While indignation surrounding poor implementation of laws concerning sexual abuse and rape seems justified, a key point has been drowned out in the loud debates. The obsessive focus on enforcement has somewhat obscured the fact that the laws need to be altered with the changing needs of the time.
The last time the section dealing with ‘rape’ in the Indian Penal Code was amended was in 1983.
Something bears mentioning here. Though the IPC, enacted in 1860, itself has since been altered many times, popular opinion and outrage seems to be fixed on the fact that it is antiquated. In the wake of many crises, much has been made of how ‘outdated’ it is. ‘We still have laws in force from the 1800s’, the refrain goes. Few understand that as long as the actual text of the law is kept up-to-date, the date on which the law first came into force is irrelevant.
The Criminal Law Amendment Bill, 2006, which seeks to bring about major changes to the IPC has not been brought into force. Drafted by the convener of the All-India Democratic Women’s Association, it is based on consultations by the National Commission for Women and recommendations of the SC and the Law Commission of India.
Law as it is
The IPC definition of ‘rape’, as it currently stands, essentially contemplates a man who has ‘sexual intercourse’ with a woman ‘against her will’ and ‘without her consent’. Section 375 proceeds to elaborate exceptions to ‘consent’, such as when consent is obtained forcibly or under duress.
The real difficulties faced by lawyers and litigants are quite different. Advocate Mrunalini Deshmukh, who specialises in matrimonial law, said, “Rape within the context of marriage needs to be viewed as a ground for divorce, as is the case in the UK. In India, the courts need to fit it in the broader framework of ‘cruelty’, which is already recognised by law as a ground for divorce.”
Law as it could be
The 2006 amendment bill substitutes ‘rape’ under Section 375 with the broader term ‘sexual assault’. Within the meaning of ‘sexual assault’, the bill lays down several new modes of attack. Crucially, sec 375(b) of the draft bill deals with the ‘introduction of an object or a part of the body other than the penis, into the vagina, labia majora, anus or urethra’. None of these are covered under the definition of ‘rape’ as it stands today.
The draft amendment also modifies section 509, which deals with words, gestures or acts intended to insult the modesty of a woman. It narrows the scope of the section to words, gestures or acts ‘with a sexual purpose’.
Implement the law
Criminal lawyer Tejas Bhatt said, “Instead of more laws, what is needed is stricter implementation of the laws that already exist. Complaints under section 509 are already not taken with the same level of seriousness as those under section 354.”
IPC section 354 deals with ‘assault and criminal force’ intending to outrage the modesty of a woman. The amendment deletes this section, while adding the new provision of ‘unlawful sexual contact’, defining it to mean touching any part of the body of a woman with a sexual purpose.
Advocate Armin Wandrewala said, “Hard cases make for bad laws, and neither the number of laws nor their stringency is likely to better enforcement or implementation. Many have advocated the death penalty for rapists, but it cannot be done by popular demand. It is a judicial function and a legal process is involved. The perpetrators deserve the harshest punishment, meted out quickly, after a proper speedy trial.”