THE draft Criminal Law (Amendment) Bill, 2010, or Sexual Assault Bill, of the Union Home Ministry, which is under discussion, owes its genesis to the relentless campaign by a handful of organisations and people for a review of the archaic rape laws. Kirti Singh, an advocate of the Supreme Court and a former member of the Law Commission, is one of those whose efforts over the past three decades have ensured the emergence of the Bill. She was also the convener of the subcommittee set up by the National Commission on Women (NCW) to recommend changes to sections of the Indian Penal Code (IPC) dealing with rape.
As legal convener of the All India Democratic Women's Association (AIDWA), she presented the organisation's views to the Law Commission. In an interview to Frontline, Kirti Singh explained what the draft legislation should include. Excerpts:
For some time now, women's organisations have been demanding comprehensive changes to laws relating to rape, molestation and sexual harassment. It has been a fairly long journey, and a draft Bill is finally on the table. Could you comment on the evolution of the Bill?
The process started in 1992 when a sub-committee was formed by the National Commission for Women following a convention on child rape. This committee examined the law relating to rape in Section 375 of the Indian Penal Code, molestation in Section 354 and the law relating to sexual harassment, popularly known as eve-teasing, in Section 509. These relevant sections are still applicable to sexual assaults and harassment against women.
The committee deliberated on this issue for about six months to begin with. A number of child rights and women's groups, including AIDWA, were represented on the NCW's subcommittee. It was felt that the IPC needed to be overhauled as far as these sections were concerned as it was found that the law had its limitations subject to interpretations by the court and others. The committee had the experience of dealing with several kinds of rape cases after the amendments in 1983 and it suggested that the entire concept of rape was based on penile-vaginal penetration and this did not take into account other forms of penetrative sexual assault, which could be as humiliating and traumatic for the victim.
Rape, as defined in the IPC, was an archaic, patriarchal definition. It was necessary to look at sexual assault from the point of view of the woman who experienced it and to craft that experience into law. The definition of rape should be changed, it was felt. First of all, the term itself was inappropriate and loaded with a certain baggage and needed to be redefined as sexual assault. This would imply that it was an act of violence affecting the bodily integrity of a woman and her sexual autonomy, and violating her right to life. This is to say that a woman should have complete control over her body.
We defined sexual assault under two parts as penetrative sexual assault and, the other, by touching, popularly known as molestation. Penetrative sexual assault was defined as penetration by the penis into the vagina, mouth and anal cavity and this included inserting parts of the body and objects too into such orifices. This is in accordance with the international definition of rape and with international legal standards in the framework of the International Criminal Tribunal [ICT], Yugoslavia, and ICT, Rwanda. So we first enlarged the definition. This finds resonance in the Bill drafted by AIDWA and the government Bill. The government's Bill needs amendments as it does not have a properly drafted definition.
Secondly, the law on molestation was also changed. We did away with the existing Victorian definition in the IPC of describing molestation as sexual assault with the intention of outraging the modesty' of a woman. The subcommittee and the present Bill redrafted by AIDWA state that sexual assault is said to have been committed by any person who touches directly or indirectly, or with an object, any part of the body of a person. There are different kinds and degrees of sexual assault.
Does the government's draft Bill do justice to the recommendations made by the subcommittee, the Bill redrafted by AIDWA, and the Law Commission?
The subcommittee had recommended that consent should be explicitly defined to mean unequivocal, voluntary agreement to the act to ensure that a woman who remained passive for a variety of reasons could not be said to have consented to the act. One of the major recommendations of the subcommittee and the Bill redrafted by AIDWA was to expand the categories of sexual assault. Some of these categories had already been inserted in 1983 to deal with custodial rape cases. The subcommittee recommended that sexual assault committed by armed forces and paramilitary forces personnel should also come under aggravated forms of sexual assault, and punishment prescribed accordingly. In 1983, changes were also made in the Indian Evidence Act. Once the factum of sexual intercourse is established, then the burden of proof would shift to the defence this was a very important change in Indian criminal law. In the case of a minor, there was of course no question of consent.
Does the government Bill deal adequately with aggravated sexual assault on adults and children and does it make the distinction?
We submitted our recommendations to the NCW and, thereafter, two of the organisations involved in the subcommittee filed a case in the Supreme Court in a child rape case asking for inclusion in the definition of rape forced oral and anal intercourse and the broadening of its definition on the lines I've indicated. But the Supreme Court declined to interpret rape in that manner and referred the matter to the Law Commission.
The Law Commission consulted Sakshi, IFSHA [Intervention for Support Healing and Awareness], AIDWA and the subcommittee and made recommendations. The subcommittee had suggested deletion of Section 377, which targeted consensual sex between two adults. The Law Commission also agreed with this. It was also decided that the law should be gender specific for adults, but for children, it should be gender neutral as both adult men and women can be made liable for the offence of sexual assault. Our Bill made this distinction we felt this was necessary. The definition of penetrative and non-penetrative sexual assault against a minor needed another section as minors are often manipulated and coerced to perform sexual acts on the offenders. The AIDWA Bill and the NCW Bill felt that making a minor view pornography and sexual acts should also be an offence. It is essential that no direct cross-examination should be done of a minor, and part of our recommendations have been included in the Bill.
Another important amendment is that immediately after a sexual assault is detected, there should be mandatory and compulsory counselling of the child by a trained doctor and immediate medical attention be given. The child should be questioned by a woman police officer or in the absence of such an officer, by a social worker in the presence of family and friends.
AIDWA and other women's groups had also suggested to the government that if sexual assault is committed on people with disability or on members of a minority community at the time of communal violence, such violence should also be considered as aggravated. But this has not been done. This category of aggravated sexual assault should be applied to both penetrative and non-penetrative sexual assault the punishments, of course, would be different for different kinds of sexual assault.
We also said that if a person in a position of social, economic and political dominance commits sexual assault, this should also be treated as an aggravated form of sexual assault. This would include sexual assault committed by members of a higher caste on those of a lower caste; by, say, a landlord in a village on a worker or an employer on his employee.
Such assaults take place by virtue of the position of the assaulter who takes advantage of his social and economic position. The subcommittee and others felt that if, while committing sexual assault, grievous bodily harm is caused, it should come under aggravated sexual assault. Also, protracted and persistent sexual assault such as repeated rapes and molestation should all come under the aggravated category.
The draft Bill has been put in the public domain for comments. AIDWA and other organisations have already sent in their feedback. What do you think should be the next step?
The process started with the subcommittee and subsequently the NCW had several rounds of discussions with representatives from the States. A national workshop was held in 2005 at which the Home Minister gave a positive response. Nothing happened. AIDWA and other groups have been following up with the government to change the law relating to sexual assault. Finally, we have this Bill.
Unfortunately, the response of the government has been a knee-jerk reaction to the Rathore case rather than a response to the well-considered proposals and detailed recommendations that were available to it. The result is that the 2010 Bill is not comprehensive; it deals with the amendments in a piecemeal fashion. For instance, though it suggests changes in the law for child sexual assault and molestation, it does not address a change in the definition for molestation of women. It is badly drafted.
The Bill will have to be reconsidered and I would like to see all the amendments suggested over the past 20 years and any new ones, too, considered. I would like to share the information that Brinda Karat, Rajya Sabha member, has moved a private member's Bill suggesting comprehensive changes to the law on sexual assault on the lines of the AIDWA Bill.
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