertake due deliberation of the amendments or debate each clause, anxious to appease public sentiment and enact more stringent rape laws.

15.        The Department - Related Parliamentary Standing Committee on Home Affairs tabled its 167^th Report on the Criminal Law Amendment Bill, 2012  before both houses of Parliament. The Committee considered the various amendments proposed by the Bill, but made no reference to any discussion as to the reasons as to why the provisos to Section 376 permitting the award of a sub-minimum sentence were deleted. In fact, the during the debates in the Rajya Sabha on the promulgation of the 2013 Amendment Bill, several members of Parliament expressed serious doubts about the extreme haste with which the Bill was moved, without appropriate consultation or adequate consideration of the pros and cons that would result from the passing of the amendment. The One Hundred and Sixty Seventh Report by the Department-related Parliamentary Standing Committee on Home Affairs, on the Criminal Law (Amendment) Bill, 2012 and the synopsis of debate in the Rajya Sabha dated 21.03.2013 is annexed hereto as ANNEXURE P-5 (COLLY.).

16.  The IPC, post the Criminal Law Amendment Act 2013, has categorised sexual misdemeanour into two broad categories:- Offences of Sexual Harassment under S.354A, B, C and D IPC and  more serious Sexual Offences under the S.376 series.  S.375 defines rape. S.376 (1) penalises one category and 376(2) penalises the aggravated category. S.376A to S.375D penalise rape and sexual intercourse in certain specific situations, not listed under S.376 (1) and (2).  Notwithstanding such an elaborate categorisation, in the definition under S.375, a whole range of acts not hitherto within the definition of rape have been added, without intelligible differentia  even qua the penalties.

17.        In this connection, the statutory history of the provisions and the discussion surrounding the same through the decades is useful to see.  From the inception of the Indian Penal Code, 1860 the offence of rape was considered serious enough to be punishable with imprisonment for life or a term extendable up to 10 years. However, in recognition of the fact that circumstances may dictate a wide range of punishments from which the courts must choose, no statutory minimum was provided. 

18.     In 1983, by the Criminal Law Amendment Act, for the first time the statutory minimum was prescribed for rape.  ‘Rape’ was graded in two categories. S.376 (1) penalises one category and 376(2) penalises the aggravated category A statutory minimum of seven years was prescribed for the first category under 376(1) IPC and that of 10 years was prescribed for the aggravated category under 376 (2) IPC. Nevertheless, it was considered advisable to give the court the discretion to award less than the minimum sentence “for good and adequate reasons” in respect of both categories.  Sections 375 and 376 IPC, as they read prior to 1983, post 1983 and post 2013 are extracted in Annexure P-6. A short table showing the differences in the penal clauses is annexed hereto as Annexure P-7.

19.    In 1971, the Law Commission published its 42^nd Report, where it  was observed at paragraph 16.118 on page 278 of the Report as follows: 
“16.118 Section 376 to be amended - In view of the proposed changes in the definition of rape, the latter part of Section 376 has to be omitted. Further, in place of the punishment now provided in the section, viz., imprisonment for life or imprisonment of either description for ten years, we propose to substitute rigorous imprisonment for fourteen years. We considered the question whether a minimum sentence of say, three years imprisonment, should be provided for this offence, but decided against it. Adequate punishments are imposed by Sessions Courts by which this offence is ordinarily triable. The section will accordingly read as follows:

“376. Punishment for rape.---Whoever commits rape shall be punished with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to fine.””

A true and typed copy of the relevant extracts of the 42^nd Law Commission Report is annexed hereto as ANNEXURE P-8.

20.       In 1980, by its 84^th Report, the Law Commission examined the issue as to whether there should be a minimum penalty for rape. Expressing the view that there should not be a mandatory minimum punishment, the Law Commission observed at paragraph 2.27 on page 11 of the Report as follows:

“2.27 Minimum punishment not favoured.-…it should be noted that a rule prescribing a certain minimum punishment would not be in consonance with the “modern penology” which has been of late expounded in many cases by the Supreme Court. The circumstances in which the offence of rape is committed differ from case to case. Section 376, Indian Penal Code permits the Court to award life imprisonment or imprisonment upto ten years. The discretion of the Court in the matter of punishment should not be fettered by prescribing a certain minimum sentence. If the sentence awarded is heavy or light, it can always be corrected by the appellate or revisional court.” A true and typed copy of the relevant extracts of the 84^th Report of the Law Commission of India is annexed hereto as ANNEXURE P-9.

