First published on 24.01.2013
My critique of the amendment proposed in the IPC by Jusitce Verma Committee:
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 defence 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: 5 year 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 or attempt to disrobe or creating records or publishing record wrt 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 wrt sexual acts of men!
Sec 354C(1): “monitors” is very wide. Does it include even monitoring without use of any intruding programs, i.e without any hacking. If yes, then I am LOL — BBye.
Sec 354C(1)(iii): What is “reasonable”? Is spying by recruitment agencies or recruiters reasonable? I think it is not. Am I being reasonable!
Sec 370 (7) & S. 376D and S. 376E: Does “rest of that person’s natural life” means overriding s. 55 IPC?
Sec 375: I had much rather had it gender neutral; women can at least enter into fellatio without consent (as defined in the section or even otherwise) and even penetrate anus without consent. 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.
S 376(3) and S. 376B(2) and S 376C: Does “rest of that person’s natural life” means overriding s. 55 IPC? If not, then there is a serious contradiction as s. 55 will not apply to 20 years punishment.
Comments dt. 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; I think 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 a very negative sign. Radical feminism per se is regressive and violent: It is the female version of right-wing extremism. Moreover, the report is not even comprehensive in dealing with the offenses wrt sexual privacy.
However, my biggest problem is the reverse gender bias which has been propagated in the report: Disrobing, voyeurism, rape, etc, are gender neutral, and there is no reason to believe that the perpetrator can’t be a woman and the victim can’t be a man. Not making the laws gender neutral propagates the view that the women are inherently shy and the law should protect their modesty; this is an irrational view and 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 corporates should just get out of this business of law making because they conduct their affairs most arbitrarily and just don’t understand the concept of equality and rationality — this I can say from my personal experience.
I am deeply disappointed and give thumbs down to the amendments proposed in the IPC in the report.
Comments dt. 02.02.2013
The cabinet has cleared an ordinance wrt amendments in the criminal law in reference to the Criminal Amendment Bill 2012 and the recommendations made in the Verma Committee Report. Though the copy of the ordinance is not yet available on the internet, but the media has more or less divulged the details (Re: NDTVs comparison chart of Ordinance with Verma committee report). There are the following lacunae in the proposed ordinance:
1. Death penalty is regressive. 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, for doing that, he/she doesn’t need the help from the state; and, then, when the state punishes him/her and his/her accomplices for murder, he/she and his/her accomplices can plead lesser punishment for obvious reasons.
2. S. 354, S. 354A and S. 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 unless the state want to attach value to women’s modesty. Ditto for sexual assault and disrobing.
3. I am completely surprised why the Justice Verma Committee has not made creation and/or dissemination of voyeuristic videos as offenses. These, by far, are much graver offenses. The ordinance also doesn’t provide for these offenses. Is it because the state and the power elites are themselves creating these videos to maintain the status quo! Most of these videos are created by the politicians, the police, the corporates and other influential people, almost for ages now. In the US (may also be in India), the corporates install stealth cameras in washroom, and, when caught, they claim it was being done in organizational interest as corporate spies deliberate strategies in washroom. Now even student hostels have started installing these cameras with approval of the parents in pretext of protecting the students. Of course, the elites, who have never been caught and will never be caught, will keep seeking entertainment through these videos, but the common man will nevertheless be punished for the same — it’s like saying those who manufacture and trade in drugs will not be caught, but those who consume drugs will be punished. Now the videos have started getting circulated amongst masses through Torrentz, Youtube and what ever else and are also being leaked by these power elites for punishing those who don’t follow their dictates. It is clear where these recommendations are coming from. Ditto for disrobing.
4. There is no clarity as to which of these offenses are cognizable, non-bailable and non-compoundable. In any case, making all of them cognizable, non-bailable and non-compoundable will lead to the emergence of a new political class, which will use the woman as their source of power, and this political class can well be a women group too. I am against politicians of all hue and color because politicians beget dishonesty. Moreover, 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 when the rickshaw-puller stopped her by grabbing her hand. 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; the police constable on duty called the IO for recording the statement, etc. 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 in all probability — 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. In fact, the offenses of minor assault, stalking, voyeurism, etc, can and should be made compoundable as is the case in normal assault cases. Already, FM radio, media, movies and the society at large promote a ridge between the man and the woman by treating them as some kinds of different species who have been created to fight with each other; the amendments, as proposed in the Verma Committee Report, further enlarge the ridge, and I have least hopes that the government would have corrected it.
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 that: The personal laws of all religions need to give way to a religion neutral uniform civil code, which wouldn’t provide for restitution of conjugal rights, which means 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, and the personal matters are best left for a gradual change — even the Britishers couldn’t push English law in the personal affairs of the Indians.
Further, I believe, s. 497 IPC is a big hindrance: S. 497 IPC punishes adultery by an outsider male who infringes marriage and enters into an adulterous relationship with a married female without the consent of the husband; however, the reverse is not punishable; i.e., an outsider female who infringes the marriage and enters into an adulterous relationship with a married male is not an offender. Though s. 497 has been included in chapter XX of IPC dealing with offenses relating to marriage, but the message is different: The provision considers a married female as the property of her husband bound to have sex with him and him alone unless he consents to extra-marital affairs, and, of course, it is no provision to maintain the sanctity of marriage. This provision rather signals that if a married female doesn’t want to have sex with the husband, she can’t have sex at all except with a willing criminal. Marriage is an institution to propagate the association and institution of family; institutions are accepted form of procedures by the society for individual and group inter-relationships and are amenable to change and do undergo change, and the institution of marriage has in fact undergone change: No sane man believes his wife to be his property anymore. Adultery otherwise is a valid ground for seeking divorce, but, ironically, this provision resists a woman from doing just that because during the period of litigation she would be forced to live in celibacy whereas the husband would keep having adulterous relationships at will: What can be more regressive! 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 England, but it continues to be retained in India. I fail to understand why no women group or the Verma Committee or the government itself hasn’t recommended its deletion.
Women Right Activists
There are certain valid points raised by the women activists:
1) Increasing the consensual age from 16 to 18 is ridiculous esp. when age point for kidnapping in case of males is 16 years.
2) Prior sanction for prosecuting public servants including defense personnel also doesn’t make any sense: What’s the use of having the provision for custodial rape if there are never going to be any prosecutions?
3) Not doing away with some regressive tests like “two-finger test” is incomprehensible.
Comments dt. 13.03.2013
Actually I shouldn’t be writing this comment under this heading but under some separate heading like “stupid government”. Nevertheless, I fail to understand this unnecessary controversy with respect to “rape” being a gender specific word and “sexual assault” being a gender neutral word. Both are gender neutral if the intention is to make them so. There is no international or historical indication to construe otherwise. Some stupid joint commissioner of police looks into the genesis of the word “rape” in “Genesis” and calls it gender specific, which even the Pope wouldn’t attempt today, and the government adopts the same terminology as a face-saver to accommodate the voices of the women right activists! This is ridiculous! This government just doesn’t have a spine to tackle issues head-on. If you are convinced about the gender neutrality of sexual crimes, rape or whatever else, where is the need to budge! Of course, rape should be gender neutral; if the women don’t rape, they won’t be accused and convicted. The society is not changed by forcing laws. What is the real issue? Is to set up a new political party?
Note: Justice Verma Panel Report is available at Kractivist (Refer Appendix 4 of the report)
© 2013 Ankur Mutreja