Dated 5.9.2012
To,
Mr. Salman Khurshid
The Minister of Law
and Justice,
Shastri Bhawan, A
Wing,
Dr. Rajendra Prasad Road,
New
Delhi –
110001
Dear Mr. Khurshid,
Sub: Comments on The
Criminal Law (Amendment) Bill 2012 regarding Laws relating to Sexual Assault
We the undersigned national
women’s organizations welcome the initiative taken by the government to amend
the laws relating to sexual assault. We also welcome the proposal to include
Acid attacks and Attempt to commit Acid Attacks as separate sections in the IPC
as well as the addition of Section 166A to the Penal code which prescribes
punishment to a public servant who does not follow the law relating to
investigation of a crime. We are however, deeply concerned about the latest
amendments passed by the Union Cabinet to amend the laws relating to sexual
assault in Sections 375, 376 and 354 of the Indian Penal Code. While amendments
in the laws relating to sexual assault are urgently required in our archaic
penal code and the conceptual shift in redefining rape as sexual assault is
appreciable we feel that the present proposals are inadequate and counterproductive.
Women’s Organisations and groups
have been demanding changes in the entire spectrum of laws related to sexual
assault including rape, molestation, Sexual harassment (popularly known as ‘eve-teasing’)
and “Unnatural offences” in the IPC for more than 20 years. Some of us prepared
a draft proposal to bring about comprehensive changes in the laws relating to
sexual assault as far back as 1993. Since then we have submitted several drafts
of the required changes to the government in 2002, 2005 and in 2008, some of
which are reflected in the proposed amendments to section 375 and 376 of the
IPC. Our comments to the present 2012 Bill are as under:
1.
The changes proposed in Section
375 to broaden the definition of rape and to include within it all forms of
penetrative sexual assault is a first step in the right direction. The section
has however been made gender neutral which is a reversal of what the government
had proposed in 2010.This seems to imply that women can commit sexual assault
against men for which there is no empirical evidence at all.
The section will allow men to file
false cases of penetrative sexual assault against women. The proposed government
bill in 2010 rightly made the law gender specific as far as adults were concerned
and the accused persons could only be men while the complainants/victims were
women.
2.
We had also earlier proposed that
Section 377 which allegedly deals with ‘unnatural offences’ but in fact targets
consensual sexual intercourse should be deleted. We had also proposed that
another section be added to the Indian Penal Code to address penetrative sexual
assault in same sex relationships. We reiterate both these proposals.
3. Apart from this various vital suggestions
made by women’s groups in the bill redrafted by us and in the NCW bill have
been ignored by the present bill. A
notable example of this is that while the law relating to molestation vis-a-vis
children has been amended in the Protection of Children from Sexual Offences
Act, 2012, no such amendment has been suggested as far as the definition of molestation
of women is concerned. The amendment to Section 354 IPC merely increases the
period of punishment that can be awarded to a minimum of 1 year and a maximum
of 5 years but makes no changes to the insulting, moralistic, inappropriate and
archaic definition in S354 IPC which makes sexual assault punishable only when
it ‘outrages the modesty of a woman’. We fail to see why the section dealing
with unlawful sexual touch of an adult woman has not been amended in the
government bill. We had suggested and are again suggesting that Section 354 be
redefined to punish touching a woman with a sexual purpose or intent. We also
feel that the categories of aggravated forms of penetrative sexual assault should
also be recognized as categories of non penetrative assault. We further state
that aggravated forms of molestation which cause or are accompanied by causing
hurt or injury or by stripping should be specifically recognized and added as
an additional category.
4. The bill, like the old Penal code,
exempts marital rape as an offense if a wife is not under 16 years of age. This
exemption, totally and unreasonably, ignores the long standing demand of the
women’s organizations and groups and others to recognize marital rape as rape.
We also recommend deletion of Section 376 A as we see no reason why the
punishment for sexual assault on a separated wife should not be the same as
ordinary sexual assault.
5. In the 2008 draft for amendment of the
sexual assault sections of the IPC prepared by AIDWA and presented by us to the
government, consent had been defined as the unequivocal voluntary agreement by
a person to engage in the sexual activity in question. One major reason for
defining consent in this way was to distinguish consent from mere passiveness.