21.    In 1997, while preparing its 156^th Report, the Law Commission considered the question of mandatory minimum sentencing generally. Its views were as under (at paragraph 2.17 on page 39 of the Report):

“2.17. ……….by virtue of Criminal Law Amendment Act of 1983, minimum sentence in respect of offence of rape has been prescribed under sections 376(1) & (2). A question whether there should be such minimum sentence in respect of some more offences was debated and ultimately consensus is that restrictions on judicial pronouncements in the matter of award of sentence on principle is not a healthy practice. There may be instances occasionally where judges have failed to award proportionate sentences, but that cannot, however, be a factor to assume that the judges as a whole have failed to award adequate sentences. In the 14^th Report as well as in the 42^nd Report, The Law Commission examined this question and took the view that except in exceptional cases there should not be any provision for a minimum sentence. We agree with this view.” A true and typed copy of the relevant extracts of the 156^th Law Commission Report is annexed hereto as ANNEXURE P-10 (Colly).

22.        In the year 2000, the Law Commission again examined the law with respect to rape.  By then, a mandatory minimum of 7 years had already come into the law by virtue of the amendments of the year 1983. The question was, whether the provisos to S.376(1) and (2) allowing the court a discretion to award less than the minimum terms of seven and ten years  prescribed therein, “for adequate and special reasons” should be retained. The Law Commission,  in its 172^nd Report  came to the view that a  non-negotiable minimum was unjust and such a proviso was  proper, and  observed as under :

3.2.2. Views  of  Sakshi considered.-   Though   the representatives  of  Sakshi  have suggested that we should  delete the second proviso  to  section  376  (1)  and  the proviso to section 376 (2) (which confer a discretion upon  the  court  to  award  a  sentence lesser than the minimum  punishment prescribed by the  sub-sections),  we  are  not  satisfied  that  there  are any good reasons for doing so. Any number of  situations  may  arise,  which  it  is  not possible   to  foresee,  and  which  may  necessitate  the awarding of lesser punishment than the minimum  punishment prescribed.    Safeguard against  abuse  is  provided  by requiring that adequate and special reasons  be  mentioned in the judgment, for awarding such lesser punishment.  Nor is   there   justification  in  the  criticism  that  such discretion once conferred is liable to be abused  or  that it will always be misused to help the accused. (emphasis supplied)

A true and typed copy of the relevant extracts of the 172^nd report of the Law Commission of India is annexed hereto as ANNEXURE P-11.

23.     This shows that there was an abiding wisdom in providing for  discretion in sentencing and even to award a sub minimum sentence, in the case of rape. After giving the matter thought, the Law Commission recommended retaining the provisos to Section 376 (1) and (2) categorically dispelling the argument that such a proviso was prone to abuse. It recognized the truth that mistakes cannot be avoided by limiting discretion.  Mistakes are corrected by building jurisprudence.

24.       In 2003, the Malimath Committee Report disagreed with the suggestion that the definition of “rape” under S.375 IPC should include non-penile penetration. The Malimath Committee felt that although it did constitute a serious violation, such acts must be categorised and penalised separately. A true and typed copy of the relevant extracts of the Malimath Committee Report, 2003 are annexed hereto as ANNEXURE P-12.

25.    A draft bill of 2012 removed the provisos to Sections 376(1) and 376(2), with no particular reason assigned for this removal.  It was this Bill that the Verma Committee considered. The Criminal Law Amendment Bill 2012 was introduced in Parliament on 3rd December 2012 and was referred to the Department-Related Parliamentary Standing Committee on Home Affairs. After the Nirbhaya incident of the 16^th of December 2012, the Verma Committee was formed. The Committee largely agreed with Criminal Law Amendment Bill 2012 and in addition recommended some more amendments.  Pursuant to this, the Criminal Law Amendment Bill 2012 was withdrawn and the Criminal Law Amendment Bill 2013 was introduced in parliament, the Department-Related Parliamentary Standing Committee on Home Affairs examined Criminal Law Amendment Bill 2012 and tabled its report on 1.3.2013 before the Rajya Sabha, and on 4.03.2013 before the Lok Sabha.

