A shocking recent judgement of the Supreme Court holds that no person can be punished for attempt to rape under the IPC. In this case a man, Tarkeshwar Sahu, a resident of Jharkhand, had lured a twelve-year-old girl to his hut, removed his clothes and the girl’s, and was trying to rape her. The SC only convicted the accused of molestation under Section 354 IPC which states that assault ‘intending to outrage’ the ‘modesty’ of a woman is punishable with up to two years’ imprisonment. The judgement is based on an erroneous interpretation of the law and also highlights the need for extensive amendments to deal with the law on sexual assault in general and child sexual abuse in particular.

Apparently, the Supreme Court held that Section 511 of the IPC only deals with attempts to commit offences punishable by life-imprisonment. A reading of the section and its illustrations will show that this is not true. Section 511 deals with attempts to commit any offence punishable by imprisonment for life, or other imprisonment, for which no specific punishment has been provided for in the code. The section states that an attempt to commit an offence will be punishable with half the longest term of punishment that is prescribed for committing the respective offence.

In the past we have had occasions to criticise judgments on attempt to rape because the courts, including the Supreme Court, have been extremely reluctant to hold a person guilty of attempt, even though the accused had, in fact, been trying to rape. Often the courts have relied upon technicalities to rule out attempt, particularly in cases in which the attempt was not at the last stage of the act. The courts have done this by drawing a distinction between the preparation to commit rape and the attempt to commit rape, and have invariably, as in this case, imposed a relatively minor punishment for molestation (up to two years).

In some cases courts have relied upon an old case decided way back in the 19th century (Empress V/s Shankar) which had held that a person can be convicted for an attempt to commit rape only if his conduct indicates a determination to gratify his passions and in spite of all resistance. Thus in various cases where a woman cried out for help or hit the assailant and he ran away, the courts have held that it cannot be said that the accused was determined to have sexual intercourse.

In the case of Jai Chand V/s the State, even though the accused (a hospital orderly) had forcibly laid the complainant nurse on the bed and after breaking the string of her trousers and removed her sanitary napkin, the High Court held that no attempt to rape had been proved, as the accused had not gone beyond the stage of preparation! The Court then proceeded to alter the conviction by the trial court of attempt to rape to one under Section 354 IPC, and punished the accused with two years’ imprisonment. All these judgements are informed with a patriarchal notion of what constitutes an offence of attempt to rape, which has not changed since the 19th century.

The judgement of Justices S B Sinha and Dalbir Bhandari also underlines the need for a law on child sexual abuse and change in the definition of molestation and rape. Sexual abuse of a child, even when it is not penetrative, should be an even harsher offence than molestation of an adult woman. Moreover, often, the sexual abuse of a child is not only by touching, but also by penetration of fingers and other objects. This at present is not recognised as rape under our law.

Furthermore, any non-penetrative sexual assault should constitute molestation and should be subject to a much higher punishment, even for an adult, than at present. The present definition of molestation makes an assault on a woman culpable only if it is done with the intention of outraging her modesty (whatever that means). Earlier the SC had held in a 1967 judgment that all girls possess modesty which is capable of being violated. The Rupan Deol Bajaj judgment in a positive interpretation held that all acts which are an affront to the dignity of a woman outrage her modesty.

The present judgement by interpreting the law is to forever excuse a man who attempts to rape and is as culpable as a rapist in many senses, is not only regrettable, but needs to be immediately reviewed by the Supreme Court itself. The judgement sets a dangerous precedent and will allow rapists, who have been unsuccessful in their attempts, to go unpunished for their real crime and to continue to pose a threat to women and children.