Amid the growing clamour for capital punishment for rapists, what has perhaps got eclipsed is the sweeping changes to rape laws already envisaged by the Centre, which are now pending before Parliament.
The Criminal Law (Amendment) Bill, 2012, tabled in the Lok Sabha on December 4, is a by-product of decades-long deliberations on improving rape laws in the country, which have remained more or less static since their introduction in 1860. These set of amendments, in fact, have been welcomed by women’s groups who called it a step towards a rights-based approach to the issue.
Let us look at the contents of the Bill. Perhaps the most prominent change is the shift in terminology. The existing offence of ‘rape’ is set to be replaced with ‘sexual assault’, which clearly widens the ambit of the crime.
While earlier, the definition of rape under the Indian Penal Code was sexual intercourse with a woman without her consent, courts have confined it to penile penetration of the vagina. The new amendment though brings under the ambit of this offence penetration of “vagina, anus, urethra or mouth with any part of the body including the penis, or any other object for a sexual purpose”.
S Srikantan, a Delhi-based lawyer and researcher, says the widening of the definition to include penetration of other parts compliments the shift in terminology from rape to sexual assault. “Time and again, we have documented that penetration of body parts other than the vagina affects the state of women in the same way and the conservative society we are in reacts in an identical manner to such women,” he points out. Activists say many cases in the courts get diluted with this single point, as a simple assault case on women carries much lesser penalty than rape, for which a life imprisonment could be awarded.
Punishment in fact is a major bone of contention, with the Leader of the Opposition in the Lok Sabha, Sushma Swaraj, demanding death penalty. While the new amendments retain much of the penalty clauses, with minimum punishment being seven years imprisonment and a maximum of life sentence, one important change is the role of courts.
Lawyers and activists say the Bill, once passed, would take away the powers of the court to lower sentences below what is prescribed. Therefore, it provides a sort of protection in arbitrariness in sentence-awarding. “In cases where the sentences have been reduced, we sometimes see an attempt to throw the blame on the victim. Sometimes, judges might see the crime as that of passion than of violence,” observes Geeta Ramaseshan, a lawyer. Activists in fact point to instances where the higher judiciary pulled up lower courts for slack sentencing and reversed the orders.
Lastly, the amendment to the definitions has also made the law gender-neutral, which means the aggressor need not be a man. However, this particular clause has not gone down well with the civil society, which, many feel, could be used to turn the tables on the woman during prosecution.
“We have hardly come across any empirical studies about cases of women being aggressors. There have been cases of women abetting rape, but such crimes are covered in the existing laws,” points out Geeta Ramaseshan. Also, the effect of rape on a man per se is different when looked at it from a societal point of view. In the case of women, apart from the physical effect, rape induces moral questions in a conservative society.
Women groups feel the best way forward on this issue is to retain the definition of the aggressor and widen the ambit of who the victim is. With the government dropping hints that it was okay with death penalty in the rarest of rare cases, the fate of the current Bill now becomes uncertain. For, to accommodate judicial execution, it would have to go back to the Cabinet.