International law on the term ' Rape'

 The rule of strict interpretation does not also prevent the court from interpreting a statute according to its current meaning and applying the language to consider the recent scientific developments and the knowledge it provides us with. Thus, in R v. Ireland (House of Lords, 1997), psychiatric injury caused by silent telephone calls was held to amount to 'assault' and 'bodily harm' under Section 20 and 47 of the Offence Against the Persons Act, even though at the time of the enactment of the Act - in 1861 - the field of psychiatry didn't include this understanding.

Even international law now says that rape may be accepted as "the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by coercion or force or threat of use of force against the victim or a third person." Similarly, Article 2 of the Declaration on the Elimination of Violence Against Women reads as follows:

“Violence against women shall be understood to encompass but not limited to ... Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.”

Fellow commonwealth nation Singapore's Penal Code contains a provision identical to that of Section 377 of the Indian Penal Code. In a judgment rendered by the Court of Appeal in Singapore it was held that forced anal intercourse represented the gravest form of sexual abuse and by its very act contained an element of violence. Australian law defines rape as sexual intercourse without consent in the Criminal Law Consolidation Act in Section 48. Sexual intercourse includes anal and oral intercourse in Section 5 under the same Act. Judgments by the Australian courts reveal that insertion of objects into the victim's vagina and anus amount to rape. The definition of rape states that sexual penetration of the body is necessary but the slightest penetration of the body of the female by the male organ is sufficient. Emphasis on the word "slightest" reveals the intent behind the definition is to give the victim and not the criminal the benefit of the doubt.

In light of the multitude of case law and well evolved jurisprudence on the subject, not altering the definition of rape merely because "the entire legal fraternity of India, lawyers or judges, have the definition of India, lawyers or judges, have the definition contained in Section 375 IPC engrained in their minds ..." is ludicrous. The Indian Penal Code was drafted at a time when Indians were not allowed the freedom to think for themselves by the English. It came into force in 1860 and in the past 140 years has gone through few changes. An independent democracy should not confine itself to laws made with a bias towards the now outdated principles of colonial criminal law. The judiciary and the legislature have a duty to promote the principles enshrined in the Constitution and a responsibility, however lofty it may seem, to ensure that the perpetrators of these violent crimes are punished.

Changing social values - and globalization - certainly alters the general comprehension of a word. In a country rife with misconceptions about rape and rape victims, corrupt and sloppy police work, widespread reports of police mistreatment of victims including custodial rape, and deeply ingrained cultural and religious stereotypes, more alertness by the courts is needed so that justice is seen to be done, and not thwarted by the letter of the law. Sakshi fails that test. Inevitably, then, the Apex Court's ruling this time will not be an end to this issue.