After the Nirbhaya Delhi Gang Rape case, “The Criminal Law Amendment Act, 2013” came in to force w.e.f 3rd of Feb, 2013. Now this case was recorded as “Rarest of Rare case” in the history of Indian Judiciary case laws. Our parliament was forced by the street protesters to take immediate initiatives towards making the drastic changes in our criminal laws. By this amendment act, our legislators introduced some new sections and make some amendments in Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Protection of children from sexual offences act. New Sections 166A, 166B, 326A, 326B, 354A, 354B, 354C, 354D are inserted in Indian Penal Code (45 of 1860), Sections 198B, 357B, 357C are inserted in Code of Criminal Procedure (1973), Section 53A inserted in Indian Evidence Act (1872), whereas several amendments to some sections in these acts were also made by this amendment act. Section 375, 376, 376 A, 376 B, 376 C, 376 D substituted with new one and a new section 376 E was inserted through the same amendment act. Section 375 of IPC (which provides the definition of Rape) goes with drastic change through this amendment act. By this amendment, the definition of Rape was totally changed and its meaning was also changed. Our Legislators put excessive efforts to make amendment in section 375 and after reading the amended definition of rape given under section 375 of IPC, one is compelled to think that what has happened to the art of drafting and where it has gone? Are we so incapable to even draft a law, which make some sense? Interpretation of Statute by the courts is also a great art, which removes the ambiguity in the wording of the statutes giving different meaning in changing situations. But it does not mean that we leave a Patent ambiguity in the statutes and confer a duty upon the Judges & courts to interpret it and give proper meaning to the statute to show the proper object of the legislator. The patent ambiguity should always be removed while making the statute only and it should be the exceptional case, where a latent ambiguity shows from the wording of the statute in the changing circumstances. In that case, it should be the duty of the court to make every endeavour to interpret the statute under the object of the legislator and to make the statute best fit in that every changing situation.
Before passing the act, the definition of Rape is changed and the name of offence was made “Sexual Assault” which replaces the word “Rape” and it is common for man to man, man to woman, woman to woman and woman to man but when the ordinance converts in to act 2013, the word Rape re- changed with the word “sexual assault” & the offence remains punishable for man towards woman only.
This new definition of Rape is criticized by me at some words used by the Legislators unnecessarily.
1. In the new definition, the legislators uses the words, “Vagina, Mouth, Urethra or Anus” in clause (a) and “Vagina, Urethra or Anus” for the clause (b), (c), (d) of section – 375. Before interpreting this definition, we should firstly come to know the proper meaning of these words specifically used by the legislator in the statute. As per Oxford dictionary, Wikipedia and other national & international dictionaries, Urethra is a layer of skin inside the Vagina, means Urethra is covered by the outer layer of Vagina. According to my view, there is no need to use the word “Urethra” specifically. Vagina covers this part in itself as no penetration is possible physically without penetrating anything in to Vagina but to Urethra only (Urethra always comes after the Vagina).
2. Secondly, under section 375 (c), the Legislator criminalize the art of manipulation under the definition of Rape. In this case, now it becomes very difficult to distinguish between “Rape” and “Attempt to Rape” as attempt to rape is already a complete offence in itself and it should be punishable only under section 511 of IPC r/w section 376 of same code and not under the category of Rape. The reason is that, on the one hand we are trying to make the Rape Law as a hard law and on the other hand we are making the no difference between the main offence and attempt to that offence. Even in IPC, there is lesser punishment for attempt to murder as comparable to the main offence of murder. Another reason is that, by bringing the offence of “manipulation only” under the category of Rape, it broadened the ambit of act of Rape unnecessarily on the one hand and provides hard punishment for the less gravity offence on the other hand.
3. Thirdly, the Legislator uses the word, “any part of the body of such women”. It is quite funny to imagine that is there any other part left apart from Vagina, Urethra, Mouth or Anus where the penetration can be possibly made for the sexual purpose. What is the intention of Legislator by using these words here, is the Legislator want to say ear, nose or any other part? It is a bad drafting. Here it seems that Legislator had put excessive and unnecessary efforts to just make the offence of Rape harder. And these excessive efforts made the statute patent ambiguous.
4. Fourthly, the Legislator uses the words, “or any other person” in each four clauses of section 375. Earlier Gang Rape is defined under clause (g) of section 375. But after the amendment of 2013, it is separately defined under section 375 D. The requirement of minimum persons under section 375 D is two, for converting the offence of Rape in to Gang Rape and there is no need of sexual penetration by the both accused but only assistance of one person to the main culprit is enough to make them offender under this section. By using the words “any other person” the Legislator himself makes the both definitions of section 375 and section 375 D as overlapping upon each other. It is a big defect in the definition of Rape given under section 375 as it creates ambiguity in the statute that if one person assists to the offender to commit the offence of Rape, then whether they will be convicted under section 375 or under section 375 D (i.e. which provides punishment for gang rape).
As per above analysis of the amended definition of Rape given under section 375, it is evident clear that how efficient our Legislator are. It must be carefully examined before drafting any statute as the impact of bad drafting may results in to grave consequences. I suggest that there is a need of more involvement of Common man specially Law Graduates either practicing or Teaching or Research fellows in the law making process and they should come forward to give their suggestions. Legislators should make this involvement easy and friendly and must be in a transparent manner which serves many purposes with single act i.e. involvement of common man in law making process, improvement of efficiency, uplift of backward society, improvement in confidence in common man & improvement in education etc. by just giving them suggestive powers only.
This new definition of Rape is badly drafted and it looks by the above analysis that Legislator has committed Rape with section 375 and unfortunately there is no punishment for this offence in Indian Laws but some innocents or less offenders may amounts to harder punishment due to this ambiguity.