Guest Post: The Penetration Paradigm and Inadequacies in India's Non-Penetrative Sexual Offence Law

(This is a guest post by Khushi Agarwal)

In India, sexual offences against women are broadly categorised into penetrative and non-penetrative acts. The former comes under the purview of Section 63 of the Bharatiya Nyaya Sanhita 2023 (“BNS”) dealing with rape whereas all other non-penetrative sexual acts are mostly brought under Section 74 dealing with indecent assault. Such binary classification often results in acts preceding penetration being prosecuted under Section 74 and are rarely categorised as an attempt to rape. The legal distinction between these provisions creates a disparity in the quantum of punishment awarded and calls for a deeper examination of the relevance of the penetration standard which distinguishes the two. By centring the definition of rape around penetration, does the BNS sufficiently address the gravity of other sexual offences which are non-penetrative in nature in terms of punishment? Can sexual activity be interpreted solely through the lens of penetration?

This post attempts to answer the questions posed above. To that end, I argue that the penetration standard is phallocentric in nature due to which it is problematic for deciding the severity of non-penetrative sexual offences. As a result, non-penetrative offences broadly get classified under any of the lesser offences. This argument, however, does not imply that the distinction should be abolished altogether. Its larger purpose is to show that the penetration standard is insufficient for determining the gravity of non-penetrative sexual offences.

The Penetration Standard and its Relevance in Non-Penetrative Sexual Offences

‘Grabbing the breasts of a minor girl, breaking the string of her pyjama and trying to drag her beneath a culvert would not come under the offence of rape or an attempt to rape.’ Anjale Patel v. Union of India |Diary No. 15118-2025 (Supreme Court of India – 24 March 2025).

‘Removing Girl's Innerwear, Undressing Oneself Not 'Attempt to Rape' But Indecent Assault’ Suwalal v. State of Rajasthan | S.B. Criminal Appeal No. 272/1991 (Rajasthan High Court – 9 June 2024).

If such actions do not amount to ‘attempt to rape,’ then what does? These rulings display the inclination towards the penetration test in the Indian legal system, while adjudicating over non-penetrative sexual violence. The judicial ambiguity surrounding the two offences primarily arises due to a broad classification of sexual offences as penetrative or non-penetrative in India. This raises questions about the relevance of penetration as a standard for distinction in sexual offences.

Notwithstanding anal, oral or urethral penetration, several jurisdictions, including India, refer to the vagina as the female sex organ. As a result, the penetration requirement is not fulfilled in certain acts such as those involving contact with the clitoris by the penis because of which the offender is charged under any of the lesser offences. For a woman, physical contact of her genitalia, or clitoris or sex organ(s) by the penis or any other object is a grave violation of her sexual autonomy and can be considered to be as violative as the penetration of her vagina. It constitutes a bodily invasion of a substantial privacy interest but due to the prevalence of the penetration standard, it is trivialised and not viewed as a grave offence. The idea that sexual intercourse necessarily involves some form of penetration, preferably penile, is an inherently male concept linked to male pleasure which has severe repercussions when viewed from a socio-legal perspective.

Presently, to constitute serious sexual violations means to engage in such conduct (such as penetration of vagina) which meets masculinist understandings of sexual intercourse. This implies that other sexual acts such as touching a woman's labia majoria or fondling breasts would constitute a lesser offence, though the acts are no less invasive or violative than penetration. It reflects a phallocentric bias as subjecting a victim to overtly sexual acts, penetrative or not, immensely violates the autonomy of an individual to determine who she wishes to engage in sexual interactions with and to what extent. It is here where the feminist perspective on the penetration standard gains importance and calls for a better legislation which addresses these gaps, especially when it comes to non-penetrative criminal acts.

Attempt to Rape and its conflation with Indecent Assault

It is due to insufficiency of the penetration standard that there have been overlaps in application of Section 64 r/w Section 62 BNS, dealing with attempt to rape, and Section 74 BNS. Where the actus reus of penetration is intervened before the actual commission takes place, there is a dilemma – will the antecedent acts come under the ambit of Section 64/62 or Section 74?

To answer this, it is important to understand the constituent elements of the two offences. The primary focus of Section 74 lies in “outraging the modesty of a woman” due to which questions as to which acts constitute a violation of woman’s modesty arise. In Keshab Padhan, the High Court laid out the test for application of Section 354 IPC (now Section 74 BNS) wherein it stated that culpability depends on whether a reasonable man would have thought that the act would likely outrage the modesty of a woman. However, such a broad test raises question regarding its application ranging from relatively minor offences to extremely serious incidents. It calls for altering the focus of the offence from notions of “modesty” to violation of sexual autonomy and for reorganising the provision in varying degrees of severity. “Modesty” becomes an archaic term which is unable to inculcate relatively serious offences which deeply violate a woman’s sexual autonomy.

