Wanted: A fairer law
BY MANOJ MITTA IN TIMES OF INDIA CREST EDITION
How could a woman of easy virtue claim to have been raped? The policemen accused of raping a tribal woman were let off on that reasoning. It took such a miscarriage of justice by the Supreme Court in the 1978 Mathura rape case to trigger a nationwide campaign against anti-woman laws. Many changes have since been made in the statute book, including the provisions relating to rape. Manoj Mitta looks at some of the more important gender law reforms that are overdue…
RESERVATION FOR WOMEN IN ASSEMBLIES AND PARLIAMENT
Despite misgivings of tokenism, the 1993 measure of reserving one third of the seats for women in the third tier of the Indian democracy – Panchayati Raj and Nagar Palika – has proved successful in empowering the targeted group. But all attempts to extend the same principle to state legislative assemblies and Parliament have come to naught because of resistance, overt or covert, from various political parties. However, the latest attempt made in 2008 seems promising, not the least because the Bill was introduced for the first time in the Rajya Sabha and, therefore, did not lapse when there were elections to the Lok Sabha the following year. One sticky issue that has remained is that the proposed rotation of reserved constituencies in every election may reduce the incentive for an MP to work for his constituency as he may be ineligible to seek re-election from there.
COMPULSORY REGISTRATION OF MARRIAGES
In a bid to prevent child marriages, polygamy and desertions, the Supreme Court declared in 2006 that it was compulsory for all marriages to be registered. But when it reviewed the implementation of its verdict the following year, the apex court found that only some of the states had framed the necessary rules for compulsory registration of marriages. It was also noticed that those fresh rules were made only in respect of Hindus. None of the states dared touch the Muslim law, partly because it apparently permits polygamy and partly because the Supreme Court judgment was liable to be misconstrued by minorities as an attempt to force a uniform civil code through the backdoor. The Hindu law was perceived to be more amenable to this reform as it already provides registration of marriage as an option.
ACCEPT IRRETRIEVABLE BREAKDOWN OF MARRIAGE
While divorce by mutual consent or no-fault divorce was introduced way back in 1976, no government has so far mustered the will to enact the next logical reform. Namely, to empower the courts to grant divorce even when one of the two parties is opposed to it and none of the prescribed grounds for divorce could be established. The Supreme Court has repeatedly called for the introduction of “irretrievable breakdown of marriage” so that the judiciary in India, as its counterparts in advanced countries, is empowered to grant divorce on coming to the conclusion that the marriage was beyond repair.
RESTRICT THE FREEDOM TO BEQUEATH ONE’S PROPERTY
The unfettered freedom among Hindus to bequeath their self-acquired properties to any person(s) of their choice has often worked against the interests of their female legal heirs, especially daughters. Experts have suggested that a Hindu should have the discretion to bequeath by a will only up to two-thirds of his properties. The remaining one-third of his estate should be governed by the succession law, which has been reformed in recent years to include daughters among legal heirs.
CHECKING ABUSE OF DOWRY LAW
The abuse of Section 498A IPC is as patent as the need to confer such protection on the wife from the cruelty of the husband or his relatives for dowry or otherwise. There is clearly a need to amend this law, if nothing else because women too (mothers-in-law or sisters-in-law )are often casualties of its abuse. In a bid to save this well intentioned provision from the odium of being a cover for blackmail, the courts have repeatedly directed that the police should not resort to arrests till they complete their investigation and file a charge sheet.
ALLOWING WOMEN TO COMPLAIN AGAINST ADULTEROUS HUSBAND
In one of its most anti-feminist provisions, the Indian Penal Code 1860 defines adultery as an offence that is actionable only between the adulterer and the aggrieved husband. But if the husband commits adultery, the wife cannot seek action against him and his sexual partner. The husband can get into trouble only if his sexual partner happens to be married and, then too, only from her husband. Surprisingly, the Supreme Court upheld this iniquitous provision in 1985 on the ground that it was dealing with “a wrong against the sanctity of the matrimonial home”. But the Law Commission and the Malimath Committee on criminal justice reforms proposed that the adultery provision be made gender-neutral.
