March 29, 2020
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Throw The Book At ’Em

The IPC has clauses for most forms of violence against women—except for marital rape

Throw The Book At ’Em
Throw The Book At ’Em

Even before the 24/7 media started getting all righteous, the legislature had enacted and amended tough laws on crimes against women, including rape. The Indian Penal Code today covers every possible physical crime on the feminine body. To make rape trials less traumatic, the SC has ruled, repeatedly, that the female victim’s testimony doesn’t need independent corroboration. She also cannot be named (it entails two years’ jail plus fine). The trial must be in-camera and heard, when possible, by women judges.

In the 1990s, six sections were included in the ‘rape’ category (Section 375). Today, a woman in custody, raped by a man in a dominant position, a gangrape that ends in her death, sexual activity “outside the order of nature” (Sec 377)—nothing is really beyond the law. Then there are the fast-track courts, crimes against women cells at police stations, and medical advances, including DNA tests, all of them meant to aid speedy justice.

Yet, the outrage in the ‘Jagruti’ case has fuelled TV anchors and many protesters to cry for the death penalty for rape. Their argument that Sec 376 and Sec 377 (unnatural sexual acts) aren’t tough enough (with a maximum penalty of a life term) lends weight to another government bill (Criminal Law Amendment Bill 2012), itself based on a Law Commission report and SC order (Sakshi vs Union of India).

The new Bill gives ‘rape’ an even wider definition and proposes to substitute, in the IPC, ‘rape’, a specific crime against women, with the generic words ‘sexual assault’. The latter will include using any object for penetration, not just penile-vaginal intercourse as given in Section 375.

Rapists don’t hang in India. This isn’t because the legislature is ‘soft’ or ‘weak’ but a reasoning that if murder and rape are similarly punished, the accused may take it that killing the woman would not make things any worse for him.

Yet, a gender-neutral Bill raises more questions than answers. Legal scholar and teacher Upendra Baxi says “the problem of penile penetration being the sole criteria for rape can be sorted out by a simple amendment to the IPC. Gender-neutral sexual assault, though, is an interesting debate—but it’s at odds with the fact that women are much more vulnerable to sexual abuse, and not vulnerable in the same way as men”.

The Criminal Law Amendment Bill has come into difficulties, with civil society and the legal fraternity divided into camps, supporting or opposing it. Opponents say the police will struggle with the “gender-neutral” concept for a long time. For all its talk of gender-neutrality and sexual crimes committed against women, neither the new bill, nor the Law Commission, nor the IPC strictly enforces a case of rape of a wife by her husband, even if the couple is estranged.

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