The Telegraph
Since 1st March, 1999
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- The Indian Penal Code needs to be changed on rape

In an earlier column, I began to talk about gender biases in Indian laws, given the background of reports submitted by the task force on women and children and the National Commission for Women. Let me now turn specifically to the violence issue and in this column, I will restrict myself to sexual violence, that is, rape and molestation.

Three major acts govern criminal trials. The Indian Penal Code lays down categories of offences and stipulates punishments; the Criminal Procedure Code lays down procedural rules for investigation and trial; and the Indian Evidence Act prescribes rules of evidence to be followed during a trial. So, there are two important parts of the law ' the substantive law and the procedural law. The former is contained in the IPC and the latter in the other two acts. Both the task force on women and children and the NCW interpret IPC issues in the context of rape (Sections 375 and 376). However, the IPC also has other sections.

Sexual harassment, including rape, is not backed by any specific legislation. There is nothing other than the IPC. Rape is a separate issue. But on non-rape issues, there is no act that defines sexual harassment. Sections 294 (obscene acts and songs) and 509 (word, gesture or act intended to insult the modesty of a woman) of the IPC partly overlap. Section 294 states, 'Whoever, to the annoyance of others ' (a) does any obscene act in any public place, or (b) sings, recites, or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or both.' Section 509 has, 'Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.'

Courts may have defined sexual harassment and also laid down comprehensive guidelines to be followed, but that's not quite the same as a statutory definition. Notice that annoyance is an important ingredient of the offence under Section 294 and this is associated with a mental condition. Notice that Section 294 also requires the annoyance to occur in or near a public place. While Section 509 has no such requirement, there is perhaps a case for enhancing the punishment to three years. Sections 351 and 352 of the IPC are not specific to women, but Section 354 (assault or criminal force to woman) is. Section 354 states, 'Whoever assaults or causes criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage, her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.' This covers assault. The point to note is that Sections 294 and 509 fall short of physical contact. There are crimes of molestation that fall short of rape, but involve physical contact. As of now, there are no provisions in the IPC that cover these as a substantive offence.

Since the Vishakha case in 1997, courts have defined sexual harassment as unwelcome sexual gestures or behaviour that involves sexually coloured remarks, physical contact and advances, showing pornography, demands and requests for sexual favours and other unwelcome physical, verbal or non-verbal contacts that are sexual in nature. (There was a case involving the Apparel Export Promotion Council.) Sexual harassment was thus defined as a separate illegal behaviour. These guidelines have partly been based on fundamental rights guaranteed by Article 21 of the Constitution.

But there is still the absence of any enacted law against sexual harassment. (Incorporating such principles in the standing orders under the Industrial Employment (Standing Orders) Act, 1946, is a second-best solution, as that does not touch the unorganized sector.) And there is still a problem with going to court on such matters, especially if Sections 354 and 509 cannot be invoked. After all, an FIR has to spell out the nature of the offence. And also spell out whether the crime is bailable and cognizable. The law commission (172nd report on 'Review of Rape Laws', March 2000) recommended insertion of Section 376E in the IPC to cover unlawful sexual conduct. The NCW repeats this recommendation. The task force on women and children seems to favour the broadening of the definition of rape to cover sexual assault also. However, since two distinct crimes are involved, that may not be the best way to approach matters. We will come to the definition of rape and its problems in a moment. But on sexual harassment or unlawful sexual conduct, it may be a better idea to insert a Section 376E. As far as one can make out, the recommendations are still pending with ministry of home affairs.

Turning to rape, that is covered in Sections 375 and 376 of the IPC. There are several problems with these sections. First, Section 375 has six circumstances that constitute rape. The sixth of these, with or without consent, is when the girl is under 16 years of age. There is no disagreement that this should be increased to 18 years and this view has been endorsed by both the task force and the NCW. This will also bring it in conformity with the Child Marriage Restraint Act of 1869. But the necessary amendment has not been done, because one has got bogged down in broader issues concerning Sections 375 and 376. Second, within these broader issues, is the exception clause to Section 375. This states, 'Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.' This is not that simple a matter.

The NCW favours deletion of this exception clause to cover marital rape also, but the task force favours a wider debate. Marital rape is not a separate offence under the IPC or any other statute, although Sections 319 and 320 of the IPC can cover instances of 'hurt'. This is also for instances where the husband is not separated from the wife. (If the husband is separated from the wife, since 1983, forced sexual intercourse amounts to rape, although the minimum sentence is only two years, compared to seven years for other cases of rape.)

In instances where the husband is not separated from the wife, marital rape may be a serious problem. But solving it is perhaps not as simple an issue as one of deleting the exception clause. Third, there is a problem with the explanation clause to Section 375, which states, 'Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.' That this penile definition is inadequate is obvious and the afore-mentioned report of the law commission has suggested a broader definition of rape. Fourth, there is a question of enhancing penalties from the present 7 years.

For instance, the NCW favours the death penalty in some cases. But that gets into a broader debate over the merits of capital punishment, as opposed to acceptable arguments (advanced by both the NCW and the task force) that there should be higher penalties when incest is involved or when HIV/AIDS is knowingly transmitted. (The Malimath committee recommended life imprisonment without commutation or remission.) There is a related speculative proposition (advanced by the NCW) that there might even be statutory provisions for compensations to rape victims.

On the entire rape issue, the sense one is left with is the following. The present IPC provisions are unsatisfactory and need to be changed. On some of these (enhanced penalties for incest, spreading HIV/AIDS, changing the penile definition, increasing the age of consent to 18 years) there is a greater degree of consensus. On others (marital rape, death penalty, making the wording of Section 375 completely gender neutral), there is a lesser degree of consensus. But hope for the latter amendments, which require debate, is holding up the former and that need not be the case.

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