Case law concerning rape is replete with examples in which it has been said
that the victim has consented when she has merely remained passive due to a
variety of reasons.
6. In both the redrafted AIDWA proposals
and the NCW proposals clause ‘Sixthly’ under Section 375 defines statutory rape
as rape of a complainant under 18 years of age. However, taking note of the
social reality that many instances of consensual sexual activity between young
girls above 16 years of age and young boys and that it would lead to injustice
if these young boys were persecuted for rape, an amendment by way of a proviso
has been inserted in both these bills to exempt such consensual activity from
the purview of statutory rape provided the accused person is not more than 5
years older. We strongly feel that this proviso should be included in the
government bill. A copy of the Criminal Law (Amendment) Bill redrafted by AIDWA
in 2008 is being attached along with this letter.
7. In the sections on aggravated penetrative
and non-penetrative sexual assaults we further feel that sexual assault by
personnel of the armed forces and by personnel of the para military and other
allied forces should be included.
8. Similarly penetrative and non-penetrative
sexual assault at the time of or together with other forms of communal violence
should be categorized as an aggravated form of sexual assault.
9. In clause (b) of Section 376(2) sexual
assault at the instigation of or with the consent or acquiescence of a public
official or other persons acting in an official capacity should also be added
as an aggravated form of sexual assault. This clause should also be added in
the new section which will deal with aggravated forms of non-penetrative sexual
assault.
10. In Section 375(a) penetration of the
mouth apart from the vagina etc of a person with any part of a body or an
object of another person is defined as sexual assault. However, if an object or
a part of the body, for example a finger, is inserted into the mouth it would
be ridiculous to equate this with sexual assault. Incidentally the Law
Commission draft on which this clause seems to be based does not mention the
mouth in Section 375 (b). It is only when the penis is forcibly introduced in
the mouth that sexual assault occurs.
In Section 375
(b) manipulation of a part of a body of a woman etc to penetrate the body of
the offender has been included in the definition of sexual assault of a woman
by a man. Firstly, in the bill redrafted by AIDWA and in the NCW bill, this
clause only applies to sexual assault on children since children are often
forced to carry out sexual intercourse in this way. Secondly the clause seems
to suggest that the offender has a vagina whereas the offender can only be a
man according to the first line of Section 375.
11. The amendment to Section 273 CrPC by way
of an insertion stating that the victim should not be confronted by the accused
is welcome. However, the method of cross examination needs to be specified so
that the victim is not harassed and further victimized during the cross
examination. We appreciate that the
amendments to section 154 and section 161of the CrPC but feel that the
questioning of the victim must also be carried out by a woman and that if a
female police officer is not available, a female government servant or a woman
authorized by an organization working in the relevant area should carry out the
questioning.
Apart from this
we are disappointed that several other suggestions made by us and the NCW have
not been incorporated in the law. The women’s organizations have carried out a
long struggle to bring about comprehensive changes in the law relating to
sexual offences so that the reality of women’s experience is reflected in the
Indian Penal Code which is at present deficient in various respects. We had
suggested changing the definition of sexual harassment in 509, IPC which is
also obsolete and insulting to women but this has not been done. We had also suggested
the insertion of stalking as a separate crime in the IPC. By not recognizing Stalking
as a crime most of the perpetrators manage to escape prosecution and can only
be charged under Section 509 IPC which is inadequate. Most of these suggestions are a part of our
attached draft law.
We therefore
urge the government to take a holistic view of the matter and to make
comprehensive amendments to all the relevant sections of the IPC apart from
introducing the necessary new sections.
Thank you,
Yours sincerely,
Dr. T.N Seema Ms. Jharna Das Ms.Sudha Sundararaman Ms
Kirti Singh
(MP, Rajya
Sabha) (MP, Rajya Sabha) (AIDWA) (AIDWA)
Ms.Annie Raja Dr. Jyotsna
Chatterjee Dr Mohini Giri Ms. Indrani Majumdar
( NFIW ) (JWP) (GOS) (CWDS)
Ms Sheela Kakde Ms. Leila Passah Ms. Jagmati
Sangwan Ms. Vimal Thorat
(AIWC) (YWCA) (AIDWA) (AIDMAM)
Ms Azara Abidi Ms. Anuradha Bose
(MWF) (GOS)
