When we talk of amending the law on rape to provide for chemical castration, the death penalty and other forms of state-sponsored brutalisation, we seek revenge, and revenge is not justice. Baying for blood pulls us into the gutter too, to the level of perpetrators. Let us not speak only of the law on rape, for that is not the only injustice women suffer.
We should instead speak more broadly of gender equality and gender justice and that means addressing issues beyond bodily harm, issues that, when measured by their effect on generations, poison us as a society and a civilisation. To satisfy ourselves with legislation made in extremis is to turn a blind eye to fundamental wrongs.
Summum ius, summa iniuria: there is no greater injustice than an extreme law; another ciceronian cadence in law that speaks to us across two thousand years. We should first define the problem that faces us, and then see if the existing law meets our requirements, and change what must be changed. Look at how poorly our criminal law addresses gender equality.
Take, for instance, Section 354 of the Indian Penal Code: "assault or criminal force to woman with intent to outrage her modesty". And Section 509, about a "Word, gesture or act intended to insult the modesty of a woman". Outrage and insult a woman's modesty? What is this? Statutory provisions like this prevent nothing; they only reinforce every single reprehensible male-centric stereotype about what women should be ("modest", "virtuous", "chaste"). Take these sections out completely.
Include every unwanted assault on women, regardless of whether there is an intent to outrage anything or anyone, modest or immodest. Similarly, Section 497, on adultery, is a law that allows a man to be a philanderer but gives him ' and him alone 'recourse if he is cuckolded. Sections 366A and 366B speak of, respectively, the "procuration of a minor girl" (below 18) and the "importation of girl from foreign country" (below 21) with intent or knowledge of likelihood that she will be forced into "illicit" intercourse. It's therefore not a crime, or at least not of this severity, if the "girl" is, say, 18 years and one day? And why must we speak of "importation" and "procuration" as if women are godown-able goods or items subject to customs declarations? The Penal Code's section on rape speaks of forced intercourse "against her will" and "without her consent".
That seems to be a distinction without a meaningful difference. S.375 does acknowledge that consent may be forced by threat and is no consent at all; that much must remain. The trouble lies further on in the explanation which seems to require penile penetration. That needs amendment in a way that recognises that rape takes many forms: as long as there is coerced, non-consensual sexual activity of any kind, it should constitute rape. The biggest issue in our rape law is the quantum of punishment.
First, there should be no "fine" at all, only a mandatory jail term. Fining someone for committing rape is like offering him a ticket to do it again. If you believe that a stringent law is a deterrent then the thing to do is take the offender out of the equation completely, not slap him on the wrist, take a few thousand rupees off him and let him loose again. Second, S.376 seems to make an altogether odious distinction between "types" of rape.
Gang-rape, rape by a policeman, rape of a pregnant woman and others in one category carry a minimum sentence of 10 years, one that can extend to life. The other category implies that there is a form of 'regular' rape, one that's sort of okay and not as heinous: it carries a jail term of 7 to 10 years or life. That, again, is a reprehensible distinction and must go: any form of rape must carry a minimum sentence of sufficient severity; as must that thing called a 'proviso', so beloved of lawyers, one that allows a court to reduce the sentence below the statutory minimum.
We are told by the Supreme Court that this should only be made in rare and exceptional cases. What might those be? Does that in itself imply that some types of rape are just 'okay'? Yes it does, and no, no rape is ever 'okay' or 'understandable' or 'excusable'. And then there is that ludicrous muddle about marital rape. S.376 reduces the punishment for marital rape to a maximum of a two year sentence ' unless the wife is under the age of 12. And S.375 actually makes an exception saying it isn't rape if a man has sex with his wife, provided she's above 15.
There are so many problems with this one doesn't know where to begin, and the simplest ' and most just ' thing to do is get rid of these exceptions altogether. A wife's consent to marital sex cannot be an assumption. The only assumption the law should make is that if the victim is below 18 ' not 16 ' then whether or not she is married, non-consensual sex is rape. We must, too, introduce essential statutory protections: for instance, the fact that a woman has had pre-marital or extra-marital sex, or even that she may be a commercial sex worker, is no excuse or mitigating circumstance.
As long as there is coerced sexual assault, it must qualify as rape. To say that because a woman is 'habituated' to sex (whatever that means) and therefore raping her is excusable is as absurd as saying that because your house has been burgled once it is all right to rob you again. What we need is a comprehensive law that ensures that women have effective redressal against assault of every kind. What we do not need is the occasional vendetta.
Kumkum Bhagya
Hollywood
Anupamaa
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