26.     The Report contains no discussion of the reasons for which the provisos were removed, save for para 2.2.5 at Page 16, Chapter II which merely contains a bare statement by way of a “Response of the Home Secretary” that the proviso is being removed, without any further discussion on the why’s and the wherefores of this course. Para 3.2.29 at Page 33, Chapter III, Para 5.10 at Page 48, Chapter V and Para 5.18 at Page 59-60, Chapter V of the 167^th Report of the Department-Related Parliamentary Standing Committee on Home Affairs where this response is recorded is already annexed hereto as part of Annexure P- 5.

27.     The Verma Committee Report of 2013 did not discuss the aforesaid ratiocinations or the pros and cons of a proviso allowing for a sub-minimum punishment at all, although it had existed ever since 1983 when a minimum mandatory penalty was first prescribed for rape.  However, even without any reference or discussion, the resultant law removed the proviso enabling the court to award a lesser punishment for good and proper reason. In fact, the during the debates in the Rajya Sabha on the promulgation of the 2013 Amendment Bill, several members of Parliament expressed serious doubts about the extreme haste with which the Bill was moved, without appropriate consultation or adequate consideration of the pros and cons that would result from the passing of the amendment. A true and typed copy of Bill No.130 of 2012, being the Criminal Law Amendment Bill, 2012, is annexed hereto as ANNEXURE P-13.

28.      The widened definition of “rape” and the expanded nature of associated circumstances have effectively reduced the evidentiary requirements to establish the offence.   With the factum of consent resting entirely on the prosecutrix, acquittal becomes almost impossible in law if the prosecutrix sticks to her story even though it may be false.  This is not to suggest that the acts described in the newly constituted Section 375 are not offensive, if forced upon a woman.  However, the fact that many of these acts are incapable of being verified by medical corroboration would make it easy for false complaints to be filed, and also, to succeed.  In short, if a woman is so minded, she can repeatedly assert that a rape occurred, even if it is false and subject the accused to the agony of a prosecution and even incarceration.  Therefore, even though the acts listed in the amended S.375 IPC are offensive, there should nevertheless be a gradation inter-se, at least with regard to the penalty.  Otherwise, the provisions are seriously liable to misuse.

29.   It is submitted that even without going into the constitutionality of mandatory minimum sentences generally, it may be pertinent to note the views of several legal scholars of other democratic jurisdictions, who have consistently held that mandatory minimum penalty laws do not achieve any of the purposes of punishment necessitated by criminal philosophy, namely: deterrence, retribution, incapacitation or rehabilitation. For example, scholar Michael Tonry, who is widely regarded as an expert in sentencing theory has long been of the view that such penalties “accomplish few of their stated objectives and produce unwanted consequences. Their deterrent effects range from nonexistent to short-lived… They sometimes result in imposition of penalties more severe than anyone immediately involved believes appropriate.” It is perhaps for this reason that US Supreme Court Justice Anthony Kennedy was compelled to state that he “… can neither accept the necessity nor the wisdom of federal mandatory minimum sentences…. In too many cases, mandatory minimum sentences are unwise or unjust.” Some of the leading studies which bring to light the profound shortcomings of mandatory minimum sentences globally are:

i.     Declan Roche, “Mandatory Sentencing”, Trends and Issues in Crime and Criminal Justice, Australian Institutue of Criminology (December 1999)

ii.   Barbara S. Vincent & Paul J. Hofer, “The Consequences of Mandatory Minimum Sentencing Terms: A Summary of Recent Trends”,  Federal Judicial Centre (1994)

iii. Attorney-General Robert Clark “Mandatory Minimum Sentencing”,  Law Institute of Victoria (June 2011)

True extracts of the relevant portions of the above cited research material is annexed hereto as ANNEXURE P-14 (COLLY).

30.  Additionally, legal philosophers of great renown have consistently been of the view that the fundamental requirements of just sentencing namely that there be ‘proportionality between the gravity of the offence and the degree of responsibility of the offender’ to the crime is grossly affected by the imposition of mandatory minimum sentences. The removal of judicial discretion has been regarded as extremely problematic. On proportionality, the position is summed up best by the Constitutional Court of South Africa in S v Dodo 2001 (5) BCLR 423 (CC)] which observed that: “To attempt to justify any period of penal incarceration, let alone imprisonment for life.., without inquiring into the proportionality between the offense and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity. Human beings are not commodities to which a price can be attached ... they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence ... the offender is being used essentially as a means to another end and the offender's dignity assailed.”

