Can a relatively liberal law, that includes a broad definition of rape and prescribes a stringent minimum sentence, become counter-productive?
In 2013, the Indian Parliament enacted amendments to redefine and broaden the definition of rape to include oral and non-penetrative sex. It prescribed a minimum seven years in jail upon conviction and reiterated that past sexual history cannot be used to prove ‘consent’.
Less than four years after it was amended, Kapil Sibal appeared for a petition, filed by activist Madhu Purnima Kishwar and two others, seeking changes to the “draconian” provisions recommended by the Justice JS Verma Committee in the aftermath of the 16 December 2012 gangrape case.
The petition is against:
1. The widening of the definition of rape to include non-penetrative acts which are “incapable of medical corroboration”
2. Raising of the cut off age for “statutory rape” or “child rape” to 18
3. The new, stricter definition of “consent”
4. The taking away of the judicial discretion to award less than 7 years of punishment
Definition of Rape
As of today, the rape law in India under Section 375 stands amended. It includes all forms of sexual assault and is not just limited to penile/vaginal intercourse or heterosexual intercourse.
A part of Madhu Kishwar’s argument is that non-penetrative acts cannot be medically corroborated. But neither can all penetrative or peno-vaginal rapes.
The law says that a medical report is not crucial to confirm rape, but judges continue to seek it out for evidence. The medical report may be of consequence in gruesome rape cases like Nirbhaya and the Shakti Mills gangrape case.
But it is not possible to get medical evidence in most cases where the abuse is over a long period and where there are no injuries. In most instances the rape is reported after a period of time, especially where the perpetrator is within the family and hence no medical evidence is available.
These cases are relatively low-profile and do not get any media attention.
Progressive Law Separate from On Ground Reality
Madhu Kishwar’s petition claims that there has been a startling spurt in rape cases in Delhi that are proving to be fraudulent. The petition claims a large number of independently unverifiable cases and even perfectly consensual acts will now be counted as rape.
The petition states that of the total rape complaints in a year, over 25 percent involve a breach of promise to marry, and over 30 percent involve consensual elopements, with revenge emerging as a prime motive for complaints, as per studies conducted by the Delhi Commission of Women and The Hindu newspaper.
But each rape case is different from the other, and these numbers cannot be taken on face value, argues Audrey D’Mello, Programme Director Majlis.
In most cases, where at the outset it looks like a promise of marriage story when we meet the victim, she reveals the immense sexual abuse and threats she has faced. After long-term sexual abuse where she was pregnant and forced to abort on a number of occasion, the boyfriend dumps her and she is forced to approach the police for help.
Through their programme, Rahat, D’Mello and an all-women team of lawyers and activists, headed by Flavia Agnes, provide social and legal aid for victims of rape in Mumbai.
“The Child Sexual Offences Act was amended prior to 2013 and Section 375 of the IPC, which deals with rape and sexual assault, were amended post Nirbhaya. But the messaging, the manner in which rape is reported by victims and recorded by the police has not changed on ground,” says D’Mello.
Prescribed Punishment
The mandatory seven-year punishment is another point of contention according to Madhu Kishwar’s petition. “Is it not arbitrary and restrictive of due process to remove the provision to Section 376(1) and thus extinguish the judicial discretion to award less than 7 years for adequate and special reasons,” she asks.
“While the definition of rape has been widened, mandatory punishment has been set very high. So the judges are acquitting the accused in cases which don’t make for a perfect rape. Or cases in which the victim has not suffered any brutal injury,” says D’Mello.
It is in these so-called average cases, which are so much more intrinsic and violative, the accused get easily acquitted, because the courts don’t find the rape and its evidence grave enough to warrant seven years in jail.
But the exact opposite happened in the high-profile rape case involving ‘Peepli Live’ co-director, Mahmood Farooqui. Speaking to Outlook Magazine on the debate around the seven-year sentence awarded to Farooqui, activist-lawyer Flavia Agnes said:
I do not endorse the view that whether it is oral sex by a friend in his drawing room or a gruesome gangrape where weapons are used carrying grievous injury – the same yardstick must be used for assessing the harm or trauma caused by invoking the premise that rape is rape. Bringing the violent imagery of a brutal rape while arguing this case (Mahmood Farooqui), according to me, is highly inappropriate, even if it is only to make a point in support of the survivor. Such comparison may only serve to dilute the brutality of the Nirbhaya case.
Ground Reality Vastly Different From Legal Progress
But the problem arises when activists and campaigners use these acquittals to mount a case to change the definition of rape.
Madhu Kishwar supports her argument for India’s anti-rape law to be made more specific on the basis of a survey conducted by The Hindu. She says, “Their analysis revealed that one-fifth of reported sexual assault cases in Delhi ultimately wound up because the complainant either did not appear, or turned hostile, while another 25 percent had to do with the 'breach of promise to marry’.”
If there has to be an amendment to India’s rape laws, let it be with the objective to secure more convictions in the smaller, more average cases. Let not the gruesome headline making cases alone dictate how we frame our laws.
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