The legal question of whether a woman can be held liable for gang rape under Section 376D of the Indian Penal Code (IPC) or its corresponding Section 70 of the Bharatiya Nyaya Sanhita, 2023, raises significant interpretative challenges. The case of Sunita Pandey vs. State of Uttar Pradesh & Others reignites this debate. The intricacies of statutory interpretation, constitutional principles of equality and non-discrimination, and judicial precedents create a compelling framework for analysis. This article delves into the evolving contours of gender neutrality in criminal law, the doctrinal limits of culpability, and the constitutional ethos underpinning the adjudication of sexual offences.

Introduction
The jurisprudence of sexual offences in India has traditionally been gender-specific, with the IPC assuming a binary framework of victim-perpetrator dynamics in cases of sexual violence. Section 376D IPC criminalizes gang rape, describing the offence as one where a woman is subjected to rape by one or more persons acting in concert. Section 70 of the Bharatiya Nyaya Sanhita (BNS), 2023, mirrors this provision with slight terminological modifications but retains the core essence of collective culpability.

The seminal case of Sunita Pandey vs. State of Uttar Pradesh & Others invites scrutiny into whether a woman, acting in complicity or facilitation, can be charged under these provisions. It necessitates a doctrinal inquiry into the legislative intent, judicial interpretations, and the boundaries of criminal liability within a constitutional framework.

Legislative Framework

Section 376D IPC

Section 376D of the IPC provides:

"Where a woman is raped by one or more persons constituting a group, or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term not less than twenty years..."

Section 70 BNS

Section 70 of the BNS is nearly identical in substance but incorporates modern terminology. It emphasizes collective intent and culpability, applying to all individuals acting as part of the group.

Constitutional Principles

• Article 14 (Equality before Law): Mandates equality before the law and equal protection of laws, raising questions about the gender-specific language of certain statutes.
• Article 15(3): Allows for special provisions in favor of women and children, which often underpins protective legislations.
• Article 21 (Right to Life and Personal Liberty): The expansive interpretation of Article 21 includes the right to dignity and protection from sexual violence.

Case Analysis: Sunita Pandey vs. State of Uttar Pradesh & Others

Facts of the Case

In this case, Sunita Pandey was accused of facilitating the gang rape of a victim by luring her to the site of the crime and enabling the male perpetrators to commit the offence. The prosecution invoked Section 376D IPC, asserting that her actions, though not constituting direct physical perpetration, rendered her culpable as part of the group.

Legal Issues

• Can a woman be charged under Section 376D IPC or Section 70 BNS as a co-perpetrator or facilitator?
• Does the statutory language presuppose only male offenders, thus excluding women from its ambit?
• Does charging a woman under these provisions align with constitutional principles of equality and non-discrimination?
   

Arguments

Prosecution's Argument

The prosecution argued that Section 376D criminalizes all individuals acting in furtherance of a common intention to commit gang rape, regardless of gender. Sunita Pandey's role in luring the victim constituted active participation in the crime, making her equally culpable under the doctrine of constructive liability.

Defense's Argument

The defense contended that the legislative intent of Section 376D IPC and Section 70 BNS exclusively targets male perpetrators. It was argued that the statutory language and societal context of gang rape inherently presume male offenders. Charging a woman under these provisions would amount to judicial overreach and misinterpretation of legislative intent.
 

Court's Judgment

The court ruled that while the statutory language of Section 376D does not explicitly exclude women, its interpretation must be guided by legislative intent and the overarching principles of criminal law. The court held that:

• A woman cannot be charged as a principal offender under Section 376D IPC or Section 70 BNS as the provision presupposes male perpetrators.
• However, a woman can be held liable as an abettor under Section 109 IPC or Section 120B IPC (criminal conspiracy) if her actions demonstrate facilitation or conspiracy to commit the offence.
   

Judicial Precedents

• Priya Patel v. State of Madhya Pradesh (2006) 6 SCC 263: The Supreme Court held that a woman cannot be prosecuted for the offence of rape under Section 376 IPC as the statutory framework envisages only male perpetrators. However, a woman may be liable for abetment if her involvement satisfies the requirements of Section 109 IPC.
• Ramesh v. State of Maharashtra (2018) 12 SCC 68: The Court emphasized that group offences under Section 376D IPC necessitate a shared intention and concerted action, which must be evaluated on a case-by-case basis.
• Md. Jakir Hossain v. State of West Bengal (2022) 3 SCC 492: This case clarified that liability for gang rape extends to all participants in the common intention, irrespective of their specific roles, provided the actus reus and mens rea are established.

Analysis
The judicial reasoning in Sunita Pandey underscores the complexities of balancing legislative intent with the evolving demands of gender-neutral jurisprudence. While the exclusion of women from liability under Section 376D IPC reflects a historically protective approach, it also risks perpetuating gender stereotypes and undermining the principle of equality before the law.

By limiting a woman's liability to abetment or conspiracy, the judgment aligns with constitutional principles and established precedents but also highlights the need for legislative reforms to address ambiguities in the statutory language.

Conclusion
The case of Sunita Pandey vs. State of Uttar Pradesh & Others serves as a pivotal moment in the discourse on gender neutrality in criminal law. While the court's interpretation adheres to existing legal norms, it also exposes the inadequacies of the statutory framework in addressing the complexities of collective culpability.

To ensure a holistic and equitable legal regime, legislative amendments to Section 376D IPC and Section 70 BNS are imperative. These provisions must explicitly address the role of women in facilitating or participating in such offences, ensuring that the principles of justice, equality, and constitutional morality are upheld.