Guest Post: The Conundrum of Women being Prosecuted for Gangrape

(This is a guest post by Rushil Batra)

On 13.02.2023, a single judge bench of the Allahabad HC gave a rather interesting judgment in the case of Suneeta Pandey v State of UP wherein it held that women can be prosecuted for the offence of gang rape under Section 376D of the IPC. This conclusion is interesting since generally rape as an offence is seen as capable of being committed only by men. This judgment again raises the question of whether rape provisions – as defined under the IPC - are offences that can be committed by women as well (if we take that binary for the purpose of this essay). 

In this essay, I try and do two things. I first, highlight the context in which the 2013 Amendment to rape laws took place and the cause for confusion and argue that the IPC is ambiguous and leaves room for both interpretations. Second, I break down the reasoning employed in Suneeta Pandey and argue that applying purposive interpretation, the word ‘persons’ under Section 376D (gangrape) should be read narrowly. 

Verma Committee, Criminal Law Amendments and a Textual Analysis of Rape Laws

Before 2013, there was a very restrictive definition of rape wherein Section 375 defined rape as an offence being committed by a ‘man’ on a ‘woman’. After the brutal gang rape and homicide of Nirbhaya, the government set up the Verma Committee to suggest an overhaul of criminal laws in the country – including rape laws and sexual offences. The Committee submitted its report in a month. However, when the Verma Committee did give its recommendations, the government – for reasons unknown – chose to ignore some of them selectively. Amongst multiple of these ignored recommendations were the suggestions to transform rape laws. But the government did overhaul rape laws – but not according to the Verma Committee recommendations. One of these recommendations was to that the perpetrator should be identified as a ‘man’ i.e., the perpetrator specific but the victim be identified as a ‘person’ i.e., victim neutral. Interestingly, even this recommendation was not followed. It also suggested to redefine the offence of rape, while rape was re-defined, it was done by parliament in a rather curious manner as is illustrated later.

Section 375, as it stands today, reads thus – “A man is said to commit “rape” if he…” 

Hence, as it stands the IPC under Section 375 defines rape as an offence that can be committed only by a man on a woman. It is thus both perpetrator and victim specific.

Alongside the provision for rape, there were other provisions that were added as well in 2013 – the one being relevant for us here being that of gang rape under Section 376D of the IPC. Once again, the Verma Committee Recommendations were ignored. Curiously however there was an interesting change of words in Section 376D. The section reads thus – 

“Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape…” (emphasis mine)

Hence, the word used here is ‘persons’ as opposed to ‘man’ in Section 375. Why was this changed? One may argue this both ways. One argument is that it is but obvious, that if a woman cannot be prosecuted for rape this is legislative oversight and thus should be read as ‘man’. On the other hand, there might be an equally convincing argument that the legislature intended to make this difference and wanted to hold even women guilty of the offense of gang rape. 

I argue that it has to be the former. The (unfortunate) reason for such framing is not to be seen as the legislature purposefully using the word ‘person’. It is well evidently clear that the provision of S.376D is (unfortunately) a copy-paste of Section 5 of the POCSO Act. Thus, while parliament did red-define rape, it did so by ignoring the Verma Committee’s recommendations throughout but rather chose to use the definition mentioned in the POCSO Act. For clarity, Section 5 reads thus – 

“When a child is subjected to sexual assault [by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone…"

POCSO was always meant to be a legislation to protect children. Notwithstanding the obvious problems of copying a provision meant for children and using it for adult women, this has now become a source of confusion for judges. The use of the definitions used in POCSO also creates problems in other sections. As Dr. Mrinal Satish points out, Section 375(c) IPC is yet another example. The Section defines rape as the manipulation of any part of the body of a woman (say her finger) to cause penetration into any part of the body of the woman (say her nostril) – from a purely textual standpoint, even the above example could constitute as rape. While it is indeed mindless copying of the entire provision verbatim that has led to this confusion now, it remains a moot question whether women be prosecuted for gang rape even if they cannot be prosecuted for rape? This is precisely the question that was raised before the Allahabad HC.

The Unresolved Conundrum in Suneeta Pandey v State of UP

Suneeta was a woman who had been accused of gangrape. Her primary argument was that the summoning order should be quashed as she – being a woman cannot be prosecuted for rape and by extension, cannot be prosecuted for the offense of gang rape.

The HC rejected this argument, broadly using the logic mentioned in the preceding section. The court held that it is abundantly clear from a purely textual reading of Section 375 that women cannot commit rape as per the IPC. But if one reads Section 376D, the word used is ‘persons’ – thereby indicative of the fact that even women can commit gang rape. In this regard, the court went onto hold – 

“person' used in the Section should not be construed in a narrow sense. Section 11 I.P.C. defines ‘person’ as it includes any company or association or body of persons whether incorporated or not… As such, a women can not commit the offence of rape but if she facilitated the act of rape with a group of people then she may be prosecuted for Gang Rape in view of the amended provisions. Unlike man, a woman can also be held guilty of sexual offences. A woman can also be held guilty of gang rape if she has facilitated the act of rape with a group of person.” (emphasis mine)

Thus, the court held that the language of the statute is unambiguous and the because of the use of the word ‘person’, women can be prosecuted for the offense of gangrape if they facilitate the act.

Supreme Court and the Case of Priya Patel

Interestingly, in the case of Priya Patel v State of MP, this exact question was raised before the Supreme Court i.e., whether a women can be convicted for gang rape? It is important to note that this was before the 2013 amendment and hence the law applicable was different. Nonetheless, the reasoning of the court is helpful. The provision applicable for gang rape was under S.376(2)(g) – which is the punishment section for rape that says only a man can commit rape - wherein the section earlier said that “Whoever commits gang rape shall be punished…” 

The facts were such that this woman walked in on her husband raping another woman. When the victim asked for help, she slapped her and closed the door. It was argued that she should be punished for gang rape since she too had the common intention of raping her. The court rejected this argument. It was held by the court that – 

“A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub-section (2)(g) provides that "whoever commits 'gang rape" shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable."

Now, admittedly, this case was considered by the Allahabad High Court and it was held that this logic was employed and applied since gang rape was earlier not an independent offence, like it is now, under Section 376D.

The 2013 Act modified the definition of gang-rape. Prior to 2013, gang rape was defined as – “Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape”

Post 2013, the provision reads – “Where a woman is raped by one or more persons constituting a group or acting in furtherance of common intention each of those persons shall be deemed to have committed the offence of rape…” (emphasis mine)

As Satish highlights, the pre 2013 amendment was based on the principle of group liability. However, Section 376D tries to distinguish between membership of a group and common intention – which was bound to cause interpretative issues – such as in this case. Since Section 376D now talks about membership, the women, being a member of the group was hence held guilty by the Allahabad High Court.

However, the approach adopted in Suneeta Pandey would lead to an anomalous situation where women can be convicted of gang rape but not rape simpliciter. The reason why the word ‘person’ was employed in Section 376D, was arguably because of mindless copying from the POCSO Act. Extending the logic of Priya Patel, since Section 375 still defines rape as an offence capable of only being committed by a man, the word ‘person’ should be read narrowly under Section 376D so as to not include women.

Conclusion

This essay admits that the reasoning of the Allahabad High Court is not entirely flawed due to the textual dichotomy between Sections 375 and 376D IPC. However, via the case of Priya Patel, I have tried to highlight that it would indeed be an anomalous situation for the law to be able convict a woman of gang rape but not rape. A more consolidated legislative solution would be ideal, one where the terms of one statute are not mindlessly copied onto another.