31.    On the removal of judicial discretion, Prof. Mary Manikis was compelled to observe that, “the removal of judicial discretion to the judge can be extremely harmful since it does not provide judges with sufficient latitude to assess the moral blameworthiness of the offender or specific circumstances of the offence and offender. Mitigating factors that are hugely important in sentencing might therefore not be given adequate weight which creates disproportionate and unduly harsh sentences”.  Some further material on these aspects is found within the following bodies of work:

i.   Nadim Khan, “The Absurdity of Mandatory Minimum Sentences”, The McGill Daily (February 2015)

ii.   Raji Mangat, “The Costs of Mandatory Minimum Sentencing: More Than We Can Afford:”, British Columbia Law Association Publication (2014).

32.        The Petitioners submit further that though mandatory minimum sentences are found in several common law countries throughout the world, they are very often accompanied by the power to award sub-minimum sentences in exceptional circumstances. This is clearly evidenced by a 2005 report commissioned by the Canadian Government, which undertook a detailed study of the laws in Canada, England and Wales, Scotland, Republic of Ireland, South Africa, Australia and New Zealand, and concluded that: “This report has demonstrated that while mandatory sentences of imprisonment proved popular in the 1990s across a number of common law jurisdictions, closer examination of the laws reveals that many countries allow courts the discretion to sentence below the minimum when exceptional circumstances exist.”  A true and typed copy of the relevant extracts of the report titled “Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models” is annexed hereto as ANNEXURE P-15. Indeed, the Petitioners submit that as demonstrated by the reports of multiple Law Commissions of India, adverted to earlier, this was the mode of sentencing preferred by top Indian legal scholars as well.

33.    The Petitioners would like to point out that even in the context of sexual assault, certain feminist scholars have not favoured the imposition of mandatory minimum sentences. A sample of some of this material for the convenience of the Court is as follows:

i.     Meghan Racklin, “Why Mandatory Minimum Sentecing for Sexual Assault isnt the Answer”, The Establishment (July 2016)

ii.      Nora Caplan Bricker, “Mandatory Minimum Sentence Laws Are the Wrong Response to the Brock Turner Case”, Slate

True and typed copies of the relevant extracts from the above report are annexed hereto as ANNEXURE P-16(Colly).

34.     Global experience has confirmed that it is not that severity of punishment but the certainty of punishment which brings down crime in any society.  Unfortunately, in India it is often seen that shoddy investigation damages cases or the victims  are intimidated into withdrawing cases.  Similarly, the delays in the legal processes and the enormous expense of time, energy and resources involved in litigation prevent a vast number of genuine victims from seeking justice.  This enables many offenders to get away with even heinous crimes.  Instead of removing these infirmities in our police and  criminal justice system, the tendency is to add draconian provisions to each such law whose ineffective implementation agitates the public, leading to disenchantment with the law and order machinery.  Instead of strengthening and professionalizing the institutions responsible for providing safety to citizens and delivering justice, the resort is often to knee jerk alteration of  legal provisions that trample on the sacredness associated with due process requirement.  This is turn provides more arbitrary to powers to an already unaccountable and inefficient police so that laws becomes more and more amenable to abuse and misuse.  In short, the failure of the criminal justice system in using existing laws with integrity cannot be compensated enacting amendments that trample on the constitutional rights of citizens to fair trial through non-partisan laws.

35.    The stated aim of feminism is to assert the principle of equality. No doubt, the Indian Constitution recognizes that women suffer a great deal of disadvantages in our society and hence need special measures for their protection.  With that in view, several special laws have been enacted to strengthen the rights of women in areas where they get treated unfairly. However, such special measures should not end up being so heavily weighted against men that they defeat the very purpose of delivering justice and instead trample on the rights of men and their families, especially those that are wrongly implicated. Gender equality should mean equality before law. This principle cannot be done away with even if special protection measures are necessary in favour of women.

36.        Women do not constitute a homogenous category in India or anywhere else in the world. On the one hand, India has women without education in living in grinding poverty and lacking support systems. On the other hand, there are a growing class of women from elite educated families who have been given all the opportunities to compete with men and even come out winners. In between these two extremes are a whole range of women with varying degrees of advantages and disadvantages. To assume the same level of victimhood for all categories of women and to place the same lethal weapon by way of draconian laws in the hands of all women without regard to their circumstances while assuming all men are always wrong doers and exploitative of women under all circumstances amounts reverse discrimination which can have lethal consequences.

