Once the Criminal Law Ordinance 2013 was uploaded, circulated and read many times, an overwhelming desire to mark the ordinance to all one’s students as an example on how not to frame laws has grown. Yet, explain one must, why the current law on sexual assault is so bizarre, even if we do not bring in the so-called controversial elements and keep to the text of the ordinance.
The Criminal Law Ordinance 2013 begins with the definition of sexual assault as a gender-neutral offence. It does not make an exception to state that women do not rape men in everyday contexts under s. 375. Since such an exception is not added, and the ordinance specifies that ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault’, we are faced with a confounding and deeply misogynist legal consequence. Wives, we are told cannot prosecute husbands for sexually assaulting them. But since sexual assault is gender neutral without any exceptions and the marital rape exemption is not extended to husbands, now husbands can accuse wives of sexual assault but wives can never prosecute husbands for sexual assault!
To retain the marital rape exemption strikes at the heart of women’s bodily autonomy and integrity. However, to limit the exemption to wives, and allow husbands the legal remedy to file criminal complaints against their wives on the ground of sexual assault is absolutely absurd, if not totally misogynist.
The Justice Verma Committee (JVC) report had come up with a clear formulation of rape and sexual assault. Rape in everyday contexts was not gender-neutral viz., perpetrators. It specified perpetrators of rape as men, and identified victims as gender plural (any person irrespective of gender or sexual orientation). In the instance of sexual assault, gangrape and aggravated rape [under s. 376 (1) & (2)], were constructed as gender-neutral offences viz, perpetrators and victims. Furthermore, the marital rape exemption was deleted and it was recommended that marriage should neither be the basis for presuming consent nor should any third person than wife be allowed to lodge such a complaint (to address the misuse issue). In everyday contexts, especially in intimate relationships and marriages, this definition is sensitive to the power dynamics between men and women; while recognising that in prisons, police stations, custodial homes, hospitals, in fiduciary relationships and gang rape women may be perpetrators. It is critical to understand why this definition is important breakthrough in the debates on gender neutrality so far. This definition not only recognises the bodily autonomy of women but also recognises the bodily integrity of men (irrespective of sexual orientation or gendered identity) and transgendered persons. It does not split the victims into distinct categories based on identity and therefore avoids the medicalisation of sexual identity. Given the heated debates on gender neutrality, the JVC managed to define rape as a crime of patriarchy, which is not limited to women as victims, although women have predominantly the target of sexual violence.
Some may argue that this definition still leaves out certain forms of violence, which find place in intimacy of a same sex relationship, or essentialises women. But remember, the JVC does not recommend the deletion of s. 377 IPC, nor do other forms of criminalisation of same sex relationships find redress. For instance, Modi (2011) describes lesbianism as tribadism and says “lesbian women can be so morbidly jealous of such woman with who they are inverted in love, that they are sometimes incited to commit even murder” (Modi 2011:684). These are statements of prejudice, which construct lesbians as a “criminal type”. And these find no redress.
The Criminal Law Ordinance 2013 also juxtaposes gender neutrality with the retention of s. 377 IPC. To retain unnatural sexual offences in the IPC means to blur the distinction between consent and lack of consent, to validate the damning judicial discourse on sodomy and validate heterosexist bias against sexual minorities. Not to include the repeal of s. 377 in the ordinance, just because the JVC does not do so, and even though the 172nd Law Commission recommended such a deletion in 2000 is a scandal. It is unintelligible since s. 377 IPC characterises sexual assault as unnatural sex and does not allow any person to consent to “unnatural” sex. If the prime concern is with expanding the definition of consent; and ensuring bodily autonomy or providing protection from sexual assault to all persons, naming the experience of sexual violence as unnatural sex, or calling consensual sex, unnatural is illogical, if not ideologically violent.
