‘Child abuse casts a shadow a length of a lifetime.’
Even at the age of thirty, Suhana Ali is overcome by fear each time she recalls her horrifying encounters with sexual abuse. At the impressionable age of twelve, she was coerced to satisfy her father’s paedophilic tendencies by acts of fellation. Now, all that she can reminisce of her childhood is guilt and shame!
Suhana’s only ray of hope is our criminal justice system. But the lady of justice, as always, seems blind to her misery… India’s archaic laws on sexual offences are inapt to remedy her condition and restore her dignity. In fact, they only heighten the ignominy of the 53% Indian children who have been victims of sexual abuse. 
I. DEFECTS IN THE INDIAN PENAL CODE
Let us dwell into the lacunae existent in the Indian Penal Code, to appreciate the reach and sweep of the aforementioned statement:
- The offence of ‘rape’ is covered under Section 375 of the IPC. Per the Explanation to the said section, penile penetration alone will ‘constitute the sexual intercourse necessary to the offence of rape’. Hence, offences like fellatio or cunnilingus (i.e. oral sex) and penetration by any other object or part of the body (like finger or toe), fall beyond the realm of Section 375. Consequently, sexual abuse of a minor in the form of unlawful sexual contact or by exhibiting pornographic material is outside the ambit of Section 375.
- Under the present scheme of the IPC, the penetrative abuse of a child below the age of 12 is classified either as unnatural offence under Section 377 or as outraging the modesty of a woman under Section 354; depending upon the ‘type’ of penetration. The said jurisprudence is based on a faulty premise, for the following reasons:-
Firstly, a vulnerable child cannot discern the degree of difference in terms of which her orifice is penetrated. So determining if the offence falls under Section 377 or Section 354 is practically impossible.
Moreover, the physical and psychological impact of the sexual offence on the child should be the basis for making out an offence under the IPC, rather than scrutinizing the ‘type’ of penetration.
And finally, is it not wrong to treat non- consensual penetration upon a minor as offence under Section 377 on par with certain forms of consensual penetration (e.g. consensual homosexual sex) where a consenting party can be held liable as an abettor or otherwise?
Besides child abuse, the inherent defects in the IPC culminate in a plethora of other contentions as well. Let us consider some of them.
- MARITAL RAPE
- GENDER NEUTRALITY
Per the Exception to Section 375 any ‘sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape’. The flawed rationale behind this provision can be elucidated by the following proposition. If a man harasses his wife physically, emotionally or economically, he would be arraigned under the specific provisions of the Domestic Violence Act, 2005. But forced sexual intercourse by a husband with his wife, goes unquestioned in the eyes of law. The dismal effects of marital rape range from injuries to private organs and bladder infections to miscarriages and infertility. Hence, why should laws bestow an absolute immunity upon the husband solely on the basis of the marital relationship?
The Indian position on spousal rape should be in line with the opinion of the House of Lords in R v. R [(1991) 4 ALL ER 481 (HL)], which declared that a husband could be charged as principle offender in the rape of his wife.
Section 375 has been drafted on the premise that only females can be victims of rape. But it fails to take cognizance of the multitude instances when men have been subjected to forced sexual assault. Case in point is the use of young boys for acts of sexual perversion in tourist centers like Goa. Moreover, the law as it stands is handicapped to address the issue of conjugal sex against the consent of a husband. Hence, the need of the hour is to accommodate gender neutrality within the purview of our rape laws. After all, isn’t it presumptuous to assume that only women and not men can be victims of sexual assault at workplace?
II. APPROACH OF THE INDIAN JUDICIARY REGARDING SEXUAL OFFENCES
The below-mentioned cases manifest the unfounded reasoning of the Indian courts when dealing with matters of rape and the allied sexual offences:
- In the Mathura Rape case [(1978) CrLJ 1864 SC] the Supreme Court acquitted the two policemen who raped a sixteen year old girl on the grounds that the victim had no visible marks of injury and that she did not raise an alarm.
- In Mohd. Habib v. State [(1989) CrLJ 137 Delhi] the Delhi High Court acquitted a man who raped a seven year old girl, asserting that there were no marks of injury on his penis. The Court refused to take cognizance of the bite marks on the victim’s person and the fact that she suffered a ruptured hymen on account of the sexual assault.
One may argue that the Indian judiciary has lately adopted a progressive approach when dealing with cases of rape, as elucidated in State of Punjab v. Gurmit Singh [(1996) 2 SCC 57], State of Maharashtra v. Madhukar M. Mardikar [(1991) 1 SCC 57] and Railway Board v. Chandrima Das [AIR 2000 SC 1998] . Then what is the pressing need to amend Section 375 of the IPC? It is imperative to modify such obsolete penal provisions in the wake of the newly emergent sexual offences, which are concomitant with a changing social order. Moreover, such outdated provisions stand in antithesis to Article 21 of the Indian Constitution and the principles underlying the UDHR.
III. RECOMMENDATIONS TO RECTIFY THE LAWS GOVERNING SEXUAL ASSAULT IN INDIA
Social organizations like Sakshi, IFSHA, AIDWA and the National Commission for Women had filed a writ petition before the Supreme Court of India and suggested a string of amendments to the laws governing sexual offences in India. They were duly incorporated in the 172nd Report of the Law Commission of India and the Criminal Law (Amendment) Bill, 2010. Let us discuss some such amendments:
- The offence of ‘rape’ under Section 375 should be replaced by ‘sexual assault’. This would widen the mandate of Section 375, whose present insular application is only limited to penile penetration. Hence, other forms of penetration and unlawful sexual contact that are erroneously classified as unnatural sex under Section 377, would now amount to ‘sexual assault’.
- A proposal for the introduction of Section 376 C (1) is floored. This provision seeks to penalize ‘sexual abuse of a minor’; which is in consonance with Article 34 of the Convention on Rights of the Child and Article 39(f) of the Constitution of India.
- The legal age for consensual sex should be raised from 16 to 18 years under Section 375.
- Introduction of Section 376 (2) (e), that accords a higher punishment to sexual offenders who hold a ‘position of trust and authority’ in the victim’s life. This is in view of the extremely odious conduct of the father of a minor girl in Sudesh Jakhoo v. K.C.J. [1996 (3) AD Del 653].
A year has passed since the Criminal Law (Amendment) Bill, 2010 was drafted; but it is still to see the light of the day. In fact, I can trust our lax parliamentarians to place it in the back burner, until a political game point spurs them on. And even post- enactment, I can trust our corrupt law enforcement machinery, to err in its implementation.
After all, we are products of a system where the parliament makes laws that get embroiled in a vicious circle of corruption and bureaucratic slackness… a system where criminals like SPS Rathore can go scot free after molesting a 14 year old girl; simply because no rape charges can be framed against him under the archaic provisions of the IPC… a system where the innocence of Phoolan Devi is strangulated by a series of sexual assaults and consequently a ‘Bandit Queen’ is born…
We need to timely amend the draconian provisions on sexual assault. Otherwise many more Ruchika Gilhotras will commit suicide, after falling prey to an unrelenting system!
 Report by Ministry of Women and Child Development, ‘Study on Child Abuse: India 2007’.
B.A. LL.B (Hons.)- 3rd Year,
Dr. Ram Manohar Lohiya National Law University, Lucknow.
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]