The Critique (Comments Dated 24.01.2013)
My critique of the amendment proposed in the IPC in the Justice Verma Committee report (download here) vide Appendix 4 of the report are as follows:
- Sec 100 : S 326A is not only grievous hurt; “which shall include” creates confusion about the intention of the legislature. The courts may misinterpret the provision to allow this defense even in those cases where no case for the apprehension of grievous hurt is made out.
- Sec 166A: Five year punishment is draconian.
- Sec 166A (c): “Record” needs clarification. Is it only an entry in the book as specified or a recording in any other form will also do?
- Sec 354: The five years rigorous punishment for touching inappropriately is draconian and grossly impractical. People will stop traveling in public transport.
- Sec 354A: No rigorous punishment for attempt to disrobe a woman in public place. No separate offense for actually disrobing a woman. No separate offense for creating videos or in any other manner recording the act of disrobing a woman. No separate offense for publishing the records so created. No separate offense for disrobing, attempt to disrobe, creating records, or publishing record with respect to a man.
- Sec 354B (explanation): Is viewing an offense or is dissemination an offense?
- Sec 354B: No separate offense for creating records without consent. No separate offense for dissemination/publication of records so created. No separate offense with respect to sexual acts of men.
- Sec 354C(1): The word “monitors” is very wide. Does it include even monitoring without use of any intruding programs; i.e., without any hacking?
- Sec 354C(1)(iii): What is “reasonable”? Is spying by recruitment agencies or recruiters reasonable?
Sec 370 (7) & S. 376D and S. 376E: Does “rest of that person’s natural life” means overriding section 55 IPC? - Sec 375: Can consent be for a particular act but not for another act in the same transaction? Can consent be in writing for a specified period for all or some acts? The differentiation between sexual assault and rape, as proposed, is important and welcome. Why no gender neutrality? Women can at least enter into fellatio without consent (as defined in the section or even otherwise) and even penetrate anus without consent.
- S 376(3) and S. 376B(2) and S 376C: Does “rest of that person’s natural life” means overriding section 55 IPC? If not, then there is a serious contradiction as section 55 will not apply to 20 years punishment.
Bad Feminism (Comments Dated 25.01.2013)
Making all offenses against women cognizable and non-bailable is draconian and arbitrary. It will give arbitrary powers to the police, esp in minor offenses of voyeurism, stalking, and minor sexual assaults. Furthermore, all the offenses have been made non-compoundable. Many of these offenses can be made compoundable, either with the permission of the court or without.
There are mainly three viewpoints in feminism: the radical view, the liberal view and the socialist view. The amendments proposed in the IPC in the report are greatly influenced by radical feminism, which is negative. The radical feminism per se is regressive and violent. It is the female version of right-wing extremism. The report is not even comprehensive in dealing with the offenses with respect to sexual privacy.
However, my biggest problem is the reverse gender bias. Disrobing, voyeurism, rape, etc, are gender neutral offenses. Not making the laws gender neutral propagates the view that women are inherently shy, and that the law should protect their modesty. This is an irrational view, majorly responsible for the subordination of women. The proposed amendments propagate this view even further.
I feel there is a strong corporate influence in the preparation of this report. The corporate conduct their affairs most arbitrarily without understanding the concept of equality under the constitution. They should just keep away from the business of law-making.
The Ordinance (Comments Dated 02.02.2013)
The cabinet has cleared an ordinance to incorporate amendments in criminal law in reference to the recommendations made in Justice Verma Committee Report vide the Criminal Amendment Bill, 2012. These are the lacunae in the proposed ordinance:
Death Penalty
If a victim is left in a vegetative state, it is his/her misfortune. He/She can take revenge by killing the perpetrator himself/herself and plead less severe punishment on conviction. But the state has no business avenging her through law.
No Gender Neutrality
Section 354, 354A and 354B have not been made gender neutral. I fail to understand the difference between a man watching a woman naked or a woman watching a man naked. Both are voyeuristic. Ditto for sexual assault and disrobing.
Voyeuristic Videos
Neither the Justice Verma Committee report nor the ordinance has made creation and/or dissemination of voyeuristic videos as offenses. These, by far, are much graver offenses. Is it because the state and the power elites themselves are creating these videos!
