Under an order dated August 9, 1999 made in Writ Petition (Crl) No.33 of 1997, the Supreme Court of India requested the Law Commission "to examine the issues raised by the petitioners and examine the feasibility of making recommendations for amendment of the Indian Penal Code or deal with the same in any other manner so as to plug the loopholes."
The Supreme Court of India was approached for-
a) issuance of a writ in the nature of a declaration or any other appropriate writ or direction declaring inter alia that `sexual intercourse' as contained in section 375 of the Indian Penal Code shall include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration and
(b) to issue a consequential writ, order or direction to the respondents in the Writ Petition and to their servants and agents to register all such cases found to be true on investigation.
Though the Law Commission was not made a party to the Writ Petition. The Supreme Court however directed the Law Commission, by its Order dated 13th January, 1998, to indicate its response with respect to the issues raised in the said Writ Petition. The Law Commission in its affidavit dated 25.3.1998 brought to the notice of the Hon'ble Court that the 156th Report of the Law Commission on the Indian Penal Code had dealt, inter alia, with the issues raised in the Writ Petition, but since the said Report was not yet placed on the table of the Houses of Parliament, the matter may be adjourned by a few months. The matter was adjourned by three months. Meanwhile, the aforesaid Report of the Law Commission was placed on the table of both the Houses of Parliament. Thereafter, the Law Commission filed its affidavit dated 28.7.98 setting out in extenso the portions of the said Report dealing with the issues in question. Suffice it to say that by and large the then Law Commission (14th Law Commission) did not agree with the viewpoint of the writ petitioners except in certain minor respects which would be indicated at the appropriate stage later. It is after considering the said affidavit and the affidavit filed by the Ministry of Law, Justice and Company Affairs, that the Hon'ble Court passed the aforesaid order dated 9th August, 1999.
The order of the Hon'ble Court records the statement of the learned counsel for the writ petitioners that the contents of the 156th Report of the Law Commission were known to the petitioners, but since according to them the Report did not deal with the precise issues raised in the writ petition, a request was made by the counsel for the petitioner to seek further consideration of the issues by the Law Commission and the Government of India. The Court was inclined to agree with the said submissions. The Court also noted that the 156th Report was submitted by the Law Commission prior to these issues being referred to the Commission and further that the said Report of the Law Commission did not in terms deal with various aspects of the issues raised in the Writ Petition. The order further recorded that at the suggestion of the Hon'ble Court, the petitioner did draw up a note containing the precise issues involved in the Writ Petition as well as other connected issues. After perusing the same, the Court asked the Law Commission to examine the said issues afresh. A copy of the `precise issues' with the appendix and affidavit were sent to the Secretary, Law Commission with a request to place the same before the Chairman of the Law Commission for consideration. It was also observed that the Law Commission may, if so advised, call upon the petitioner to assist it in such manner as the Commission thought appropriate. The issues, the Court observed, "need a thorough examination". The matter was accordingly adjourned for three months within which period the Law Commission was expected to submit its response to the Hon'ble Court.
The order of the Hon'ble Court was received by the Secretary to the Law Commission on 19.8.99 and placed before the Chairman.
"Precise issues".- The `precise issues' submitted by the petitioner before the Court and which have been sent to the Law Commission for consideration are divided into three parts (Annexure-A).
Part I carries the title "Precise issues submitted for consideration of the Law Commission and the Government of India".
Part II carries the heading "Existing inadequacies" and
Part III is titled "Suggestions for amendment to the Indian Penal Code". We shall set out in brief the substance of the submissions made in all the three parts.
Part I: Precise issues submitted for consideration of the Law Commission and the Government of India.-
(1) Having regard to the widespread prevalence of child sexual abuse, would it not be appropriate to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration within the meaning of the expression "penetration" in the Explanation to section 375 of the IPC. The restrictive interpretation of `penetration' in the Explanation to section 375 defeats the very purpose and object underlying section 376(2)(f);
(2) Is it not wrong to classify the penetrative abuse of a child below the age of 12 as unnatural offence under section 377 IPC or as outraging the modesty of a woman under section 354, depending upon the `type' of penetration ignoring the `impact' on such child.
(3) Is it not wrong to continue to treat non-consensual penetration upon such a child as offence under section 377 IPC on par with certain forms of consensual penetration (e.g. consensual homosexual sex) where consenting party can be held liable as an abettor or otherwise.
