Report No. 172
1.2. "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.
1.2.1. 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.
1.2.2. `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.