Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are 'sexual intercourse with a woman' and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with 'criminal assault on a woman with intent to outrage her modesty' and Section 377 IPC, covering 'carnal intercourse against the order of nature'.

The narrow definition of rape has been criticized by Indian and international women's and children's organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with any constitutional provisions, natural justice or equity. Their reasons have been succinctly encapsulated in a recent Public Interest Litigation before the Supreme Court (Sakshi v. Union of India, 2004).

... the interpretation [by which such other forms of abuse as offences fall under Section 354 IPC or Section 377 IPC] is ... contrary to the contemporary understanding of sexual abuse and violence all over the world. There has been for some time a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behaviour.

But in Sakshi, the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion.

In the past, however, judges have actively sought the spirit of the law, and not just its literal wording. This activism has greatly benefited powerless minorities, such as bonded labourers, prison inmates, sex workers and others crusading for protection of their human rights. Those hoping for such activism from the judges this time were disappointed. One reason for the judges' reluctance to make a liberal interpretation could be that for some time now, there has been a significant debate ongoing that activist judges have overstepped the boundaries of the judiciary and impinged on legislative matters.

Concern over such criticism is understandable. But at the same time, the courts should recognize that the legal system is an effective delivery system of the benefits the law guarantees, especially when the beneficiaries are the weaker sections of society. There is precedent for such an expanded view. For example, while dealing with a case of rape of an eight year old girl in Madan Gopal Kakkad v. Naval Dubey, the Supreme Court acknowledged the severity of the crime of child rape and saw fit to use the "sword of justice" to punish the criminal under Article 376 IPC in a case where there was only partial penetration of the victim. The Court opined:

Though all sexual assaults on female children are not reported and do not come to light there is an alarming increase of sexual offences on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore such offenders who are a menace to civilized society should be mercilessly punished in the severest terms.

The constitution endows the Supreme Court with a residuary power under Article 142 power to pass such decrees or make such orders as are necessary for doing complete justice in matters before it. The role that the Apex Court plays under Article 142 is plainly that of a 'problem solver' in nebulous areas of the law. This provision permits the Supreme Court to do more than what the letter of the law requires; activism, therefore, can be undertaken with sure legal footing.

Judges are expected to be circumspect and self-disciplined in the discharge of their judicial functions. But the fact is, judicial activism in India is partly the consequence of a legislative vacuum, especially in the field of human rights. Where lawmakers are inattentive to the rights of citizens, the Constitution empowers the Apex Court to be, at times, plainly legislative in nature. The rule of strict construction is not a rule to be applied universally and, in any event, should not "leave loopholes for the offender to sneak out of the meshes of the law and criminal jurisprudence must depart from old canons defeating criminal statutes and calculated to protect the public health."

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.