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Report No. 172

Review of Rape Laws

Chapter 1

Introductory

1.1. 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."

1.1.1. The petitioner `Sakshi', an organisation interested in the issues concerning women, had approached the Supreme Court of India with the aforesaid Writ Petition praying 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.

1.1.2. 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.

1.1.3. 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.

1.1.4. 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.



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