37.     As a consequence of the Criminal Law Amendment Act 2013, even those acts that are completely incapable of medical corroboration are included within the definition of rape.  Furthermore, a crucial aspect of sexual intimacy, i.e. consent, now rests effectively on the sole word of the prosecutrix as it is very difficult to establish by circumstantial evidence.  Even cases arising from prevalent social contexts of consensual intimacy involving women approaching 18, will now constitute statutory rape.  The social context is also no longer one in which women hesitate to come forth with rape complaints.  On the contrary, disappointed women in many failed relationships resort to a complaint under Section 376 IPC.   In view of the settled principle that the sole uncorroborated testimony of the prosecutrix is sufficient for a conviction, a large number of cases of consensual sex now fall within the zone of criminality.  “Crying rape” is commoner than it used to be. This phenomenon has been noted by criminal courts. A man unjustly accused of rape is as much a victim and the family of a rape accused is devastated by the process of prosecution. Therefore, an effective law can only be one that enables the sifting of genuine cases, rather than one that makes prosecution easy.   This Hon’ble Court, must, therefore review the Criminal Law Amendment Act 2013, both in terms of its actual working and in terms of its fidelity to due process norms.

38.       The petitioners have not filed any other petition in any other court and supreme court seeking the same reliefs. They are moving this Hon’ble Court on the following amongst other grounds which are in the alternate and without prejudice to one another:

GROUNDS:

I.                   Rape is indeed one of the most heinous offences and its widespread occurrence in society is a matter of collective shame for any society. Hence combating the culture which gives rise to rape requires not just effective laws but also collective resolve of the entire society, especially the moral torch bearers of that society. However, when laws are not judiciously crafted, when draconian provisions are added as compensation for failure of the law and order machinery to ensure security of life leading to easy abuse of law, it leads to mistrust and disrespect towards all institutions meant for enforcing law and order & dispense justice. The resultant cynicism & nihilism among citizens destroys the collective resolve and ability of society to combat crimes. When women, who are traditionally seen as the moral conscience of society and hence worthy of reverence and special protection measures, are found to be misusing and abusing laws enacted for their protection, it delegitimizes the very idea of special measures for protection of women. The misuse of the above mentioned provisions for the purpose of blackmail, extortion, revenge and other malafide purposes goes to confirm that whichever individual or group in society, irrespective of gender, caste or class, is bestowed with legal power to tyrannize others for its own benefit, will invariably end up doing so. That is why the principle of constitutional equality--which becomes meaningless without equality before law courts--cannot be compromised under any circumstances.

II.                  The widening of the definition of “rape” to encompass even non-penetrative acts is not only irrational, unreasonable and unfair but is also grossly violative of due process, not only because such acts incapable of medical corroboration, but also in light of the fact that the sole testimony of a Prosecutrix is sufficient for a conviction.  It is submitted that the result of these alterations in the law has been that a man may be subjected to the full brunt of the criminal law and the obvious, concomitant loss of reputation merely on account of the circumstance of his having been alone in the company of a woman. Both the unfairness as well as the very real threat to due process are imminently evidenced by detailed material collected and published by organisations of unimpeachable credibility such as the Delhi Commission for Women, showing the disproportionately large number of false prosecutions, the largest percentage of which have been actuated by revenge. The Petitioners submit therefore, that the prevalent circumstances mandate review of the existing legal framework.

III.                There can be no cavil with the fact that certain acts other than peno-vaginal intercourse, if forced upon women deserve strict censure from the criminal law. However, the classification of a range of disparate acts as rape and equation of punishment for these various acts is patently violative of the principle of proportionality in sentencing. It is submitted that it is well known that one of the fundamental principles of even a purely retributive criminal law, is that punishment must bear a clear relationship with the nature of the offence committed. The failure to thus appropriately grade acts according to their severity, is arbitrary, and violates Article 14 of the Constitution of India. The clubbing together of persons who are accused of the commission of widely differing acts is patently irrational, and can have no nexus to any rational objective of a valid criminal law.

IV.                In the case of penal law, it is not sufficient only to construct an offence.  It is also necessary to factor in the process by which a court can objectively assess its occurrence or otherwise.  The current provisions are such that even to acts of consensual sexual intimacy, the colour of rape can be given at will.  Therefore, even if these acts are retained as criminal offences, the principles of justice require that there should a gradation in the criminality accorded to them, otherwise two ends of a very wide spectrum, i.e. a misunderstanding of signs within a friendly relationship and a Nirbhaya like situation end up getting treated as equal offences.  This was also the view of the Malimath Committee.  The reasons for not providing for a statutory minimum and a total discretion in sentencing was clearly that, although rape is a heinous offence, there exists a clear possibility of intimate consensual relationships acquiring the colour of rape.

