In the year 2000, the Law Commission of India submitted its “Review of Rape Laws” to the government. 4th December 2012 was the date on which the Criminal Law (Amendment) Bill 2012 was finally introduced in the Lok Sabha. It has taken the government over a decade to initiate some significant amendments to the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, concerning sexual assaults on women. After two decades of relentless campaign by women and child rights groups, lawmakers revisited the archaic rape laws in India. However, it doesn’t look like the battle is over yet.

Ironically, the Bill was introduced about ten days before the horrific Delhi gang rape. The brutality of this rape and the nature of injuries to the young woman and so many others that are now being discussed in the media, highlight how woefully inadequate the current Indian rape law is to punish the perpetrators in any exemplary manner.

For the victims, the first hurdle falls at the definition of the crime itself. The varied types of sexual assaults involving the act, the conduct of parties, the gender and the age, all make the exercise of defining sexual assault a controversial exercise. Complexities increase in the context of societies, cultures and stereotypes.

The proposed changes to the rape law are to a limited extent radical. For the first time the Indian Penal Code (IPC) is attempting to look at rape from the perspective of the woman or child sexually assaulted rather than from a patriarchal notion of the crime. Consequence is a wider definition of rape.

Presently, crimes against women are covered in the IPC under Section 375 which is the law relating to rape, Section 354 relating to molestation and Section 509 is the law relating to sexual harassment (unhappily popular as “eve-teasing”). Section 376 covers punishment for rape.

Conceptually, the current definition of rape is based on penile-vaginal penetration and does not consider other forms of penetrative sexual assault, which can be equally traumatic and humiliating for the victim. To begin with, the proposed Section 375 replaces “rape” with the term “sexual assault” recognising that the act of violence is one that affects the bodily integrity of a woman and her sexual autonomy. The scope of penetrative sexual assault has also been widened to include penetration by one person of the penis or parts of the body or any object into the vagina, anus or urethra or mouth of another person. The proposed Bill also raised the age of consent to eighteen from sixteen. However, the demand of women’s groups to recognise marital rape as an offence under this Section has found no echo in the Bill. Earlier, the Law Commission too had rejected suggestion to delete the exception to rape clause in the case of marital rape saying that it would amount to excessive interference in the marriage.

The argument that the husband to cause physical injury to his wife, following the fact that he is the husband of the victim so would not be an extenuating factor under the law or under the Domestic Violence Act, did not wash with the Law Commission or the government. The only concession made for the exception to rape to operate was an increase in the age of the wife from fifteen to sixteen.

The Bill doesn’t touch upon any of the circumstances which define rape for the reason that these provisions have been interpreted and elucidated by the courts and so did not call for drafting in new expressions or words. An opportunity to revisit and clarify certain archaic provisions of the definition has been missed in the bargain.

“Consent” is one term which required defining in the specific context of sexual assaults. Courts have been referring to Section 90 to determine “consent” or rather what cannot be regarded as consent. Particularly problematic to decide are cases where rape has been alleged for breach of promise to marry, where courts have been stretching “under a misconception of facts” to test the validity of consent obtained through misrepresentation.

There were suggestions for a specific definition of “consent” within Section 375 to mean “unequivocal voluntary agreement”, which does not find place in the Bill. Such a definition would have ensured that in the context of sexual assaults, consent could not be assumed even if a woman remained passive for any reason. When parties did not agree to the same thing in the same sense, it is no consent. Both perpetrators and victims of the sexual assault, as defined in the Bill, are gender neutral keeping in mind that the victims in many of these crimes are children of either gender or transgender. Women’s groups have however demanded that perpetrators ought to be gender specific, that is, male only, whereas the victim could be of any gender.

Where the Bill truly falls short is in not accepting the recommendations of the Law Commission and the NCW on the definition of sexual assaults of the non-penetrative kind, which are currently inadequately covered under Sections 354 and Section 509, other than enhancing punishments under these sections.

Section 354 of IPC deals with assaulting a woman or using criminal force on her with the intention of outraging her modesty. Section 509 criminalises uttering of any word or sound or gesture or exhibiting any object to a woman with the intention that she sees or hears it or it intrudes her privacy with the intention of insulting her modesty.

Women’s groups have long demanded a comprehensive look at the varied nonpenetrative sexual offences like molestation, sexual harassment, stalking, cyber stalking, stripping and parading naked. The Law Commission and the NCW had recommended a separate section called “unlawful sexual contact”, which was defined to cover the act of touching, directly or indirectly, with a part of the body or with an object, any part of the body of another person with sexual intent and without the consent of such other person. There was also need to remove that very Victorian phrase of “outraging the modesty of a woman” in Section 354 and replacing it with ‘‘violating the bodily integrity of the woman”, which allows for a graded identification of non-penetrative types of sexual assault.

There was need too for broadening the scope of Section 509 in the Bill to include acts and conduct, which do not involve physical contact but is intended to harass or insult or humiliate women, with or without sexual intent. Incidents like sexual harassment including sexual harassment at work places, blackmailing, stalking including cyber stalking, stripping, tonsuring, etc., which are presently grey areas or completely absent as offences under the IPC, ought to have been covered under the ambit of this section.