April 21st, 2012
Email this page


Criminal Law

Oishik Sircar

India is planning to reform ‘rape’, yet again. On a wave of moral panic after the child molestation case against a senior police officer in Haryana resurfaced last year the Ministry of Home Affairs set up a High Powered Committee which has drafted the Criminal Law (Amendment) Bill 2010 (CLA) to amend the Indian Penal Code of 1860 (IPC) – the country’s least amended law. The CLA is expected to respond to the recommendations of the 172nd report of the Law Commission of India which have been pending since 2004. This need for reform which was inaugurated in the early eighties by the demands of the women’s movement in response to the Mathura and Rameeza Bee judgments is still on, and it doesn’t seem likely that it will end even if the CLA amendments are enacted.

Over the past several years ‘rape’ as a form of sexual violence and subjugation has undergone both cultural and political transformations in the ways in which it is used, understood and performed. From being an individual act of bodily violence by men on women to being used to ‘dishonour’ minority communities in times of religious or caste conflict like in Gujarat or Khairlanji, to being used as a weapon by the state armed forces to silence dissent as in the case of Thangjam Manorama in Manipur, or the Shopian rapes in Kashmir. Instances of ‘rape’ against gay men and Hijras are also expanding the boundaries of what was traditionally understood as statutory rape.

Child abuseThe law, unfortunately, has remained woefully entrenched in colonial sexual morality that has grown more conservative with the Hindu Right’s impositions of nationalist codes of modesty and honour on women’s bodies. What has made ‘rape’ law reform both imperative and contentious now is that the stakeholders are not singularly women any more. Along with women there are the sexually marginalized (gay men, Hijras, Kothis) and children (vulnerable to sexual abuse) who are calculated targets of ‘rape’. Interestingly, the demands by each of the stakeholder groups are precariously in contestation against each other. In the wake of the Delhi High Court judgment in July 2009 decriminalizing ‘unnatural sex’, rights activists feel that the state and judiciary are in a mood to make progressive moves to reform ‘rape’ laws – the consequences, however, might not be that encouraging.

Continuum of Concerns

The concerns that mobilized the women’s movement in India in the aftermath of the 1979 Supreme Court (SC) judgment in the Mathura rape case were primarily built around three issues – consent, custody and caste. The SC overturned the High Court judgment and acquitted the accused on the grounds that because Mathura previously eloped with her boyfriend it was a marker of her ‘loose’ moral character and that she was ‘habituated to sexual intercourse’; no injury marks on the body of the police constables who raped her signified that she offered no resistance and thus consented to sex. Her caste made her doubly vulnerable to the vagaries of the judiciary that clearly deprioritized the intensity of the case by acquitting the accused.

Academics, women’s and human rights groups from across the country heavily criticized the judgment and mounted a campaign that resulted in the Criminal Law (Amendment) Act of 1983 recognizing ‘custodial rape’ as an aggravated form of sexual violence where the burden of proof shifted to the accused and no corroboration of the victim’s statement was required. The quantum of punishment was also changed and for the first time in the history of the IPC statutory rape carried a minimum punishment of 7 years. These were indeed important victories for the women’s movement, but the same concerns about rape continued to resurface with every other case despite the amendments in the IPC.

In the 1992 case of Bhanwari Devi’s gang rape in Rajasthan (portrayed memorably on celluloid by Nandita Das in the film Bawandar), one of the lower courts acquitted the accused because it felt that upper caste Gujjar men could never rape a low caste woman. In the 2005 Marine Drive rape case in Mumbai a police constable raped a woman inside a police chowki. Although the constable was convicted, public consciousness was deeply influenced by comments about the victim’s moral character that questioned why she was alone on Marine drive after dark, in effect discrediting her non-consent. For instance, the Shiv Sena mouthpiece Saamna suggested that it is women’s responsibility to dress and carry themselves properly to ensure that men don’t get turned on.

Inadequacies of Penetration

Demands for reform of rape laws have also been extended on the ground that ‘rape’ – both its cultural and legal meanings – doesn’t adequately capture the range and gravity of penetrative sexual violence against women. Penetration of the vagina by the penis is a necessary prerequisite for the offence of statutory rape to be committed under Sec. 375. Thus, forcible penetration of any object/ organ other than the penis into any other orifice, apart from the vagina, is not rape according to the IPC.