V.                  At any rate, since non-consensual sex is necessarily punishable, in order to avoid injustice there must be a gradation of penalties for acts that are statutorily defined as rape and discretion must be vested with the judge in the matter of awarding punishment.  This is particularly important because while a sexual act of ambiguous import may technically constitute rape if the woman denies consent, the circumstances may nevertheless dictate the imposition of a lesser penalty.  However, courts have been left incapable of delivering such justice because of the statutory minimum of seven years, (in the case of S.376(1) IPC) coupled with the absence of discretion of awarding a lesser sentence.  It is also precisely for this reason that a mandatory minimum of seven years, particularly without the discretion to award less for good and adequate reasons becomes dangerous.

VI.           The removal of the discretion to award a sub-minimum sentence in exceptional circumstances, particularly for the offence of rape, wherein the absence of direct evidence is equally likely to prejudice the accused, and the sufficiency of the word of the prosecutrix would in any event place the accused at a severe disadvantage patently offends the rights of accused persons under Article 21 of the Constitution of India.  It is well settled that penal provisions must necessarily stand in a just and proportionate relationship to the gravity of the offence and to the blameworthiness of the offender.  This principle can be derived from the basic structure of the constitution itself and is quite justifiably deduced from Article 21.  For an excessively heavy or gruesome punishment or minimum punishment, without giving the discretion to a judge to award a lesser sentence in appropriate cases, amounts to a disregard of the human personality and therefore infringes upon Article 21 as well as the internationally well-known principle of proportionality. The principle of equity too dictates that punishment must be oriented to the degree of blameworthiness, and the removal of judicial freedom to do so offends Article 14 as well.

VII.              Successive Law Commissions have advised both against a mandatory minimum and against removing the proviso, giving the judge discretion to award a term less than 7 years.  This is also in consonance with the practices in many other common law democracies, wherein mandatory minimum sentences are most often accompanied by the discretion to award a sub-minimum sentence.In this regard, the Verma Committee deliberations, do not contain any discussion at all on whether and why the proviso to Section 376(1) should be dropped.

VIII.            Indeed, a mandatory minimum sentence is regarded with severe disquiet by legal scholars.  The scheme of the IPC itself would show that except for full-fledged murder under Section 302 IPC and the actual act of waging war against the State, few other offences are punishable with a statutory minimum.  Even in the case of culpable homicide under Section 304 IPC, only an upper limit is prescribed.  So too for offences against the state such as Sections 121A and 124A IPC. Out of around 300 offences only about 25 have mandatory minimums sentences. A mandatory minimum extending to seven or more years is a recent (mainly post-2013) phenomenon, except for robbery with preparation or attempt to cause death or “dowry death’ under S.304 B IPC.  It is mainly after 2013, that a host of penalties carrying as high a minimum as seven years has been prescribed, even when there is no attendant violence or preparation to cause death. In such cases  as ‘robbery’ and “dowry death” the ambiguities that often surround the circumstances of ‘rape’ are absent. The provision of a mandatory minimum of 7 years for “rape” is not informed by a similar logic as S.304 B IPC  or robbery and is hence arbitrary, particularly because it has been widely recognized by scholars that there is a wide spectrum of such cases and many may dictate the awarding of much lower sentences than 7 years. Therefore, the removal of the proviso i.e. the removal of judicial discretion to award less than seven years in S.376 (1) is not only dangerous but also arbitrary.

IX.                A perusal of the cases in which resort has been had to the proviso to reduce the punishment, to less than the mandatory minimum even by appellate courts would argue for its abiding utility. The High Courts and the Supreme Court of India have, on several occasions, upheld such a discretion if exercised by the trial court, or corrected it if considered improper.

X.                  The number of rape complaints that turn out to be frivolous or motivated by spite as has been noted by many judges should indicate the dangers of widened definitions and abridged judicial discretion. It is submitted that there is compelling evidence as found in newspaper reports and reported judgments, that the law on rape, instead of advancing the rights and protections of Indian women has had several unintended consequences, and has in some instances proven to be grossly counter-productive in its operation.  Not only has the law been shown to be open to serious abuse, causing the ruin of innocent lives and causing families to be ripped asunder by false allegations, it has also had a deeply harmful effect on the professional advancement of women in Indian society. It is submitted that, there is a prevalent public perception that women employees are ‘more trouble than they are worth,’ with some employers specifically choosing not to employ women for fear of the risks of being implicated in false or exaggerated prosecutions. These circumstances have also brought disrepute to and eroded the legitimacy of those activists who have bravely championed the cause of women’s rights for the entire duration of their careers. The result of this is that the very notion of feminism, which should be an unquestioned part of any modern democracy, stands forever tainted in the minds of the Indian public.

