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.

Guest Post: The Unchartered Territory of Customer Liability under Section 370-A IPC

(This is a guest post co-authored by Rupam Jha and Ashwin Vardarajan)

On 20th September, 2014, suspecting organised prostitution, the Telangana police inspected a colony located in Cyberabad, Telangana. They arrested two individuals, allegedly, for hiring prostitutes; and both were booked under Section 370A of the Indian Penal Code, 1860 [‘IPC’] that criminalises sexual exploitation of trafficked persons. Praying for the FIR to be quashed, the two accused, then, approached the Hyderabad High Court (‘HC’), contending that an offence under Section 370A was not made out against them. The HC, however, rejected this argument, observing, inter alia, that Section 370A takes “in its fold the customer[s] also.” [Naveen v. State of Telangana (2015)]. Three years later, the Karnataka HC in Pradeeban v. State (2018), confronted with the same question, noted that Section 370A “in no way attract[s] for punishment so far as the customers are concerned”. This contrast in judicial interpretation raises a pertinent issue, and it is in this light that we aim to discuss Section 370A IPC — to determine whether criminal liability of a customer [of prostitution] is intrinsic to this provision.

Legislative Genesis of Section 370A

The law pertaining to sexual exploitation of trafficked persons is broadly provided under two statutes in India: The Immoral Traffic (Prevention) Act, 1956 (‘ITPA’) and the IPC. In order to understand the conundrum of Section 370A we must undertake a brief study of its legislative history, which involves both these statutes.

An amendment bill to amend the ITPA, inserting, inter alia, Section 5C into the said act, was tabled before the Parliament in 2006. Section 5C of the bill provided punishment for any person “who visits or is found in a brothel for the purpose of sexual exploitation of any victim of trafficking in persons”. This provision, quite visibly, criminalises the act of a person sexually exploiting a trafficked person, without adequately laying down the standards of intent or knowledge that the accused must have while engaging in such exploitation. The bill was, then, referred to the Parliamentary Standing Committee (‘PSC’). On 23rd November, 2006, providing its assessment, the PSC released the 182nd PSC Report. The report noted that the provision had received ‘mixed reactions’ — conveying the concerns of certain NGOs who believed that the provision fails to acknowledge the very likelihood of consensual and voluntary prostitution (para. 13.3). Further, the report put forth several arguments against Section 5C pertaining to, inter alia, how an accused person visiting a brothel would ideally not be able to distinguish between a trafficked and a non-trafficked person, there being no definition of ‘sexual exploitation’, and the potential harassment by the police of every person visiting brothels [See paras 13.6-13.8].

Then, in 2012, the Nirbhaya incident happened, which threw light on many lacunae in the framework of criminal laws in India especially sexual offences. Accordingly, the JS Verma Committee (‘JSVC’), tasked with the duty to recommend changes to the existing framework of criminal law, recommended several amendments to the IPC in its 2013 Report. In response to the need of “a comprehensive code to deal with trafficking and sexual exploitation (both commercial and otherwise)”, the Committee amended Section 370, and added Section 370A to criminalise the act of “employing” a trafficked person/minor for “forced labour” (p.172 & 439). The provision, as originally recommended, was also endorsed (at para.5.16.1) by the 167th Department Related PSC Report on the Criminal Law (Amendment) Bill, 2012. Notably, there was an unnamed member who opined that Section 370A should be confined to offences relating to ‘sexual exploitation’ and not ‘forced labour’ (para. 3.2.26). Section 370A (2) as proposed by the JSVC read as follows:

“Whoever, despite knowing, or having a reason to believe that an adult has been trafficked, employs such adult for labour, commits the offence of forced labour of a trafficked adult, and shall be punished with rigorous imprisonment for a term which shall not be less than three years but may extend to five years.” (Emphasis added)

However, when Section 370A was formally introduced vide the Criminal Law (Amendment) Act, 2013, its focus shifted from those employing trafficked persons into ‘force labour’, to those engaging in ‘sexual exploitation’ of trafficked persons/minors – thereby critically deviating from the amendment proposed by the JSVC. The inserted provision of Section 370A (2) now reads as follows:

“Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.” (Emphasis added)

The legislature offered no justification for this change. Further, in their move to alter the proposed Section 370A, the Parliament has brought back the concerns echoed by the PSC on the 2006 ITPA amendment bill. 

The Shallow Judicial Explication

In the backdrop of this alteration, the Hyderabad HC in Naveen held the customer, that is — in this context - the person who engages the services of a prostitute, may be tried under Section 370A — a decision that has since been followed quite a few times (illustratively, see here). In doing so, the courts implicitly raise either of the two presumptions against the customer: firstly, the accused's knowledge about the victim being trafficked; or, secondly, a reason for the accused to believe so. This eliminates the difference between a customer “who engages the services of the prostitute” and the individual who “engages such [trafficked] person for sexual exploitation”. What is more, such interpretation fails to take note of the element of volition, in so far as the sex worker is concerned, and places an arguably undue burden on the customer to conduct a backdrop check of the sex worker. 

Bewilderingly, in holding the “customer” liable under the provision, the Hyderabad HC in Naveen relied on the JSVC Report — observing that this interpretation fell in line with “the object with which the report was submitted”. As has been previously established, Section 370A bears no resemblance to the suggestion made in the committee report. JSVC suggested a provision criminalising the engagement of trafficked persons for forced labour, while Section 370A now criminalises engagement of trafficked persons for sexual exploitation. Therefore, it is unclear how the Courts reached the conclusion that they did, considering, particularly, that not once has the text of the bare provision been satisfactorily discussed in any case.

This difference in the judicial opinions of the Hyderabad and Karnataka HC (as discussed earlier) in this regard were brought to the notice of the Hyderabad HC in Mohd. Riyaz v. State of Telangana (2018). The petitioners contended that the decision in Naveen did not lay down the correct law under Section 370A — thus warranting reconsideration. However, the HC rejected this argument and held that a person coming to a brothel, or hiring a prostitute/sex worker, for participating in sexual intercourse “is said to have engaged in sexual exploitation” and may thus be liable under Section 370A. This explanation fails to consider the entire text of the provision. Put simply, Section 370A does not criminalise the very act of hiring a prostitute. Rather, it criminalises the act of engaging a trafficked individual for sexual exploitation. The interpretation offered by the Courts lends to the belief that hiring a prostitute, irrespective of the consensual nature of the act, by its very nature, is tantamount to sexual exploitation of a trafficked person. Now, although, Section 2(f) of ITPA, defines prostitution to include sexual exploitation, the key word for us to consider here in the text of Section 370A is trafficked, and the knowledge of the same. 

Moreover, as noted by the 182nd PSC Report, this allows the police the power to harass anyone who hires a prostitute, or goes to a brothel. Interestingly, Shashi Tharoor, during the Lok Sabha discussions on Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, too criticised Section 370A for being interpreted too “liberally by the Police and the courts, going well beyond the legislative intent of those provisions.”

Conclusion

To summarise, a literal interpretation of Section 370A is capable of encompassing customers – as prostitution is also considered a form of ‘sexual exploitation’. The catch here is whether the customer had ‘knowledge’ of him/her sexually exploiting a ‘trafficked’ person/minor. This determination of knowledge under Section 370A is seemingly difficult in comparison to other offences under IPC. Lastly, it has a detrimental effect on the rights of trade and livelihood of sex workers – as this interpretation directly discourages a profession (prostitution) which is not criminalised per se. It is pertinent, therefore, that this interpretative lacuna be looked into at length, and its implications be duly weighed by the courts in the future.