In defence of women

Girija Vyas, Chairperson of the National Commission for Women, addressing the media at Parliament House in August following a gang rape on a bus in Najafgarh. - SHANKER CHAKRAVARTY

A new Bill proposes amendments to the existing laws to widen the scope of the definition of rape and to deal with other forms of sexual assault on women and minors.

IN 1996, the minor daughter of a government employee was molested by her father and his friends. The incident evoked public outrage and drew the attention of women's organisations, lawyers' groups and concerned individuals to the need for a system to deal with child molestation and child rape, but nothing much happened in the case. It was not rape, the court averred, as there was no "penile-vaginal" penetration. The culprits were punished under Section 354 of the Indian Penal Code (IPC), which provided for a maximum punishment of two years.

Laws relating to rape and sexual assault have remained more or less unchanged since the introduction of the IPC in 1860. It was only in 1983 that some amendments to the rape law was made. Now, for the first time, a comprehensive piece of legislation covering almost every aspect of sexual assault against women and minors has been drafted at the initiative of the All India Democratic Women's Association (AIDWA). It is called the Criminal Law Amendment Bill. It is based on the 172nd report of the Law Commission to amend laws relating to sexual assault in Sections 375, 376, 354 and 509 of the IPC, the relevant sections of the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act. When it becomes law, the legislation will be called the Criminal Law Amendment Act, 2000.

The Bill recommends changes in the CrPC and the Evidence Act in order to make the procedures fair and sensitive to victims of sexual assault, including minors. The National Commission for Women (NCW) has backed this legislation. At a two-day national consultation organised by the NCW, the draft Bill was discussed in detail in the presence of women activists, lawyers and senior police officers from various States.

Broadly based on two Bills, one framed by the Law Commission in its 172nd Report, 2000, and the other drafted by a sub-committee of the NCW in 1992, the Bill drafted by Kirti Singh, president of the Delhi unit of the AIDWA, seeks to redress almost all the weaknesses in the present law. Women's organisations have found from experience that the existing laws neither define nor reflect all kinds of sexual assault undergone by women. There is a standard notion of rape - the penetrative one - while other forms of penetration by other parts of the body as well as by objects have never come under the ambit of sexual assault. Neither has protracted sexual assault or incest been addressed adequately. Recognising these lacunae, the Supreme Court in Sakshi versus Union of India had suggested that the legislature bring about the required changes. Subsequently, the apex court directed the Law Commission to examine the law and suggest changes.

The draft Bill seeks to do away with outdated notions of "outraging the modesty" of women, embodied in some sections dealing with molestation and eve-teasing. Supreme Court advocate Kirti Singh, also an advocate of the Supreme Court, said that the Bill was a complete overhaul of the IPC sections concerned. The 1983 amendments did not question the patriarchal definition of rape. Talking to Frontline, she said that the piece of legislation sought to incorporate the notion of rape as experienced by women themselves, and not what a man perceived rape to be. Every aspect, be it penetrative sexual assault or non-penetrative sexual assault as applicable to every possible category of victim and even marital rape, has been covered in the Bill. It is a progressive piece of legislation with extensive procedural amendments applicable to every kind of sexual assault. The Bill is particularly sensitive to sexual assaults on minors.

THE definition of rape under Section 375 has been enlarged, incorporating international legal standards. The offence is now called sexual assault rather than rape, at the suggestion of the Law Commission and the NCW sub-committee. However, the Bill drafted by AIDWA has a more nuanced approach to sexual assault, defining it as an offence committed by a man against a woman, rather than making it gender-neutral. It also distinguishes this from child sexual assault, which can be committed on a child of either sex by a man or a woman. Sub-sections within Section 375 deal in detail with forms of sexual assault on women as well as minors.

Significantly, the Bill redefines consent whereby the absence of resistance cannot be deemed as consent. Consent is only the unequivocal voluntary agreement by a person to engage in sexual activity. This is important because under the existing law, if a woman alleging rape does not have any injuries on her person, she is often disbelieved and the absence of her consent is not considered at all. Also, while raising the age of consent to 18 years, the Bill makes the provision that consent would be a valid defence if the complainant was between 16 and 18 years and the accused not more than five years older. The Bill, therefore, recognises the prevalence of consensual sexual activity between young people.

The Bill recognises new categories of aggravated sexual assault, in addition to the already existing ones on custodial rape introduced in 1983. Under the existing law, punishment for the general category of rape is a minimum of seven years in jail and 10 years for custodial/aggravated rapes. The Bill now provides for cases of sexual assault on a minor below 16 years, on a pregnant woman, and on a person afflicted with mental or physical disability. Also included is sexual assault by a person in a position of economic, political or social dominance and aggravated sexual assault of a persistent nature that has the potential to cause bodily harm.

One other important and somewhat debatable aspect is that the Bill proposes to take away from the courts the power of discretion to award less than the statutory minimum punishment. The Bill calls this a "seemingly harsh amendment", but considers it necessary in the context of courts awarding much less than the statutory minimum punishment for reasons that the women's movement has found unjustifiable. And there have been cases where no reasons were cited at all when courts awarded light sentences. During discussions on the Bill at the NCW convention, there seemed to be no overwhelming support for the death penalty for those accused of sexual assault.

The Bill also deals with marital rape and proposes punishment for rape within marriage. It proposes the deletion of Section 354 of the IPC dealing with molestation, on the grounds that it does not make a distinction between an adult and a minor. Instead, it has suggested introducing Section 376 D to deal with all possible ramifications of unlawful sexual conduct. The Bill holds that molesting a minor and an adult are two different crimes and the punishment accordingly should be different.

Instead of the definition of molestation as "sexual assault committed with the intention of outraging the modesty of a woman" in Section 354, the Bill defines molestation as "touching with a sexual purpose and without the consent of the woman". A higher punishment has been recommended for molestation of minors by people who may be de jure or de facto guardians of the victims.

Similarly, the Bill redefines Section 509 which deals with sexual harassment. As in molestation, sexual harassment is now punishable only when it is done with the intention of outraging the modesty of a woman. The Bill states that words and gestures made with a sexual purpose are punishable and that sub-sections under the redefined Section 509 would deal with such offences committed against minors as well.

Asha Sinha, Inspector-General of Police, CID, Jharkhand, said that one reason for the non-registration of cases of sexual assault was the insensitivity of both the police and the public. She explained that sexual assault was seen as a social crime and so successful handling of such cases was not usually seen as a reflection of policemen's performance. The police in Jharkhand recently started a grievance cell and she recommended fast-track courts and compensation for each category of violence against women.

It was learnt that Union Home Minister Shivraj Patil, who was present on the first day of the convention, expressed his appreciation of the comprehensiveness of the Bill, which is expected to be tabled during the winter session.

Almost 10 years have passed since the infamous Jhaku case, as the 1996 incident came to be known, but assaults against minors continue unabated. An analysis of the rapes committed over the past decade shows that 30 per cent of the crimes have been committed against minors.

Statistics of the National Crime Records Bureau show that in 2003, there were more than 15,000 cases of rape and 32,000 cases of molestation. There is reason to believe that many crimes against women, including rape, do not get reported or registered because of the stigma that the victims could attract. Many cases do not reach the trial stage for lack of evidence.

The proposed amendments are expected not only to increase the reporting of sexual assaults, but also to facilitate speedy trials and convictions. While women's groups are aware that law by itself may not be able to bring about the required drop in the rate of crimes against women, they hope that the amendments, if passed by Parliament, will go a long way in challenging social stereotypes.