An attempt under Section 64 or 62 BNS would refer to the intent of committing rape, combined with an act committed in furtherance of that intent which fell short of the actual commission of such offence. Often, the underlying principle for categorising acts under indecent assault and not attempts is that acts of the accused qualify under the ‘preparatory stage’. Preparation involves arranging the means essential for commission of the offence; attempt is the direct step towards the actus reus of the offence after the preparations are over. Indian courts have repeatedly held that the act(s) may not be the penultimate act to qualify as an attempt; but acts precedent which have been done with the objective of the completion of the offence also come under the scope of attempt. Hence, it is sufficient that the acts were reasonably proximate to the offence or if not prevented, would have resulted in the full consummation of the act attempted.

In Niranjan Singh, the accused undressed the victim, made her lie on the floor and proceeded towards penetration when he was caught. Applying Venkat Rao to the facts at hand, a clear case of attempt was made out — the accused’s acts had clearly gone beyond the preparatory stage and if someone had not intervened, it would lead to commission of the offence of rape, satisfying the test(s) laid out above. However, despite commission of such proximate acts, the Court ruled that since the accused had not tried to forcibly penetrate the victim, (which would otherwise have been the penultimate act for rape) ingredients of Section 376 IPC (now Section 64 BNS) were lacking and thus, it was not an attempt. This highlights an inconsistent stance and the courts’ inclination towards the penultimate act (i.e. penetration) test while determining culpability for an attempt to rape. It underlines the ambiguity surrounding an attempt to rape: Should an attempt to rape necessarily centre around an attempt to penetrate? If it is penetration, the slightest penetration would amount to rape and not attempt, if not then it is mostly brought under Section 354 IPC (Section 74 BNS). The court's reliance on penetration as the defining factor effectively downplays severity of near-identical acts preceding penetration in cases of both rape and indecent assault. Right to bodily autonomy is violated regardless of penetration due to which penetration as the sole defining factor for severity is insufficient. Thus, centring attempts around penetration leads to a grey area whereby courts are unclear about acts which sufficiently convey an attempt to penetrate to bring a charge under Section 376/511 IPC.

Case in point is Tarkeshwar Sahu, where the accused had taken a minor to his gumti for committing illicit sexual intercourse but had failed in the attempt because of the alarm raised by the victim. The Supreme Court decided that since the accused had not undressed himself or the victim, his acts came under the preparation stage whereas in Niranjan Singh, the accused had done so yet his acts came under the ambit of preparation and not attempt. Such contradictions signify the egregious approach taken by courts when it comes to non-penetrative sexual acts. The accused’s attempt to penetrate becomes the sole determining factor for distinguishing the two. An attempt to penetrate becomes an attempt to rape, thereby overlooking other aspects of the crime. Due to a high standard of penetration, victims are often unable to discharge the high burden of proof which results in comparatively minor consequences for severe offences. These cases are mere instances in a broad trend of troubling leniency in cases of non-penetrative sexual offences.

Conclusion

Therefore, reliance on penetration as a decisive factor creates ambiguity in determining the severity of non-penetrative sexual acts, often leading to lenient punishments for serious offences which would otherwise amount to attempt. This ambiguity not only undermines the victim's pursuit of justice but also creates loopholes for offenders to evade harsher consequences. From a victim’s point of view, penetration may not be the essence of sexual violence. While penetration is also harmful, it should not be the only defining criteria for imposing a harsher punishment and the standard should be in line with the severity of the accused’s actions. The sharp distinction between penetrative and non-penetrative offences overlooks the severity of violations of sexual autonomy and highlights a masculine outlook towards sexual offences which is inadequate in addressing trauma faced by victims. The law in its present form fails to acknowledge the gravity of non-penetrative acts of sexual violence and abuse. It calls for better understanding of sexual violence to not term actions under Section 62/64 BNS to be constituting violations of Section 74 BNS. This would ensure a fairer and a more correct application of the law while better addressing the gravity of non-penetrative sexual crimes.

Guest Post: Choice, Volition, Participation, Consent — Appraisal of a Minor's Consent in Child Sexual Abuse Cases

(This is a guest post by Siddharth Malik and Navjot Punia)

The Nagpur Bench of the Bombay High Court in Nitin Damodar Dhaberao v. State of Maharashtra [Crl Appln (BA) No. 724 / 2023 decided on 05.01.2024] granted bail to a 26-year-old accused who had been charged, among others, under Sections 4 and 6 of the Protection of Children from Sexual Offences Act 2012 (“POCSO”) and Section 376 of the Indian Penal Code 1860.

The case concerns a 13-year-old girl who had gone away with the 26-year-old accused, who had promised to marry her. She admitted to a love relationship with the accused and did not complain of use of any force or subjection to forceful sexual intercourse by the 26-year-old. Though a chargesheet had been filed in 2020, the trial had still not commenced. Accordingly, the Court released him on bail.

In this piece, while exploring the contours of consent in such cases, we argue that the Court’s reasoning in placing reliance on the voluntary and non-unilateral nature of the act is opposed to the scheme and purpose of POCSO and is deeply problematic, for such an approach places victims of child sexual abuse in an extremely vulnerable position due to the power relations that exist between them and the accused. We argue for a strict adherence to the standard of statutory rape in cases where the victim is not close to the age of consent and the relative age difference between the victim and the accused is so large that the power relations between them completely negatives the minor’s voluntariness or choice of participation in sexual activity.