The location of ‘rape’ is inside the woman’s vagina, and any form of force without consent outside of the vagina would amount to an archaic crime called ‘outraging of modesty of a woman’ (Sec. 354), provided it is established that she can be said to be possessing modesty. Non penetrative sexual abuse of girl children was to be covered by this section. Cases have deliberated on whether minor girl children could be said to possess ‘modesty’, which could be ‘outraged’. Forced penetration of any orifice apart from the vagina by any object including the penis would be covered by Sec. 377. The question of loss of virginity is built into the way statutory rape is defined. Privileging the penis over any other object and the vagina over any other orifice is closely connected to the primacy given to preserving virginity rather than protecting the bodily integrity of the woman.

Sec. 375 also offers an exception which says: “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape”, thus granting state legitimacy to marital rape. The limits of understanding ‘rape’ only as forced peno-vaginal penetration and the exemption of marital rape from the ambit of statutory rape has to do with the cultural meaning that the term ‘rape’ carries. One of the demands of the women’s movement has been to replace ‘rape’ with ‘sexual assault’. The argument being that rape outside its sexual connotation means plunder of property and within the practices of patriarchy a wife is considered to be the property of her husband. Since it can never be imagined that a person will ever plunder his own property, thus a husband could also never be imagined to rape his wife.

Road to Reform

The first legal attempt at demanding the expansion of the definition of rape and replacing it with sexual assault was made in 1997 in the Supreme Court case of Sakshi v Union of India. It was also the first time that the inadequacies of the IPC provisions to address child sexual abuse (CSA) were brought to public light. Sakshi, a women’s resource centre working with victims of sexual abuse, filed the Public Interest Litigation (PIL) after the Delhi High Court declared that the case of an eight-year-old child, penetrated in three orifices by her father, could not be considered either rape or an ‘unnatural offence’ (Sec. 377). The PIL questioned the legal procedures during trial and urged the apex court to expand the definition of sexual intercourse to mean all kinds of sexual penetration into any type of orifice of the body, not just peno-vaginal penetration, so that sexual abuse other than what is defined as rape could also be included.

The 2004 judgment in this case, instead of broadening the definition of ‘rape’, only focused on reducing the trauma of the victim by directing that she cannot be forced to answer insensitive and crude questions during court trials, and that a screen may be used so that the victim did not have to undergo the trauma of seeing the perpetrator. Interestingly, in this judgment the court admitted the wide prevalence of CSA, yet it failed to clearly define sexual abuse and stated: “An exercise to alter the definition of rape… by a process of judicial interpretation is bound to result in a good deal of chaos and confusion and will not be in the interest of society at large…”

Pursuant to the order passed by the Supreme Court in the Sakshi case, the 172nd report of the Law Commission of India recommended amendments to the IPC: that the offence of ‘rape’ be substituted by ‘sexual assault’, which would make it gender-neutral and bring into its fold a range of sexual offences and not merely forced peno-vaginal penetration. The report also recommended the repeal of Sec. 377. However, the report rejected any proposal to repeal the marital rape exception on the ground that it would amount to interference into the familial relation of husband and wife!

The only positive outcome of the demands for reforms came in 2003 when Sec. 155 (4) of the Evidence Act was repealed. This section had allowed the defence in a rape trial to question the past sexual character of the victim to discredit her testimony – exactly the way in which acquittal in the Mathura case happened.

The Queer Turn

The issue of rape and sexual assault, especially CSA was again raised in the legal arena when, in 2001, Naz Foundation, a Delhi-based organisation working on issues of HIV/AIDS, filed a petition in the Delhi High Court asking for the ‘reading down’ of Sec. 377. The petition demanded that adult, consensual and private sex be taken out of the purview of this section. A demand for reading down was made instead of a complete repeal of the section by the petitioners, keeping in mind the lacunae in the IPC regarding CSA. However, in response to the petition, the government sought the dismissal of the petition on exactly the same grounds, stating that it complements the lacunae in rape laws for prosecuting child sexual offenders. The government was actually hiding behind the fig leaf of Section 377 to absolve itself of the responsibility of passing a separate law on CSA, and perpetuating homophobia in the process. Fortunately, in a judgment in July 2009 the Delhi High Court read down Sec. 377. Yet, the concern with whether 18 should be the age of consent and if private space should be privileged as the only legitimate location for having consensual sex remain contentiously unresolved issues.

