Print edition : November 21, 2003

At a demonstration organised by women's organisations to protest against the rising number of cases of sexual assaults, in New Delhi. -

The government's attempt to enact a law to mete out justice to victims of sexual assault falls far short of the demands of groups fighting for the cause.

IN March 1972, Mathura, a 16-year-old tribal girl from Chandrapur district, Maharashtra, was taken to the police station by her brother and other relatives as they were concerned that she was under age and yet was attempting to elope with her lover. The two policemen on duty said they wanted to record Mathura's statement when she was alone. They raped her, while her relatives waited outside. The Sessions Judge held that since she had earlier eloped with her boyfriend, she must have been habituated to sex, and, hence could not be raped. The High Court reversed the judgment, sentencing the policemen to six years in prison. In 1979, the Supreme Court again reversed the order. The judges felt that since Mathura had not raised any alarm, and since there were no visible injury marks on her body, she must have given her consent.

The Mathura rape case galvanised the women's movement into asking for reforms of the criminal law that dealt with rape. In 1983, the government passed the Criminal Law Amendment Act, which created a rebuttal presumption in cases related to custodial rape. The government also made amendments stipulating that the penalty for custodial rape should not be less than seven years' imprisonment; and it provided for in camera proceedings and made the disclosure of the victim's identity a punishable offence.

These amendments were not enough to stem the rise in the number of cases of sexual violence against women. One crucial defect in the law was the definition of rape under Section 375 of the Indian Penal Code (IPC), which took into account only penile-vaginal penetration. Other physical and mental injuries were left to be dealt with under Sections 354 and 509 of the IPC as `outraging the modesty of a woman'.

In 1997, Sakshi, an organisation involved in issues on women and children, approached the Supreme Court through a writ petition asking for directions concerning the definition of rape in the IPC. The Supreme Court then directed the Law Commission of India to respond to the issues raised in the petition. The Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying that the 156th Law Commission Report had dealt with these issues. The Supreme Court, however, agreed with Sakshi that the 156th Report did not deal with the precise issues raised in the writ petition. In August 1999, it directed the Law Commission to look into these issues afresh.

The Law Commission then prepared a draft of its comments and invited Sakshi to give its views on changes to the criminal law. Later, three other organisations, Interventions for Support, Healing and Awareness (IFSHA), the All India Democratic Women's Association (AIDWA), and the National Commission for Women (NCW) also presented their views on the matter. After detailed consultations with these organisations, the Law Commission released its 172nd Report on the Review of Rape Laws, in 2000.

The Law Commission recommended changing the focus from rape to `sexual assault', the definition of which goes beyond penile penetration to include penetration by any part of the body and objects, taking into account cunnilingus and fellatio.

The report recommended the deletion of Section 155(4) of the Indian Evidence Act, which would prevent a victim of rape from being cross-examined about her `general immoral character' and sexual history. It suggested graded sentences, with higher punishment for rape committed by the relatives and persons in `trust or authority', public servants, and superintendents, management and staff of hospitals. It introduced a new Section 376(E), which would include sexual harassment at the workplace.

The commission recommended shifting the burden of proof of consent to the accused. It suggested specific provisions that would deal with the medical examination of the victim as well as the accused by a registered medical practitioner. It said that girls who are victims of rape should be questioned only by a female police officer, in the absence of whom a qualified woman from a recognised social organisation should do the questioning.

The commission suggested that the law relating to sexual assault be made gender neutral, that is, men and women can be charged with the rape of men, women and children. This meant that for the first time the sexual assault of minor boys was made prosecutable under the law. It asked for Section 377 of the IPC to be dropped, thus decriminalising sodomy.

However, the recommendations did not take into account marital rape. It raised the age of consent of the wife from 15 to 16 years, after which the woman is not protected from rape by the husband. It also continues to provide a window for Judges to reduce the sentence in case of convictions below the minimum sentence specified, as suggested by the commission which states: "Any number of situations may arise, which the Commission cannot foresee that may necessitate the awarding of a lesser punishment."

Many women's rights, child rights and sexual minority groups, which were unhappy with the Law Commission's recommendations, met in Mumbai in 2001. Though they welcomed the expansion of the definition of sexual assault, the recognition of child sexual abuse, and the modifications to the Indian Evidence Act, they felt that the process involved was not consultative enough and that making rape laws gender neutral would lead to the misuse of the law, as rape was a gender-based crime. They also disapproved the fact that the recommendations did not take into account marital rape.

Women's groups in Delhi then began extensive discussions with AIDWA. Based on these discussions, Kirti Singh of AIDWA drafted an alternative Bill, which was then circulated. Meanwhile, the Women and Child Department (WCD) of the Central government, based on the recommendations of the 172nd Law Commission Report, began drafting a Criminal Law Amendment Bill or the Sexual Assault Bill. It held a meeting with a few women's groups in Delhi and representatives from some State governments, to discuss the draft Bill. Vrinda Grover, a lawyer present at the meeting, said that Delhi-based organisations asked the WCD to consult organisations all over the country, which worked on child rights, women's rights and the rights of sexual minorities.

So far this year, there have been 382 reported cases of rape in Delhi alone. The latest report of the National Crime Records Bureau (NCRB), published by the Union Ministry of Home Affairs, shows that the number of reported cases of rape nationally has increased from 15,151 in 1999 to 16,496, an increase of 6.6 per cent.

Based on the Law Commission's recommendations, the government enacted an amendment in the winter session of Parliament in 2002, which deleted Section 155(4) and inserted a proviso to Section 146 of the Indian Evidence Act, which means that a victim of rape can no longer be questioned about her past sexual conduct and her `general immoral character'. There has been no sign of the government implementing the rest of the Law Commission's recommendations.

Deputy Prime Minister L.K. Advani has on more than one occasion publicly declared that rapists should be given the death sentence. There is a broad consensus among women's groups that such a move would be counter-productive. According to a report on the study of rape laws released by the NCW in 2000, the rate of convictions for rape, already as low as 4 per cent, would decrease further if rape was made an offence punishable by death.

The Sexual Assault Bill seeks to reform only a small part of the wide-ranging reforms that the women's movement has been demanding since Mathura. Says Kalindi Deshpande, national treasurer of AIDWA: "The legal framework must be used to seek justice for women. We need to wait for the next Parliament session to mobilise lobby for a Bill on Sexual Assault." Vrinda Grover adds: "What we need is a more participatory process where groups working on the issue from all over the country are given a chance to make their submissions. But the fear is that the government will not take all this effort seriously and will come up with a distorted version."

For reform of rape laws to be effective, it has to be accompanied by a much wider range of actions to tackle patriarchal institutions including the judiciary and the Central and State Legislatures, which will have to pass the law. Ratna Kapur from the Centre of Feminist Legal Research (CFLR) asserts: "There has to much more of a rights-oriented approach. It is easy for everyone to support legal initiatives around sexual wrongs, but when you do not have simultaneous movement to support sexual rights, you will end up with a highly moralistic and protectionist piece of legislation."

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