Though the Court recognised that a minor’s consent has no relevance, it nonetheless proceeds to allude to it by invoking the purported love relationship of the victim with the accused. The brooding theme of the Court’s rationale behind granting bail to the accused remains to be the voluntary participation of the minor child in the alleged sexual act. The Court remarked that the case seems to be in the nature of mutual attraction between the two young persons, and it is not the case that the accused had subjected the victim to sexual assault out of lust. Thereafter, the Court took note of the delay in trial since the filing of chargesheet in 2020 and the fact that the trial will take its own time for final disposal, and proceeded to order release of the accused on bail.

The Court, we argue, erred in getting fixated with the binaries of presence or absence of consent in a case where such a consideration was not at all warranted. Feminist scholars like Julia Simon-Kerr and Catherine MacKinnon have argued that the entire concept of consent in cases involving sexual assault is deeply problematic as it does not take into account the ever enduring hierarchical relations that exist between sexes, and in a way reinforces such historically unequal relations. Arguments on similar lines, on the perception of consent and the innate subjectivity in this concept have been raised in the discourse over the ongoing marital rape challenge.

In light of such progressive developments, it is appalling to find judges taking such a parochial position in matters involving the bodily autonomy of individuals, where they fail to recognise the concept of statutory rape in its true sense. Enshrining the concept of statutory rape in cases of sexual offences involving minors is a move towards recognising the vulnerability and elasticity attached to the concept of consent. The tendency towards misjudgement in engaging in sexual activity renders a minor extremely vulnerable to coercion, abuse and exploitation, and a large difference in the relative age further aggravates the minor’s susceptibility to coercion, fear, confusion and peer pressure when it comes to engaging in a sexual relationship. As Catharine MacKinnon argues, consent does not account for sex that is the coerced result of psychological or social-hierarchical threats. What may appear to be a voluntary, consensual participation in sexual activity may not be so when seen in the context in which the minor’s supposed volition is exercised, thus rendering their choice of engaging in the sexual activity completely nugatory.

But in this case, not only did the Court fail to consider this reality of the supposed voluntariness of participation by the minor, it also failed to apply the judicial standards in deciding such cases. In the cases where a minor’s consent has been accounted for (thereby making the physical act non-unilateral hence not attracting POCSO), it has been done so only because the minor was close to attaining the age of consent. The issue of consent in the cases of minors who are about to turn major has been accepted to be an issue falling in a grey area, and has been accompanied by calls to lower the age for consent to 16, considering the instances where sufficient level of maturity has been gained (discussed here and in Sabari v. The Inspector of Police). The rationale behind allowing the consent of a minor to be given consideration has been elaborately explained in a Calcutta High Court judgment reproduced here:

“In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, a unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.”

However, in the present case, the Court alludes to the consent of the 13-year-old child by referring to the purported love relationship between the victim and the 26-year-old accused. The Court based its reasoning on the non-unilateral nature of the alleged physical relationship, completely overlooking the fact that this case could not have fallen in the grey area by virtue of the extremely young age of the victim, coupled with a very high relative age difference between them. As highlighted previously, the volition to participate in the physical act is negatived by this context in which such volition or choice is exercised by the minor. The maturity level of the parties involved – the victim of the age of 13, and the accused, 26 – is highly asymmetric, contributing to a skewed power relation which further warrants strict scrutiny of the minor’s exercise of volition.

Merely because the victim in this case has confessed that they were in a consensual relationship cannot allow the court to disregard the fact that there is a stark difference in the level of maturity (particularly in matters of sexual activity, discussed here) that can be expected from a 13-year-old as against 16-17 years old. It was inappropriate on part of the Court to conclude that the relationship was one that emerged out of love and not out of lust without adequately considering the effect, on the purported love relationship, of the context of their relative age and the asymmetric level of maturity of the two. The Court in the present case has extended the teenage romantic relationship exception to the accused, an individual (in the words of the Court) of the tender age of 26. The exception for relationships emerging out of love has generally been confined to cases where the accused was just above the borderline of 18 years. The Court has, however, unreasonably stretched this argument to include a relationship between 26- and 13-year-olds within it. The “close in age” exemption could not have been applied here. It has been stated in no uncertain terms in Independent Thought v. Union of India, (2017) 10 SCC 800, that-

“[t]here is no question of a girl child giving express or implied consent for sexual intercourse. The age of consent is statutorily and definitively fixed at 18 years and there is no law that provides for any specific deviation from this. Therefore, unless Parliament gives any specific indication (and it has not given any such indication) that the age of consent could be deviated from for any rational reason, we cannot assume that a girl child who is otherwise incapable of giving consent for sexual intercourse has nevertheless given such consent by implication, necessary or otherwise only by virtue of being married. It would be reading too much into the mind of the girl child and assuming a state of affairs for which there is neither any specific indication nor any warrant.”

