(March 2013)
Critique
My critique of the amendment proposed in the IPC by Jusitce Verma Committee (Re: Appendix 4 at http://www.thehindu.com/news/resources/full-text-of-justice-vermas-report-pdf/article4339457.ece):
Section 100: S 326A is not only grievous hurt; “which shall include” creates confusion about the intention of the Legislature; the courts may misinterpret the provision to allow this defense even in those cases where no case for the apprehension of grievous hurt is made out.
Section 166A: Five year punishment is draconian.
Section 166A (c): “Record” needs clarification. Is it only an entry into the book as specified or a recording in any other form will also do? Section 354: 5 year rigorous punishment for touching inappropriately is draconian and grossly impractical. People will stop traveling in public transport.
Section 354A: No rigorous punishment for attempt to disrobe a woman in public place! No separate offense for actually disrobing a woman! No separate offense for creating videos or in any other manner recording the act of disrobing a woman! No separate offense for publishing the records so created! No separate offense for disrobing or attempt to disrobe or creating records or publishing record with respect to a man!
Section 354B (explanation): Is viewing an offense or is dissemination an offense?
Section 354B: No separate offense for creating records without consent! No separate offense for dissemination/publication of records so created! No separate offense with respect to sexual acts of men!
Section 354C(1): “monitors” is very wide.
Does it include even monitoring without use of any intruding
programs, i.e. without any hacking. If yes, then I am LOL —
BBye.
Section 354C(1)(iii): What is “reasonable”? Is spying by
recruitment agencies or recruiters reasonable? I think it is not.
Am I being reasonable!
Section 370 (7), section 376D and section 376E: Does “rest of that person’s natural life” means overriding s. 55 IPC?
Section 375: I had much rather had it gender
neutral; women can at least enter into fellatio without consent (as
defined in the section or even otherwise) and even penetrate anus
without consent. Can consent be for a particular act but not for
another act in the same transaction? Can consent be in writing for
a specified period for all or some acts? The differentiation
between Sexual Assault and Rape, as proposed, is important and
welcome.
Section 376(3), section 376B(2) and section 376C: Does “rest of
that person’s natural life” means overriding s. 55 IPC? If not,
then there is a serious contradiction as s. 55 will not apply to 20
year punishment.
Making all offenses against women cognizable and non-bailable is draconian and arbitrary. It will give arbitrary powers to the police, especially in minor offenses of voyeurism, stalking, and minor sexual assaults. Furthermore, all the offenses have also been made non-compoundable; I think many of these offenses can be made compoundable, either with or without the permission of the Court. There are mainly three viewpoints in Feminism: the Radical View, the Liberal View and the Socialist View. The amendments proposed in the IPC in the report are greatly influenced by the Radical Feminism, which is a very negative sign. The Radical feminism per se is regressive and violent: It is the female version of right wing extremism. Moreover, the report is not even comprehensive in dealing with the offenses with respect to sexual privacy.
However, my biggest problem is the reverse gender bias that has been propagated in the report: disrobing, voyeurism, rape, etc, are gender neutral, and there is no reason to believe that the perpetrator can’t be a woman, and the victim can’t be a man. Not making the law gender neutral propagates the view that the women are inherently shy, and the law should protect their modesty; this is an irrational view and greatly responsible for the subordination of women; the proposed amendments propagate this view even further.
I feel there is a strong corporate influence in the preparation of this report; the corporate should just get out of this business of law making because they conduct their affairs most arbitrarily, and they just don’t understand the concept of equality and rationality — this I can say from my personal experience.
I am deeply disappointed and give thumbs down to the amendments proposed in the IPC in the report.
The Government Ordinance
The Cabinet has cleared an ordinance with respect to amendments in the criminal law in reference to the Criminal Amendment Bill 2012 and the recommendations made in the Verma Committee Report. There are the following lacunae in the proposed ordinance:
1. Death penalty is regressive. If a victim is left in a vegetative state, it is his/her misfortune. He/She can take revenge by killing the perpetrator himself/herself, and, for doing that, he/she doesn’t need the help from the State; and, then, when the State punishes him/her and his/her accomplices for murder, he/she and his/her accomplices can plead lesser punishment for obvious reasons.
2. Section 354, section 354A and section 354B have not been made gender neutral. I fail to understand the difference between a man watching a woman naked or a woman watching a man naked. Both are voyeuristic unless the State wants to attach value to women’s modesty; ditto for sexual assault and disrobing.
3. I am completely surprised why the Justice Verma Committee has not made creation and/or dissemination of voyeuristic videos as offenses. These, by far, are much graver offenses. The ordinance also doesn’t provide for these offenses. Is it because the State and the power elites are themselves creating these videos to maintain the status quo! Most of these videos are created by the politicians, the police, the corporate and other influential people, almost for ages now. In the US (may also be in India), the corporate install stealth cameras in washrooms, and, when caught, they say it was being done in organizational interest as corporate spies deliberate strategies in washrooms. Now, even student hostels have started installing these cameras with the approval of the parents in pretext of protecting the students. Of course, the elites, who have never been caught and will never be caught, will keep seeking entertainment through these videos, and the common man will be punished for watching them — it’s like saying those who manufacture and trade in drugs will not be caught, but those who do drugs will be punished. Now, the videos have started getting circulated in masses through Torrentz, Youtube and what ever else, and the videos are also leaked by these power elites for punishing those who don’t follow their dictates. It is clear where these recommendations are coming from; ditto for disrobing.
Marital Rape
There is lots of debate about marital rape. Personally, I am in favor of making it an offense because it would be progressive. But, there is a very strong pre-condition for doing that: The personal laws of all religions need to give way to a religion neutral uniform civil code, which wouldn’t provide for restitution of conjugal rights, which means that the marriage will cease to be a sacrament as in Hindu law and a one-sided contract as in Muslim law, and the courts will acknowledge the restitution of conjugal right as an infringement of Right to Privacy. I don’t see it happening any soon because society has not yet reached that kind of maturity, and the personal matters are best left for a gradual change — even the British couldn’t push English law in the personal affairs of the Indians.
Further, I believe, s. 497 IPC is a big hindrance: S. 497 IPC punishes adultery by an outsider male who infringes marriage and enters into an adulterous relationship with a married female without the consent of the husband; however, the reverse is not punishable; i.e., an outsider female who infringes the marriage and enters into an adulterous relationship with a married male is not an offender. Though s. 497 has been included in chapter XX of IPC dealing with offenses relating to marriage, but the message is clear: It considers a married female as property of the husband, bound to have sex with him and him alone unless he consents to extra-marital affairs, and it is no provision to maintain the sanctity of marriage. This means if a married female doesn’t want to have sex with the husband, she can’t have sex at all except with a willing criminal. Marriage is an institution to propagate the association and institution of family; institutions are accepted form of procedures by the society for individual and group inter-relationships and are amenable to change and do undergo change, and the institution of marriage has in fact undergone change: No sane man believes his wife to be his property anymore. Adultery otherwise is a valid ground for seeking divorce, but, ironically, this provision resists a woman from seeking divorce because during the period of litigation she would be forced to live in celibacy, whereas the husband can keep having adulterous relationships at will: What can be more regressive than this! This is the most regressive provision in the IPC, which has been retained from the English law; the provision has been done away with in England, but it continues to be retained in India. I fail to understand why no women group or the Verma Committee or the government itself hasn’t recommended its deletion.