Wednesday 11 June 2014

Adding Absurdities to Anti Rape Law - Why Not Top it All with “The Duty to Waive Appropriate Laws before Offenders” Act?



Despite its colonial bias, the Indian Penal Code enacted in 1861 by the British who ruled us then, is still serving us far better than the entire gamut of post-independence legislation, especially the laws enacted ostensibly for protecting or strengthening women’s rights. But every time a law fails to deliver its promised results,  instead of taking a cool headed review, a small but volatile and media savvy coterie of NGO’s starts a hysterical campaign for making the law more stringent. The government of the day willingly obliges by adding a few draconian provisions to the existing law—increase the term of imprisonment, make the crime non-bailable, shift the burden of proof on the accused and brush aside due process to placate the hysterical NGOs and their allies in the media for the simple reason that it helps deflect attention from its failure in getting the existing laws implemented with honesty.

Since most of these laws are passed as knee jerk reactions their “use-by date” is over even before women for whose benefit the law has been passed get to know of its provisions or intent. But that does not stop zealous reformers from baying for more amendments, more stringent punishments to be added to the much amended law, as they did with laws to combat dowry, domestic violence, obscene portrayal of women in the media, foeticide and so on. They are often enacted even before law makers have had the time to define the crime with clarity and accuracy.

Take the example of anti-rape law. It was amended in 1983 under pressure from women’s rights activists after the rape of young Mathura in a Hyderabad police station. It enhanced the minimum jail term for rape to 7 years with 10 years for custodial rape. In case of death due to brutal rape, there is provision for life imprisonment as well as death sentence. But none of these provisions proved effective in curbing sexual crimes against women which appear to have actually become more rampant and more gruesome. Leave alone curbing incidents of rape in secluded places or in privacy of homes, government machinery has failed to curb even custodial rapes in thanas and hospitals.

Last year the excessively zealous Women and Child Development Minister, Krishnna Tirath raised the age of consent for consensual sex from 16 to 18—thereby treating a 17 year old male who has consensual sex with another 17 year old as a “rapist”.  She was then brimming with confidence that the law would act as a magic wand for persuading or frightening teenage girls from having sex before they turned 18. But this pious measure also failed to produce the desired result.

In the meantime, the police made it merry by harassing young lovers looking for some private lovey -dovey moments in parks or other secluded places. The police also make a kill by implicating men on the basis of motivated, trumped up charges or absolutely absurd allegations of rape under the existing supposedly “lenient” provisions. For example, in recent years there have been a spate of cases of women getting their lovers and/or live-in partners arrested on the charge of “raping them continually for X number of years” by making a false promise of marriage or a film role or a particular job.  These men surely deserve condemnation for breach of promise. But to charge them of rape is making a mockery of women who actually suffer gruesome assaults on their bodies.

But for the media expose, we could well have had a case filed by the woman lawyer who was caught on camera with Abhishek Manu Singhvi alleging rape, had he failed to make her a judge of the High Court—a job she demanded in return for sexual favours!

To say that a man is legally obliged to marry a woman or give a promised job to a woman he has had sex with and failure to do so will mean a prison term for 10-20 years is to play with fire. Are we willing to extend the same logic to women and have them arrested and jailed if they change their mind about marrying a man with whom they have had an affair?  Can women demand such one sided laws in the name of equality without making themselves objects of disdain?

Predictably, the only people who benefit from such fierce laws are corrupt policemen and unscrupulous lawyers. Just as the police bribe rate goes up for helping criminals in cases of non bailable offences, so also the lawyers’ fee rises astronomically if the offence invites draconian provisions. Genuine victims rarely get the kind of support our police gives to those who have committed crimes against women. Most genuine victims can’t afford to hire lawyers who charge a bomb for arguing their case.

All this would have gone on for ever without any one in the Government losing any sleep if a few gruesome cases of rape in the heart of Delhi had not mesmerized TV channels into making rape into a cause célèbre last year. Therefore, in sheer panic the Government appointed a special Commission headed by legal luminaries who too in sheer panic submitted a humongous report in record 30 days’ time and then pressed more panic buttons to demand that their recommendations be turned into an Ordinance in order avoid delays in passing a new rape law. Never mind that the public hearings of the Commission held just 48 hours before they were to submit the voluminous report were a mere formality because the feminists who wanted certain law changes had already supplied all the ammunition to the Commission before it carried out the formality of public hearings.

So now we have a situation where even before there is consensus on whether to call the crime ‘rape’ or “sexual assault”, whether to raise or decrease the age of consent, how to define ‘voyeurism” or “stalking” it has been decided to make it a non bailable offence—meaning the moment a woman makes this charge, police are duty bound to arrest the person and send him to jail because only court can give him bail. It has also been decided in the draft law that the minimum punishment for rape will be raised from 10-years to 20. Now that the BJP has decided to beat the feminists at their own game, it is going to support a “tough” law simply to get one-up on the Congress party!

Since I am actually feeling sorry for the UPA government for having to act under siege, I have a humble suggestion to help it overcome future embarrassments. Along with the new rape law, the UPA government should enact another law that mandates that EVERY woman must at ALL times carry copies of ALL the laws ( along with their numerous amendments) enacted for protection of women on her person. These copies should be duly certified by the area magistrate so that she can waive the appropriate law with utmost confidence about its authenticity at whoever comes to harm her, beat her up, rape her, violate her dignity, and sense of pride as a woman! This could be called the “The Duty to Waive Appropriate Laws before Offenders”. This could be a drunkard husband come with a knife to kill her or break her skull or a gang of sadists come to rape and tear her body apart or a leery boss wanting sexual favours in lieu of allowing her leave when her child is sick or a pervert carrying a can of acid to disfigure her for having dared snub his advances.

Failure to carry any or all of these laws on her person should invite strict action against the woman or at the very least disqualify her for seeking the help of the police in booking the said criminal because failure to wave the law with a confident flourish is indisputable evidence of “contempt and mistrust of government” and ‘lack of trust” in the magical power of the said law. This simple measure will help curb if not crimes against women, it will surely bring a radical decline in the number of women who will walk into police stations to report and register crimes.

After all, a woman who does not feel strengthened by the sheer ferocity of draconian provisions written into law made especially for her protection, needs “consciousness raising” by duly certified feminist NGOs. For this purpose, the Government should allocate a corpus fund of 50,000 crores with 10% additional yearly increase to provide handsome grants in perpetuity to feminists of the correct political persuasion to conduct legal literacy classes, psychiatric counseling and the art of waving laws with speed and flourish whenever they feel endangered. Grants emanating from this may be used for going on global tours to hold workshops, prepare training modules, audio visual material, films and explore all manners of new consciousness raising techniques with the help of best international experts on the subject.

Once government makes high voltage feminists become “partners in woman’s empowerment” they will be able to protect it from disgruntled citizens far better than the government knows how to.

If this too does not work, let us please request the British to come back for a specified period and update all our laws to sit the requirements of a 21st century democracy in India, since we have failed to do the job on our own steam.





Published in Dainik Bhaskar, March 2013

Madhu Kishwar

Madhu Kishwar
इक उम्र असर होने तक… … … … … … … … … … … … … … … … … … … … … … …اک عمر اثر ہونے تک