Such an approach in POCSO cases has not been uncommon on part of our Courts (another such instance was the 'skin-to-skin' judgement of Bombay HC) whereby the rigours prescribed by statute are diluted in the courtroom. We therefore question if legislative means that recognise the complexity and layers of consent are in and of themselves sufficient to reform sexual offences adjudication (involving minors, more particularly), where the social and political context so strongly informs the perception and understanding of choice and consent for the functionaries in the adjudicatory process. Katharine K Baker has argued on similar lines to press on the need to reform the underlying social perceptions, and not just the law. She argues that–

“[c]riminally punishing nonconsensual sex has proved difficult [...] precisely because the legal proscription on nonconsensual sex competes with the masculinity norm, biological theory and popular belief, all of which re-enforce and legitimate the notion that men crave sex regardless of consent. Given this tension between the law and other well-established norms, it should come as little surprise that a sizable number of men have yet to internalize the moral wrong of nonconsensual sex. And even those men who have internalized the abstract wrong [...] have difficulty concretely identifying what nonconsensual sex is. This difficulty stems both from well-established sexual behaviour roles that shun explicit communication and from our continuing reluctance to explicitly discuss, both societally and individually, what consent is.”

The present bail order is only one such reflection of an instance where the social beliefs and a subjective understanding of consent overpowered the statutory obligation to strictly comply with the standards of statutory rape. It highlights the possibility of unsettling a victim-centric legislation through the Court’s perusal, albeit indirectly, of considerations that are foreign to the POCSO’s letter and purpose.

[Note: This piece is only intended to explore the Court’s appraisal of a minor’s consent (and effect thereof) in cases involving childhood sexual relations. It does not seek to argue against the grant of bail to the accused on account of delay in the trial of the offence.]

Time for a Seven-Judge Bench Reference to resolve the FIR conundrum?

On 12.08.2022, the Supreme Court in XYZ v. State of Madhya Pradesh & Ors. [Crl. Appeal No. 1184 of 2022] set aside an order of the Madhya Pradesh High Court, and directed that a First Information Report ["FIR"] ought to be registered under Section 154 of the Criminal Procedure Code, 1973 ["Cr.P.C.'] by the local police on the complaint of the Petitioner XYZ. The allegations were of sexual offences being committed by persons occupying positions of responsibility in the place of work of XYZ. 

In its order, the Court made important observations about the roles of both police and courts when dealing with such cases. In respect of the courts considering applications for directing police investigations, the Supreme Court accepted that there was an element of discretion here, but in respect of sexual offences the courts ought not to "further burden" victims and "press upon the police to investigate" cases [Para 25]. In respect of the police, it referred to the Constitution Bench judgment in Lalita Kumari [(2014) 2 SCC 1] and noted that:

"18. Whether or not the offence complaint of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence s made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR. The law in this regard is clear - police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence." [emphasis mine] 

Five days later, on 17.08.2022, a Single Judge Bench of the Delhi High Court passed an order in Syed Shahnawaz Hussain v. State & Anr. [Crl MC No. 3456/2018]. This, too, involved alleged sexual offences - rape, no less. The petition was filed in 2018 challenging orders of a magistrate directing that an FIR be registered (the High Court proceedings arose after a Sessions Court had rejected a revision petition against the magistrate order). 

By way of an interim order of 13.07.2018, the High Court had stayed registration of an FIR. Four years later though, the High Court dismissed the petition and directed police to register the FIR and proceed with a speedy investigation. While it did not cite XYZ v. Madhya Pradesh, the High Court also invoked Lalita Kumari to conclude that the decision as to whether or not an offence was made out was the result of an investigation after lodging an FIR, and could not be relied upon to forestall lodging an FIR itself.

Another five days after the order of the High Court, it was challenged [SLP (Crl.) 7653/2022] and came before a different bench of the Supreme Court than XYZ v. State of Madhya Pradesh. This bench on 22.08.2022 stayed operation of the High Court's and has, for now, returned the case to cold storage.

The contrast between the positions adopted in XYZ v. State of Madhya Pradesh—where the police had also conducted an inquiry and found no offence was made out—and the arguments of the Petitioner in Syed Shahnawaz Hussain could not be more striking. In the former, the Court emphatically rules out an element of discretion for the police in registering FIRs where complaints make out cognizable offences. Whereas in the latter, it is precisely the exercise of this discretion that the Petitioner submits is laudatory and ought to be considered by courts. Admittedly, only an interim order has been passed by the Supreme Court so far in the petition, but interim orders are only passed where the court thinks some merit exists in the case. As the order itself notes, the Court thinks that the issues "require consideration".

Both XYZ v. State of Madhya Pradesh and Syed Shahnawaz Hussain ultimately trace their roots back to the Constitution Bench judgment of the Supreme Court in Lalita Kumari, and I would argue that is where the problem lies. This very issue of whether police officers have any discretion to register FIRs was placed before the Constitution Bench, and in a remarkable judgment, the Court failed to resolve it with the level of clarity that it required [as explained at length in a different post]. Lalita Kumari failed to sufficiently decide what is an FIR — is it simply a ministerial act required to be done by the police once they receive a complaint, or is it something more? 

The text of the Cr.P.C. suggested it should be the former, but practice suggested that lodging of an FIR was a critical stage in the process, indicating that a formal accusation had been made by the state legitimising exercise of its coercive powers and imposing collateral consequences for persons (such as difficulties in obtaining passports or government jobs). If an FIR is such a critical stage, surely it cannot be reduced to the stage of a ministerial act, and must allow an element of discretion to ensure frivolous cases aren't lodged without requiring a full-blown investigation every time. 