Such videos are mostly created by politicians, police, the corporate and other influential people. In the USA (may be also in India), the corporate install stealth cameras in washrooms, and, when caught, they claim the defense of organizational interest. Now even student hostels have started installing such candid cameras with the approval of the parents in pretext of protecting the students. Of course, the elites, who have never been caught and will never be caught, also seek entertainment through these videos.
However, now the videos have also started getting circulated among masses through Torrentz, Youtube and what ever else. Probably, the videos are being leaked by the power elites only for punishing those who don’t follow their dictates. Isn’t it obvious the recommendations disguised as the Justice Verma Committee report are actually originating from where!
Cognizability
There is no clarity about cognizability of offenses. Making all of them cognizable, non-bailable and non-compoundable will lead to the emergence of a new political class, who will use women as their source of power. It may even lead the common woman to misuse the provisions.
Recently, I came across an incident. There was some small dispute between a rickshaw-puller and a girl over some payment issue. The girl started walking without paying. The rickshaw-puller however, grabbed her hand to stop her. This was obviously an offense u/s 352 r/w s. 350 IPC (non-cognizable offense) but not u/s 354 IPC (cognizable offense) because the rickshaw-puller never had any intention to sexually assault the girl. The girl sought police help. I left the place so I don't know what happened thereafter, but, if the police arrested the rickshaw-puller in consequence of the complaint -- which, I think, they did -- it is a clear case of misuse of the provision, and such misuses will increase manifold if the offenses are made not only cognizable but also non-bailable.
The offenses of minor assault, stalking, voyeurism, etc, can and should be made compoundable. The society already promotes a ridge between the man and the woman by treating them as some different species created to fight each other. The amendments, as proposed in the Justice Verma Committee report, further enlarge the ridge.
Additional Issues
Marital Rape
There is lots of debate about marital rape. Personally, I am in favor of making it an offense because it would be progressive. But there is a very strong pre-condition for doing so. The condition is that the personal laws of all religions need to give way to a religion neutral uniform civil code, which inter alia wouldn’t provide for the restitution of conjugal rights. Thus so a marriage will cease to be a sacrament as in Hindu law and a one-sided contract as in Muslim law. And the courts will acknowledge the restitution of conjugal right as an infringement of right to privacy.
I don’t see it happening any time soon because the society has not yet reached that kind of maturity. Anyways, the personal matters are best left for a gradual change — even Britishers couldn’t push the English law in the personal affairs of Indians.
Adultery
I believe section 497 IPC is regressive. Section 497 IPC punishes adultery by an outsider male who infringes a marriage and enters into an adulterous relationship with the wife without the consent of the husband. However, the reverse is not punishable. That is, an outsider female who infringes a marriage and enters into an adulterous relationship with the husband without the permission of the wife is not an offender.
Though section 497 has been included in chapter XX of IPC dealing with offenses relating to marriage, but the message is different. The provision considers a wife as the property of the husband, bound to have sexual intercourse with him and him alone unless he hiself consents to an extra-marital affair. Of course, it is not a provision to maintain the sanctity of marriage.
This provision rather restricts the sexual choice of a married female. Marriage is an institution to propagate the association and institution of family. Institutions are acceptable forms of procedures for individual and group inter-relationships. They are amenable to change and do undergo change. The institution of marriage has in fact undergone change. Now no sane man believes his wife to be his property.
Adultery is a valid ground for seeking divorce. Ironically, this provision but resists a woman from doing just that because she is forced to live in celibacy during the period of litigation. Whereas the husband can keep having adulterous relationships at will. This is the most regressive provision in the IPC, which has been retained from the English law. The provision has been done away with in the UK but continues to be retained in India. Why no women group, the Justice Verma Committee report, or the government itself hasn’t recommended its deletion!
Women Right Activists
The women right activists have raised some valid issues, and I agree with them:
- Increasing the consensual age from 16 to 18 is ridiculous.
- The prior sanction for prosecuting public servants including defense personnel also doesn’t make any sense.
- Not doing away with some regressive tests like “two-finger test” is incomprehensible.
Rape versus Sexual Assault
The controversy with respect to “rape” being a gender specific word and “sexual assault” being a gender neutral word, is unnecessary. Both are gender neutral. There is no international or historical indication to construe otherwise. It seems some stupid joint commissioner of police looked into the genesis of the word “rape” in “Genesis” and called it gender specific, which even the Pope wouldn’t do today.
© 2013 Ankur Mutreja