Further, sexual assault is defined without any gradation of different offences, in terms of severity of violence or the nature of violence. Section 375 (a-c) defines as sexual assault as the penetration of bodily parts or other objects into bodily orifices without consent. Section 375 (d) holds that a person commits sexual assault if s/he ‘applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person’ without consent. Section 375 (e) holds that when any person ‘touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person’ without consent, it amounts to sexual assault [note that the cut and paste job, evident from the word “he” to designate the perpetrator]. These are all forms of sexual assault “except where such penetration or touching is carried out for proper hygienic or medical purposes”.
The use of the word hygienic is totally mysterious, and dangerous—since it allows a crafty defence lawyer to convert the experience of sexual assault into a sanitized lesson in hygiene. Further, to allow penetration for medical purposes and not even minimally mention that a doctor must take the informed consent of the person prior to penetrating or touching is violative of elementary medical ethics. Nor does the ordinance delete the two-finger test. Therefore what it does is, it permits the insertion of two fingers in the survivor’s anus or vagina for medical purposes without seeking the consent of the survivor, which even Modi’s first volume on medical jurisprudence and toxicology would not advocate. The JVC recommends the prohibition on the two-finger test and introduces a whole new chapter on what kind of medical protocol should be introduced to deal with rape survivors sensitively. Rather than moving towards a therapeutic jurisprudence, the ordinance re-inscribes the two-finger as a medical procedure, disregarding what Modi says in the early days of colonial medicine, that a doctor should never insert two fingers in the vagina without consent lest he be accused of sexual assault!
To unravel the costs of cut and paste jurisprudence, we must note that the consequences of clubbing together different forms of sexual assault in the same sentencing structure. Hypothetically speaking, if a person is convicted of an offence under section 375 (e) which holds that when any person ‘touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person’ without consent twice, then such a person could be sentenced to life (natural life) or even death. Assuming such an accused is tried by a “hanging” judge, you have a situation where there is no gradation made between different kinds of sexual assault in relation to severity and nature, viz., sentencing. What is to prevent more severe punishment to a hijra, found to be a repeat offender, given the colonial legacy of charactering certain kinds of bodies as “criminal types”? There are no provisions to provide fair treatment to, and prevent stereotyping of sexual minorities or women in the sentencing structure.
The only instance where such gradation viz., sentencing is maintained is in relation to marital rape. Hence, section 376B IPC holds that ‘whoever commits sexual assault on his own wife, … shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine’. The ordinance is clearly protection of husbands, even those husbands who rape their ex-wives. This is also evident in the section,describing repeat offenders, which clearly excludes husbands.
Section 376E holds ‘whoever has been previously convicted of an offence punishable under section 376 or section 376 A or section 376 C or section 376 D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life or with death’. So the ordinance is clear that whoever else may get life imprisonment till s/he dies in prison or is hanged by the state, a husband should never be jailed for life or hanged. But the irony is, if a man accuses his wife of sexual assault, and if she is found to be a repeat offender by a court, she is liable to life or death penalty. One may argue that this is far fetched for why would a woman live with a man who has accused her of sexual assault but technically what this ordinance does, it makes wives vulnerable to sexual assault charges by their husbands and exposes them to prison sentences, if not death.
The cut and paste job gets even more bizarre for the JVC recommendations are added to s. 354 IPC rather than displacing the colonial law on outraging modesty. Section 354 (a) describes sexual harassment (gender neutral offence), section 354 (b) describes any person forcibly disrobing a woman, section 354 (c) describes voyeurism (victim is woman here) and section 354 (d) describes stalking (gender neutral). And section 509 IPC, which should be made redundant is retained.
It does not make sense to retain the idea that something amounts to violence only when the modesty of women is outraged, and not the bodily integrity of all women, irrespective of modesty. This is the point behind deleting the past sexual history clause and fighting against the characterisation of survivors as habitués: please do not judge women by whether or not they are modest. What we wear, who we sleep with, where we go, what work we do—is not relevant to proving sexual assault.
And then mistakes of an exhausted and overwrought JVC find their way into the ordinance, yet another cut and paste jurisprudential disaster. In s. 370, which describes trafficking, we are told that:
“The expression “exploitation” shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs.”