After vacillating between the two views, the Court tried to adopt a middle path, which meant not deciding the issue one way or another, and without even considering the deeper issue of if there is no discretion in the police lodging an FIR, what about discretion in choosing the offences that it is invoking. Ultimately, it held that there is no discretion in lodging an FIR, but there is still some discretion in some cases, and did not say anything about deciding which offences are made out. 

The equanimity within Lalita Kumari has been reflective in practice ever since. It has meant that parties on both sides of the spectrum can invoke the same Constitution Bench judgment to make their case, which must be a unique distinction but certainly has left the practice of law poorer. The sharp contrasts between these two cases around alleged sexual offences highlighted in this post are only the most recent examples of the problems that this judgment has fostered. 

Would referring Lalita Kumari to seven judges help? I am not sure, because it is not possible for the courts to sufficiently resolve the complex problem of unravelling the significance of an FIR. Nevertheless, a clear judgment could help restore some clarity by looking closely at the scheme of the Cr.P.C. which does allow for some elements of discretion, albeit not at the registration of FIR itself. 

Perhaps it could even result in a de-linking of the registration of an FIR from collateral consequences, and allow a level of judicial oversight to come in between giving the process greater fairness and pre-emptively securing liberty interests. 

In that reference, a related and equally critical issue must be considered - the role of magistrates through the investigation process. Both XYZ v. State of Madhya Pradesh and Syed Shahnawaz Hussain concerned a magistrate's powers under Section 156(3) of the Code to direct the police to conduct investigations. This is one amongst many other clauses which bring the magistrate within the investigative process. 

Sitting along side this statutory involvement of magistrates in investigations, there exists a strong judicial view—stretching all the way back before independence—that courts and police operate in separate silos. A seven-judge reference would be an apt opportunity to reflect on the relative merits of this approach. 

Till that day comes, Lalita Kumari and its vacillation will continue to plague the system.        

The Judgment in State v Tarun Tejpal: Where do we go from here?

In a 2013 opinion piece, Professor Pratiksha Baxi wrote about the injustice that victims of sexual assault have historically suffered at the hands of the criminal process in India, reminding us that even those cases which forced our laws to change were stories of sexual assaults never proven before the eyes of law. That opinion piece was written in the wake of allegations in the case registered as State v. Tarun Tejpal, where on 21.05.2021, the Court of the Additional Sessions Judge at Panaji acquitted the accused on all charges, i.e. for alleged commission of offences under 376(2)(f), 376(2)(k), 354, 354A, 354B, 341, and 342 of the Indian Penal Code 1860. 

The judgment has been critiqued on the court's consideration of the victim's testimony [see, for instance, here, here and here]. It appears that an appeal has been filed by the state challenging the acquittal, where the High Court has initially directed that sections of the judgment ought to be redacted as they reveal the identity of the victim. 

This post does not attempt a microscopic review of the merits of the case, not only because an appeal is pending, but also because the judgment does not give a clear conspectus of the entire evidence on record to allow for such an exercise. Instead, while making some broad observations on the judgment (to the extent possible based on the evidence extracted) it brings up three issues that the judgment throws into sharp relief: (i) appreciating evidence, with a focus on witness credibility and the handling of inadmissible evidence at trial; (ii) consideration of digital evidence from victims in sexual assault cases, and; (iii) consequences of "bad" orders on the system itself.

On the "Sterling Quality" of Sole Testimony

7 years, 2 months, and 25 days: that is how long it took for this trial to finish from the date when the chargesheet was filed, which itself happened four months after the allegations first surfaced. Such delays are endemic to the system because of its structure [see here for a long take on this] — litigants can challenge almost every decision taken by the trial court during the process all the way to the Supreme Court, and this happened here as well. 

A very real consequence of delay is reducing the quality of oral testimony on offer before a court. The importance of oral testimony is a central feature of the criminal process almost everywhere. It is also one of its central fallacies because, despite overwhelming science to show the instability of memory, criminal trial rules still demand that we recall events to an unreal standard. This is something the Serial podcast has played with very well to demonstrate that not only do we forget things often, but we do so very quickly. In spite of this, trial rules play up contradictions in witnesses' recollections by comparing their oral testimony in court with what they said earlier during investigation. The more there are contradictions in versions, the more untruthful the witness supposedly is. Even in a setup like India, where trials take place years after investigations are done, and memories have faded to the point of oblivion, this is the yardstick adopted to judge the credibility of a witness. Sure, courts agree that some leeway is needed because of this, but the more contradictions you can point out, the worse the credibility of a witness. 

Which brings us to the specific context of rape trials and their rules of evidence. Unlike other cases, some special rules of evidence govern these cases in India, such as a rule that the "sole testimony" of the victim is enough to mandatorily create a presumption about the non-existence of consent where the alleged physical act is proven; with it being possible for the accused to rebut that presumption. Alongside this rule is a set of general judicially-ordained directions that ask courts to ordinarily trust the victim's version and not necessarily ask for corroborative evidence. This leads to a position, in practice, where all facts may be proven and a conviction may be based on the sole testimony of the victim. The result of such a situation which permits convictions based on the testimony of a single witness is to amp up the existing yardsticks for judging credibility: The court demands a "sterling witness" and not an ordinary one. 