The Trouble with Reform

Thus we have the CLA [Criminal Law (Rape) (Amendment) Act] today, coming over half a decade after the Sakshi judgment and the LCI report to promise reforms to rape laws that have been in the waiting since Mathura’s case. In the CLA ‘rape’ has been redefined as ‘sexual assault’ and includes penetration of any orifice on a woman’s body by any part of the man’s body or any other object. Insertion of any object (not being the penis) forcibly into the mouth of a woman also amounts to sexual assault equally comparable to penetration of the vagina or anus. Consent remains the guiding factor to decide what qualifies as sexual assault. The age of consent is fixed at 18 years, thus rendering consent irrelevant for people engaging in sex below the age of majority.

The marital rape exception continues to exist, only with a minor change: here the age has shifted from 15 years to 18 years. The consequence: it holds consent of the woman to be irrelevant if a husband rapes his wife who is above the age of 18! A new exception added to the section says: “when penetration is carried out for proper hygienic or medical purposes” it is not sexual assault – thus it allows for gross misuse as defence for medical personnel who can be perpetrators of CSA. The CLA is conspicuously silent on aggravated forms of sexual assault in times of conflict. Similarly, the CLA says nothing about the repeal of Sec. 377 as was recommended by the LCI.

The CLA has a separate section (376C) on “sexual abuse of minors”. Unlike the section on sexual assault this section is gender neutral and lists a range of penetrations into any of the child’s bodily orifices by a man or a woman to constitute CSA. However, this section deems consent completely irrelevant. The problem with such a provision is that it could actually lead to criminalising consensual sexual acts between young people: if a 16-year-old girl has consensual sex with another boy of the same age, the boy is considered to have committed CSA. There could also be a situation where both can be perpetrators and victims at the same time. Children’s experiences of mutual sexual exploration or experimentation can potentially turn criminal under this provision. The IPC stipulates the age of criminal responsibility at 7 years. It’s paradoxical that by virtue of this law minors are capable of scheming and executing a crime at 7 years, but not capable of consenting to sex with someone of the same age till they are 18! The importance of protecting children from sexual abuse cannot be denied, however to criminalize child sexuality is a warped expression of conservative morality.

Unfortunately, CSA has also been understood only as penetrative sex in this section. The fact that CSA can take forms where contact or touch is not required (exposing or made to expose genitalia, showing pornography etc.) or where there is no penetration falls outside of the ambit of this section. Non-penetrative and non-touch CSA gets covered under Sections 354 and 509 of the IPC (outraging the modesty of a woman, which includes girl child), though these sections remain woefully steeped in the discourse of honour. Ideally, it should be included in a graded fashion under the sexual assault section. CSA in the CLA also does not include incest and the processes of grooming that precede sexual contact in any case of CSA. Though the CLA gives considerable attention to punitive measures by increasing punishments and creating new crimes, a glaring omission is the absence of any provision for children and women with disabilities whose vulnerability to sexual abuse may be higher.

Clearly then the reforms to rape law suggested by the CLA does great disservice to all the three stakeholder groups and the years of struggle for rape law reform. For women, it reinforces the very codes of sexual morality the women’s movement has challenged. For children, it provides tokenistic measures which do not do away with the pressing need or a separate law on CSA. For the sexually marginalized, there is no recognition that they can be victims of sexual assault. As many feminist lawyers had cautioned during the earlier struggles reforming rape law: law reform ultimately strengthens the arms of state to regulate sexuality, than empower women, or children, or the sexually marginalized.

(Oishik Sircar is Assistant Professor and Assistant Director of the Centre for Penology, Criminal Justice and Police Studies at the Jindal Global Law School in Sonipat, Haryana)

Courtsey: Breaking The Shackles


Press ctrl+g to toggle between English and Malayalam.