The JVC possibly forgot to add the words “exploitation of” prostitution, while mistakenly dictating the UN protocol 2000, going against the UN Protocol signed in 2011. The trafficking clause, due to exhausted dictating, criminalises all forms of sex work, including in trafficking voluntary and consenting sex workers who are now unionised and been fighting for right to live with dignity. This provision has been enacted in the name of fighting sexual assault—and is totally unacceptable. Perhaps the JVC should issue an erratum—and re-publish its 650 pages after careful proof reading!
What may one say about the absences—those are too many to list! We wanted radical jurisprudence, to emerge from our protests and unending hard work (and unlike others, we don’t need anyone to applaud us). Instead, what we got is a mortifying cut and paste jurisprudential disaster. We cannot sleep tonight, wonder how the Ministry of Law finds sleep tonight!
Pratiksha Baxi is Assistant Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University. This first appeared at Kafila
Laws drafted by the British, including the Indian Penal Code, have stood the test of time. Hastily drafted legislation can do more harm than good.
Hastily drafted legislation can do more harm than good.
Yeah, The anti dowry law is one example. It is not an equitable law. Many families and innocents have been black mailed and put behind bars by crooked brides' families invoking this one sided law.
To buy peace and appease the pressure groups laws are enacted based on emotions rather than hard reasoning only to make the hurriedly enacted law become a tool of harassment for the crooks and manipulators.
Law shall never become a tool of harassment in the hands of crooked to settle their personal scores. Unfortunately, our country is heading in that direction.
Imagine a situation of a complaint of marital rape by a wife. A woman can easily threaten her husband when faced with the prospect of taking care of her in laws and she can blackmail her husband quite easily with such a law operating. It is gross mistake if one considers that all men ought to be bad and all women are poor things victims of domestic violence. It is both ways. Good men and bad women and vice versa always exist. Law shall always be equitable and gender neutral.
Sandilya ..... agree. In most of the what is called the developed world - the progress of law and evolution/modernization of society has a symbiotic relationship - society moves ahead; pushes the law - law moves lightly ahead; pushes society.
We unfortunately, don't have that - in some cases we have our society way behind and law way ahead; some cases society way ahead and law way behind. When the implementation of Law is as bad as it for us, every imaginable weirdity will happen too. Those who have no compuctions to manipulate, twist and turn it, will take advantage.
Net-net I believe we suffer from too many laws (many inconsistencies, many ill thought thru) and too poor an implementation. Not really understand the details and nuances, the rush with which Ordinance was pushed, would suggest a great chance of poor law making.
Thank you Arun. I am only surprised about Justice Verma who in his report has included marital rape under the broad brush of rape. I begin to wonder about this judge's vaunted claim to judicial wisdom. Marital rape as covered in the IPC under domestic violence is said to be enough.
Though I do not like many things the UPA govt does, I must say it deserves credit for being careful enough not to include marital rape in the ordinance. It is another matter that the anchors of all TV channels tried their best to project this as a gross failure on the part of govt. What an immature bunch of journalists we have who so crudely pitch in sales promotion of their channels by emoting the public.
With such a law in force, no family can live in peace and for that matter half the population will be going to courts and police stations and imagine the resultant clogging and paralysis of systems.
Actually all that we need is to develop and strengthen the forensic investigative systems, systematic surveillance, installation of video cameras at important points and training of police force more than mere enactment of law.Once conviction is secured , a quick and tough punishment should follow - not like Afzal Guru case- for a lasting effect on potential wrong doers. Amendments to law can be to that effect.
As such we have plethora of laws and rules that have left our administration to go into sclerosis. More rules and laws can only confuse and contradict to further derange the system than do any good. It is so moronic to think that a piece of legislation will automatically correct and deter potential rapists.
This excessive coverage of rape related issue is at the best seasonal flavour after the fatigued issue of corruption and Lok Pal. Some how I am getting convinced that we, the Indians, really lack scientific temperament and problem solving skills and try to overcome the problem through short cuts than lasting solutions like doing yagnas for rains than develop system for ensuring perennial water supply.
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