Take a look at how the Supreme Court has, on one occasion, described it: 

"In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. ..." (Emphasis mine)

It's hard to fault this reaction which asks for more when it comes to this one witness which can decide a case, but it should be obvious by now that this reaction is illogical and sets an impossibly high standard for any witness to meet, let alone a witness who is the victim of sexual assault and is testifying about it. If anything, the judgment in Tejpal demonstrates the double-edged nature of this process of establishing the quality of a witness. Opening a victim to "cross-examination of any length and howsoever strenuous it may be" in a situation where it isn't enough to merely doubt the witness' narrative but also damage her credibility is an invitation to place the victim on trial rather than the facts. This appears to have been a tactic for the defence in Tejpal and the court obliged: it took the bait that the victim ought to behave in a certain way by setting up false ideals of credibility. 

So, the court found it incredible that the victim could have been assaulted because she was found smiling in the presence of the accused after a few days of the alleged incident. That the victim spoke to persons and legal professionals before moving a complaint, that she was educated, a journalist, and knew more than ordinary persons about cases of sexual assault owing to her professional expertise — all of this appears to have driven the court to expect an impossible level of consistency in narrative, and rendered every contradiction or omission in testimony fatal to her credibility. When the victim testified to having placed her professional responsibilities before other concerns, even her own well-being, it rendered her testimony unbelievable to the court [more on proving consent here]. The extent to which the court engaged in such an exercise is such that, in some places ("the prosecutrix typically gave highly evasive answers"), the judgment appears to be a contest for proving that the victim is an unbelievable liar rather than determining the innocence or guilt of an accused person.   

"Un-Ringing the Bell" and Character Evidence

Returning to the idea of special rules of evidence for rape trials, one such rule renders evidence of past sexual history irrelevant on the issue of proving consent and quality of consent. Another rule also renders it impermissible to pose questions to the witness on such lines during cross-examination. The consequence of terming something irrelevant is to render it inadmissible in evidence — such information cannot be the basis for arriving at any conclusions [more on conflating relevance and admissibility here]. 

Both of these rules can be seen as the legal system's technique of curbing tendencies to badger a witness and, in turn, help the trial stay rooted to the facts and not extraneous circumstances. Tejpal offers a stark reminder of the truth that these rules are only as good as the context they operate in — the victim went to the High Court to get an order for curbing irrelevant questioning, presumably because the trial court was not doing enough to screen irrelevant questions or the defence counsel was clever enough to frame the line of questioning in a way which made the character-questions not so obvious. 

Possibly poor implementation of trial rules which are meant to screen bad questions is a problem. But it should not distract us from a much bigger problem afflicting criminal trials which renders the special rules of evidence for rape cases anodyne. This is the manner in which evidence recording ordinarily takes place. Normally, irrelevant questions are curbed by way of raising objections when evidence is being recorded, and a court decides that objection before letting the testimony go on. However, in a bid to curb delays, criminal trials in India normally do not address objections this way. While objections are noted during recording of evidence they are decided only at the stage of argument. Using Tejpal as an example, the end result looks something like this: a judge still looks at all of the irrelevant evidence, and then in the end, says that it has to be "glossed over".

Think about what this means for a second: not only does a witness still have to answer the irrelevant questions but the answers, possibly inadmissible in evidence, get recorded as well and form part of the record. Judges are expected to "un-ring the bell" if they uphold the objection at the stage of arguments and not let the inadmissible evidence influence their decision. This is great on paper but, frankly, impossible to either implement practically or to account for subsequently. Decision-making is a complex phenomenon and while judges might not ascribe formal reasons in the judgment to inadmissible evidence, that material can undoubtedly still influence their thinking at a sub-conscious level. Are the special rules offering little more than a placebo, then, to deal with the problems at hand? 

The Victim as a Source of Evidence

A significant feature of the defence strategy in Tejpal arose out of scouring the victim's life for facts which could be used in evidence. This came as a result of the police having seized her mobile phone and also having sought access to her email etc. for purposes of the investigation. As per the rules of disclosure in a criminal trial in India, an accused is required to be provided copies of all materials that are proposed to be relied upon by the prosecution to establish its case at trial. Courts have interpreted these rules broadly of late, and have required sharing even material which the prosecution might not plan to rely upon but had seized during the course of the investigation, especially where this might prove beneficial to an accused. In line with this interpretation, the accused was provided clone copies of the mobile phone of the victim.   

Exploring digital devices in the hope to find material useful as evidence is not extraordinary in any sense for criminal investigations. But, as we know by now in this post, proving sexual assault cases at trial is different from going about this job in other cases. Here, it is unfortunately quite common for the victim to be on trial herself instead of only the facts. Broad rules of disclosure can create unique harms for victims in such cases and I need not elaborate upon the many kinds of dangerous consequences which can arise. In fact, the Supreme Court recognised this to some extent in 2019, ruling that a "copy" ought not to be given to the accused and only an inspection be allowed of some sensitive material as it agreed that giving copies could lead to an accused person duplicating the material to, amongst other things, defame the victim. The Supreme Court did not direct that an accused ought not to be given material because this would be unfair, creating a situation where accused persons must only look at what the prosecution thinks is relevant for a case. Allowing for such a rule in one set of cases is likely to seep across contexts and should be avoided no matter what.