Noted categories of frivolous complaints are as under:

Punishing a lover or live-in partner for refusing to get married: Sadly, the police have not hesitated in registering rape cases on the basis of bizarre complaints whereby the concerned woman has termed the entire period of a live-in-relationship or years of voluntary intimacy as a case of repeated rapes.  This when most such women don’t deny that the sexual/ live-in relationship was voluntary and not a forced affair.  The very premise of a live-in-relationship is that either of the two partners can walk out of the relationship if they feel it is no more viable.  To say that a man is legally obliged to marry a woman he has had sex with and failure to do so will mean a long prison term is to play with fire.

Punishing a man for refusing to give a job or promotion or refusal to enter into a relationship.  Such cases have unfortunately become very common. One of the most striking examples of such abuse of rape law was the case filed against famous film director, Madhur Bhandarkar by an aspiring actress, who alleged that Bhandarkar had “raped her 16 times between 1999 and 2004 on the pretext of casting her in his films.” The case was quashed by the Supreme Court nine years later on 5^th November 2012 noting that the lady did not want to pursue the case against Bhandarkar and the Mumbai police had earlier given a clean chit to the film director.  This is not to comment on the merits of the claim of the man concerned that he was an innocent victim of blackmail. The lady’s open admission that she repeatedly agreed to have sex with him as a quid-pro-quo for a film role is, however, illuminating.  The projection of such a person as a rape victim causing enormous harm to reputations all around and is simply not what is contemplated by the objectives of equality, women’s security or justice. This is not to deny the prevalence of sexual exploitation of women with the lure of attractive job offers, job promotions or modelling and acting assignments.  But such unsavoury deals should not come under the purview of anti-rape law.

Voluntary elopement by teenagers being registered as rape and abduction charges: As pointed in the data provided by Delhi Commission for Women, a large number of rape cases pertain to young women eloping with their lovers or get married to young men disapproved of by their parents on account of difference in caste, religion or social status. Even though the act of elopement is voluntary, the parents of young girls invariably file abduction and rape cases against the young man.  If the girl happens to be even a few weeks below 18, the charge will be “made out”. Countless young lives have been ruined on this account. In the recent past, the courts had taken note of the prevailing realities and have acquitted such accused or resorted to the discretion to award a sub-minimum sentence, but the power to do so has now been curtailed. Eventual release notwithstanding the ease with which young men can be incarcerated for engaging in consensual sexual relations  with women of like age is cause for worry.

The easy sustainability of a rape charge under the new law has turned the threat of a rape complaint into a pressure tactic. The Petitioner No.1 is aware that unscrupulous policemen are running well-organized extortion rackets using male and female sex workers for blackmailing respectable citizens with the threat of trumped up cases of rape or sexual assault. In cases where sex workers either trap an unwitting person or voluntarily engage in commercial sex with him, the charge can even be medically corroborated through DNA examination of the semen.  This is not to condone engaging in prostitution by men but merely to point out the unfairness of taking the word of the prosecutrix as gospel truth added to the provision that the past sexual history of a woman including the fact of her being a sex worker cannot be used as evidence against her. While there is no denying that even commercial sex providers have a right to say ‘No’ when they so desire, and have their ‘No’ taken seriously, it is nevertheless relevant to show the many dangers of rendering rape prosecutions easy in an atmosphere prone to abuse.

XI.                The result of these alterations in the law has been that a man may be subjected to the full brunt of the criminal law and the obvious, concomitant loss of reputation merely on account of allegations of rape or sexual assault, all because the “due process” requirement has been seriously undermined through the 2013 amendments in the rape law. Its harmful consequences became so widely apparent that the Delhi Commission for Women, whose official mandate is to offer support and help female victims of atrocities, was compelled to carry out a comprehensive review of rape cases in Delhi to assess the validity of the charge that the law was being widely misused.  The data collected by the DCW establishes that there is increasing trend of prosecutions based on false charges, with a large percentage actuated by revenge.