`Appendix A' appended to Part I contains three notes, which we shall refer to in seriatum:
Note 1: The Explanation to sections 375 and 376 says that "penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape". By the Criminal Law (Amendment) Act 1983, raping of a woman under twelve years of age was made punishable with rigorous imprisonment for a term which shall not be less than ten years but which may be for life in addition to fine. In such a situation, it would be appropriate to broaden the meaning of penetration to include not only vaginal penetration but also anal and oral penetration as well as penetration by any part of the body or by any object.
Note 2: In a vast majority of child sexual abuse cases the penetration is other than penile-vaginal. Such penetration causes lasting psychic damage to the child. In such a situation, a restrictive meaning attached to penetration is likely to prove inadequate.
Note 3(a): The 156th Report of the Law Commission has recommended that penile/oral penetration and penile/anal penetration be covered by section 377 IPC and that finger penetration and object penetration into vagina or anus can be adequately covered under section 354 with a more severe punishment. This recommendation requires reconsideration. Such a restrictive view fails to take into consideration several forms of child abuse and the further fact that very often the sexual abuse of children is by persons known to them. As a matter of fact, rape is really intended to humiliate, violate or degrade a woman sexually. It adversely affects the sexual integrity and autonomy of women and children. The aforesaid recommendation of the Law Commission therefore defeats the very object underlying the Criminal Law (Amendment) Act, 1983 which inserted sub-section (2) and in particular clause (f) thereof in section 376.
The above recommendation also does not take into account the fact that a child of tender years can not discern the degree of difference in terms of which orifice of hers is penetrated. Certain instances are then set out to illustrate the aforesaid point.
Note 3(b): Under this note, the petitioner has sought to argue in the light of the instances mentioned under Note 3(a) that the 156th Report of the Law Commission requires reconsideration.
Part II: Existing Inadequacies.- Various instances set out in Appendix-B to Annexure-A (a copy of the submissions of Sakshi including Appendix-B is enclosed herewith) to this part, the petitioner argues, would not
amount to rape and perhaps not even to natural offence under section 377 or to outraging the modesty of a woman under section 354, in view of the existing law. They might just be a limited form of assault or criminal force, if at all, though all the said instances are of a grave nature and extremely disturbing. It is therefore necessary that there should be a rethinking on this issue and the offence of `sexual assault' should be more precisely defined and its parameters indicated.
Part III: Suggestions for amendment to Indian Penal Code.- This part sets out the several amendments proposed by the petitioner. Suffice it to say that they seek to substitute the definition of `rape' with the definition of `sexual assault' and make it gender neutral. The object is to widen the scope of the offence. The expression `consent' is also sought to be defined. A new section, section 375A with the heading `Aggravated sexual assault' is sought to be created. This new offence seeks to synthesise the offences now categorised under sub-section (2) of section 376 as well as sections 376B to 376D.
A copy of the draft of comments prepared by the Law Commission was thereafter forwarded to Sakshi inviting their views thereon and for suggesting changes of a procedural nature, whether in the Criminal Procedure Code or the Evidence Act. Later on, three other organisations, namely, Interventions for Support, Healing and Awareness – IFSHA, All India Democratic Women’s Association – AIDWA and the National Commission for Women – NCW also presented their views on the proposed suggestions.
After detailed discussions with these organisations, the Commission has recommended changes for widening the scope of the offence in section 375 and to make it gender neutral. Various other changes have been recommended in sections 376, 376A to 376D. The commission have also recommended insertion of a new section 376F dealing with unlawful sexual contact, deletion of section 377 of the IPC and enhancement of punishment in section 509 of the IPC. In order to plug the loopholes in procedural provisions, the commission have also recommended various changes in the Code of Criminal Procedure, 1973 and in the Evidence Act, 1872.
The Hon’ble Supreme Court forwarded vide its order dated 18.2.2000 the comments of the petitioner on the Response and Recommendations of the Law Commission of India for consideration. The Commission accordingly considered those comments and submitted its further response and recommendations dated 14.3.2000.
The Report focuses on the need to review the rape laws in the light of increased incidents of custodial rape and crime of sexual abuse against youngsters. The crime of sexual assault on a child causes lasting psychic damage to the child and as such, it is essential to prevent sexual abuse of children through stringent provisions. The UN Conventions and various constitutional provisions also underline the need for protecting the child from all forms of sexual exploitation and sexual abuse. This above Report aims at the attainment of these objectives.
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