What might be a way out? Better regulation of how investigations handle digital evidence is a good place to start. These are difficult questions as on one hand the police ought to have room to investigate all lines of inquiry but on the other hand a victim ought not to be humiliated via a "digital strip search" of her entire life on the pretext of establishing whether a specific set of allegations are credible or not [see here and here about how the UK was struggling with this problem]. By reducing the amount of access that can be demanded by law enforcement, unwanted intrusion into the private lives of victims can be minimised (a factor often cited as being a hindrance to reporting of sexual offences), while also automatically limiting the access given to an accused at trial. Victims ought to be informed at the outset about how their information can become part of the case and eventually land up in the hands of accused persons as well, giving them an option of not doing so without exposing them to censure while making them aware of how this might also hurt the investigation by closing down lines of inquiry. If anything, such an approach will help make informed decisions about how victims participate in the process, allowing them to retain agency. It might also help police in remaining focused on securing the available independent evidence — a feature which appears notably absent in Tejpal and contributed to castigating remarks from the court.   

Of course, it is impossible to change or hope for change in investigative practices without thinking about the trial as a whole. Investigations are all about collecting material which may be used as evidence — if what the trial wants as evidence focuses upon creating unrealistic "sterling witnesses" then that is what an investigation will also look for, going beyond the allegations and down the rabbit hole of credibility and character.

Being Wary of the Ripple Effect of "Bad" Orders

Public opinion has decried the judgment in Tejpal as a travesty. Beyond the debate about whether the court reached the right result, the criticism has been about how the court went about its task. Naturally, there has also been talk about doing something to prevent such episodes from repeating again. It is earmarked to go down in history as a "bad" order. Bad orders have, historically, carried serious repercussions for the criminal process in India, especially in the realm of sexual assault laws. As Professor Baxi's 2013 piece outlined, most of the notable changes to the legal system were a result of particular instances of injustice being done to women. In that way, Tejpal offers a chance to build consensus around problems afflicting the investigation and prosecution of sexual assault cases in India. That is the only silver lining around this dark cloud.

At the same time, one must be wary about the ripple effects of bad orders. The more recent examples of a consensus did see a response from the legislature, but hardly the kind of response which anybody except vote-seeking politicians supported. In 2013, parliament rushed amendments to the criminal law by picking and choosing parts of a Committee Report, and the outcome was insensible and illogical. In 2018, the outcome to public outrage was simply increasing the severity of crimes and adding the death penalty for some crimes, which many argued was counterproductive to the issue itself. The underlying commonality in these responses is their cost-effectiveness — legislators create new crimes or evidentiary rules but they hesitate in taking steps which cost money, such as improving state capacity to investigate and prosecute a case. 

This post suggests that there are some serious problems as well as red herrings out there when it comes to thinking about how the system deals with sexual assault cases. To make things better it is imperative that the conversation going ahead is rooted in an approach which considers the problems holistically — looking at the entire life of a sexual assault case and its consequences on stakeholders while recognising the unique harms to victims — instead of adopting band-aid measures which only worsen the malaise. 

Guest Post: Universalising the Application of 164(5A), Cr.P.C.?

(This is a Guest Post by Nandini Garg)

On 23 December 2012, a three member Committee headed by Justice (retd.) J.S. Verma was constituted which recommended amendments to criminal laws for quicker trial and more severe punishment for those convicted of committing sexual assault against women. Following these recommendations, sweeping changes were introduced in the Code of Criminal Procedure, 1973 (hereinafter as the “CrPC”). Section 164 (5A) was added to the CrPC as part of these changes as well, which concerned recording the statement of a victim of a sexual offence by a judicial magistrate. Section 164(5A) provided that, if such victim is physically or mentally disabled, her statement can be treated as the statement made in lieu of the examination-in-chief done later on at trial.

On 31 March 2021, while hearing an appeal, a division bench of the Bombay High Court noted that Section 164(5A) ought to be amended immediately to allow statements of victims of sexual offences to be treated as statements in lieu of their examination-in-chief, notwithstanding whether victims were differently abled or not. The appeal itself involved allegations of sexual abuse and capturing of nude photographs by the accused of his daughter. The court felt itself constrained to direct an acquittal on the rape charges largely due to its inability to treat the victim’s earlier statement as being her examination-in-chief. Thus, mindful of the victim’s plight, the Court urged for an immediate consideration of its suggestions and also directed its judgment be shared with the relevant authorities.

In this post, I look into the significance and evidentiary value of the statements recorded under Section 164, and the need to universalise the application of Section 164(5A) and the limitations of the same.