XII.              The abuse of anti-rape law becomes much easier because of the strict provision that the identity of the prosecutrix is to be kept anonymous while the identity and even photographs of the accused are freely broadcast on television and publicized on print media.  This in effect means that getting a man arrested and defamed on false charge of rape involves zero risk for unscrupulous women especially considering that in our legal system, even after falsity and malafide nature of charge is proven in court.  A false and malafide rape case ends up ruining not just the life of the concerned individual but also the entire family, especially if the person concerned has old parents or young children of impressionable age.  It can also ruin the marital life of the targeted man as well as his professional career.

XIII.            Indeed, all manner of sexual misconduct even those other than peno-vaginal intercourse, deserve due punishment through a due process trial under the criminal law. However, the classification of a range of disparate acts as ‘rape’ and the provision of identical punishments for widely varying acts is patently violative of the principle of proportionality in sentencing. One of the well known fundamental principles of even a purely retributive criminal jurisprudence is that punishment must bear a fair relationship with the nature of the offence committed. The failure to appropriately grade offences according to their severity, is arbitrary, and violates Article 14 of the Constitution of India. The clubbing together of accused persons who are accused of committing widely differing acts in terms of severity of consequences is patently irrational, counter-productive & lends itself to miscarriage of justice while undermining the integrity of our judicial system.

XIV.            Draconian provisions have failed to act as deterrent in criminal law generally and in rape law in particular. It has also been proven beyond doubt that the 2013 amendments have failed to act as a deterrent to sexual atrocities. There is no decline in either the number of rapes being committed every year nor in the brutality accompanying rapes. It is worthwhile to recall that far reaching amendments in rape law were enacted in1983 following the rape of young woman named Mathura who was raped in a police station in Maharashtra.  It led to a furore similar to Nirbhaya rape case. The 1983 amendments fixed a minimum jail term for rape to 7 years with 10 years for custodial rape. In case of death due to brutal rape, they provided for life imprisonment as well as death sentence. But none of these provisions proved effective in curbing sexual crimes against women which appear to have actually become more rampant and more gruesome. Leave alone curbing incidents of rape in secluded places or in privacy of homes, the law and order machinery has failed to curb even custodial rapes in thanas and hospitals. Similarly, after the 2013 amendments, cases of gruesome forms of rape, including more and more child rapes, no less brutal than the Nirbhaya case are being reported on a daily basis. Gang rapes have also become alarmingly frequent. What is worse, rape is being treated as a youthful sport by lumpenized youth, many of who proudly post video recordings of the acts of gang or individual rape on social media. This clearly shows that instead of growing fear of the existing stringent anti rape law, people are cocking a snook at the law enforcement agencies.

XV.              In recent years, it has become common practice for rapists to disfigure the women and tear her body into shreds or burn her to death so that the victim does not survive to tell the gruesome tale. Newspaper reports indicate that cases of rape & disfigurement followed by murder have become more common after 2013.  This is because of the common perception that one can get away with rape, murder and heinous crimes if one can buy the complicity of the police. The recently released movie Kaabil is latest in the long list of films to provide a nightmarish but true to life account of how police are routinely complicit in covering up genuine cases of rape, while those raising their voice against such violence and seeking justice end up brutalized. The popular imagination has correctly identified the system as failing justice, and this cannot be corrected by making draconian laws, which will only serve to aid injustice, by concentrating power in the hands of an unaccountable police force.

XVI.            The Petitioner No. 1 has met with and made recommendations to three successive Law Ministers as well as the Law Commission seeking a review of the law. There is a hesitation to confront the issue because it will be projected as anti- women. There has been no response to her requests

PRAYER

It is therefore prayed that this Hon’ble Court may be pleased to:-

1. Call for records from the National Crimes Records Bureau, the Central Jail Tihar and the Respondent Government to assess the profiling features of rape prosecutions post the 2013 Amendments.
2. Strike down the Criminal Law amendment Act 2013 as unconstitutional and ultra-vires Articles 21 and 14 in so far as the amendments to S.375, S.376 (1) and S. 376(2) go.
3. Declare that the Second Proviso to S.376 (1) as it stood shall continue to be read as part of the IPC.
4. Direct a reconsideration of the cases in which a sentence of imprisonment has been passed under S.376(1) after the amendments made by the Criminal Law Amendment Act came into force.
5. Pass any other order that may be thought fit.

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[1] http://www.dnaindia.com/india/report-53-rape-cases-filed-between-april-2013-and-july-2013-false-delhi-commission-of-women-2023334

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