WIDENING THE SCOPE OF RAPE
For all the possible ways in which this extremely violent offence is committed, the definition of rape, provided in Section 375 of the Indian Penal Code 1860, hangs by a narrow thread. While “sexual intercourse” is a necessary condition, “penetration” is stipulated as a sufficient condition. This means that, however much he might have sexually assaulted the victim, the offence of rape is not made out unless the crime involved “penile-vaginal penetration”. The Law Commission, therefore, suggested a fresh definition, which makes it clear that penetration could be of vagina, anus or urethra, with any part of the body of another person or object manipulated by another person. It also seeks to include oral sex and manipulation of any part of the body with sexual intent.
CRIMINALISING MARITAL RAPE
One leftover of the old notion that the wife is the husband’s property is the absence of any recognition of the fact that she could be raped even within the institution of marriage. Mercifully, the one circumstance in which marital rape is acknowledged by law is when the wife is less than 15 years old. Even so, she will have to lodge the complaint within a year and then the husband, upon conviction, would get a maximum sentence of two years. This is a far cry from the minimum stipulated sentence of seven years for rape. Though child wives do need greater protection, there is no justification for the presumption that, unlike their counterparts in western countries, Indian wives above the age of 15 can never be raped by their husbands. The closest the law has come to recognising this crime is in the context of the 2005 Domestic Violence Act, which created a civil remedy for such victims even as it refrained from criminalising marital rape.
ENACT A LAW ON SEXUAL HARASSMENT
The Victorian vintage provisions dealing with “outraging the modesty” of a woman (Section 354 IPC) and “insulting the modesty” of a woman (Section 509) are clearly out of date. The notion of regarding a woman in terms of her “modesty” does not fit in with a world where she competes with men on equal terms. The Supreme Court sought to redress this anomaly in its landmark Vishakha verdict in 1997, when it laid down guidelines for dealing with sexual harassment at work place. This temporary measure, meant to be replaced by legislation, has proved ineffective as it depends on the responsibility of employers to create a remedial mechanism. So, one option before Parliament is to enact a special law on the lines of the court guidelines. Another option is to amend the Indian Penal Code as suggested by the Law Commission in 2000. The panel recommended replacing the ‘outraging the modesty’ clause with one dealing with “unlawful sexual contact”, which would cover touching the body of any person other than one’s spouse “with sexual intent and without the consent” of such person.
HIGHER PENALTY FOR MOLESTATION OF CHILDREN
The Ruchika Girhotra case of last year has served to highlight a lacuna in the Indian law which, contrary to a progressive global trend, does not contain any special provision for child victims of sexual molestation. While there are special provisions in Section 376 IPC for child victims of rape, where the minimum punishment is 10 years jail as against the norm of seven years, Section 354 IPC, covering all forms of non-consensual contact other than rape, makes no such distinction between adult and child victims. Hence, the “unlawful sexual contact” provision suggested by the Law Commission is designed to enhance the penalty for child abusers to seven years from the present level of two years for any molester.
PENALISE CLIENTS OF PROSTITUTES
The strict restrictions imposed by the Immoral Traffic (Prevention) Act on where and how prostitution could be practiced resulted in action being taken most of the time against the victims themselves. An amendment Bill introduced by the Manmohan Singh government in the earlier Lok Sabha in 2006 seemed to be a step in the right direction. But after it lapsed in 2009, with the dissolution of that Lok Sabha, UPA II has not so far revived the proposal of reforming the trafficking law. The reforms included deletion of the provisions that penalised prostitutes for soliciting clients. Instead, the 2006 Bill for the first time sought to punish any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. The provision to penalise clients of prostitutes has, however, raised apprehensions that it could drive the flesh trade underground and thereby block legal channels of support to victims of trafficking.