Role of Section 164, CrPC statements in Sexual Offences

Prosecutions for sexual offences often do not consist of independent witnesses to the heinous deed itself; the victim’s testimony, besides forensic evidence, is the bedrock of the case. At the same time, victims in such cases suffer immense physical, mental, emotional and social trauma, and are often not in a position to fearlessly and immediately report the crime let alone testify at multiple stages of the process about the trauma suffered by them. These universal problems are compounded by the unique societal pressures faced by victims in sexual offences; in India, the victim suffers great humiliation on account of a taint of ‘impurity’ which lends to poor rates of reporting sexual offences as well as of continuing with the prosecution. Keeping this in mind, various protections like recording of FIR by women officers and recording of the victim's statement by the magistrate etc. are currently provided under the CrPC, all to bolster the ability of a victim to give her version at the initial stages of the case.

As soon as a sexual offence is reported to the police, the statements of victims are ordinarily recorded by a magistrate under Section 164(5A) today. This statement has to be recorded like a statement recorded from a witness in the court and an oath has to be administered. As a result of an oath being administered, these statements are qualitatively more reliable than statements ordinarily made to police officers during investigations, which are unsigned and statutorily inadmissible in evidence. 

Although statements under Section 164 are recorded by a magistrate on oath, they are recorded at the stage of investigation and not at the stage of trial. The defence has no opportunity to cross-examine the witness on such statements. Hence, they cannot be used as substantive evidence. It is settled law that the statements recorded under Section 164 can be used only for the purpose of contradicting or corroborating the witness during the trial under Sections 145 and 157 of the Indian Evidence Act, 1872 (hereinafter as the “IEA”), respectively. They are merely considered as ʻformer/previous statementʼ which can be used to either support or refute a witness's testimony. If the witness completely upends her Section 164 statement at trial and there is no other evidence against the accused, the accused cannot be convicted on the basis of Section 164 statement.

The testimony of the prosecutrix (i.e. the victim in a sexual offence) is of immense significance in cases of sexual offences. If credible, the court may convict the accused on the sole testimony of prosecutrix and it requires no corroboration. Statements made under Section 164(5A) CrPC add weight to testimony given by the prosecutrix in her examination-in-chief at trial; and, as was mentioned above, can also undercut the value of this testimony.

This gives rise to a peculiar difficulty in sexual offence prosecutions. In many cases where victim blows the whistle at first instance, the victim faces pressure subsequently to either withdraw the case or renege from her initial statement at trial. It is more visible where a victim's own relatives are accused (the majority of cases), and due to which the thrust is on saving and preserving the false notion of family ʻhonour and shameʼ. In other words, the victim's initial statement before a magistrate might have been recorded free of pressure, but this version may be upended at later stages due to  factors beyond the victim's control, and she is forced to change her story which leaves a prosecution in tatters.

Need for Universalising Section 164(5A), CrPC and its Limitations

Section 164(5A), under clause (b), creates an exception to the general rule which does not allow for treating statements made during the investigation as substantive evidence by permitting such statements to be treated as statements in lieu of examination-in-chief if the victim is physically or mentally disabled, either on temporary or permanent basis. The victim can directly be cross-examined on the statement recorded under Section 164(5A)(a), doing away with the need of her examination-in-chief altogether. 

But, as we already know, all victims of sexual offences often suffer various pressures outside of court, compromising their ability to give free and correct testimony. The Justice Verma Committee noted that -

“In our tradition bound society, structured on the basis of conservative values, when a woman is subjected to sexual assault in any form, it translates into a multiple crime. She is raped at home (literally and figuratively) and in public, followed by demeaning medical examination, examination and cross-examination by the police and in court, in salacious media reports, and in the insensitive response of society, including family and acquaintances. In sum, the victim suffers intermittent rape in full public glare.”

Keeping this in mind, if the victim's statement under Section 164(5A) is considered as statement in lieu of examination-in-chief in all cases, it will certainly prove advantageous and prevent the harassment of victims. Underlining the need for evolving a fast track procedure for prosecution of rape cases, the Supreme Court has also observed that –

“5. What we wished to emphasise is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under section 164 Cr.P.C. and the same be kept in sealed cover to be produced and treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to cross examine them with further liberty to the accused to lead his defence witness and other evidence with a right to cross examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trial ...”

Universalising the application of Section 164(5A) CrPC to all victims of sexual offences will go a long way in strengthening the prosecution's case and minimising the harassment of victims. However, this cannot come at the cost of denuding accused persons of their opportunity to cross-examine the witness. This is, by no means, contrary to the spirit of making the trial environment more conducive to victims for enabling cross-examination only goes to ensure that the testimony of the victim is well-founded. It would, therefore, be a mistake to think that enabling 164(5A) to substitute the examination-in-chief will automatically result in convictions. The prosecution case must still be credible and reliable, supported by other evidence where available. 

Conclusion

Considering the harsh and unsympathetic attitude of the system and society towards the victims of sexual offences the Bombay High Court has urged for, what this author thinks, is a much-needed amendment of Section 164(5A), CrPC. If the statement of a victim recorded under section 164 is kept in sealed cover and is directly produced in the Court as her deposition, it will help to ensure the authenticity of her statement, save her from being coerced to change her story, and will potentially serve as reliable evidence for trial. However, the ordinary rules of trial cannot be ignored altogether, such as permitting cross-examination of the victim and considering her overall testimony in light of other available evidence and material.