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One more opportunity missed!

One more opportunity missed!
Highlights

The atrocity committed on 'Nirbhaya' in Delhi in December last year and the subsequent angry public reactions have finally resulted in the Union...

The atrocity committed on 'Nirbhaya' in Delhi in December last year and the subsequent angry public reactions have finally resulted in the Union Government making the anti-rape law more stringent this month. This in itself is some achievement, feel some of the democratic activists while others are not satisfied. Even A as the debate rages on, here are a few opinions from some of those involved with these issues.
The Criminal Law (amendment) Bill which has been brought in the aftermath of the Nirbhaya episode has at last been shown its place by the Government and the Parliament in the world of Sharad Yadavs. A No doubt there are some provisions in the Bill which are an improvement over the present law. However, the whole debate as well as the end product as passed by the Lok Sabha leave a bitter taste in the mouth. The fears of several women's organisations that at the end of the day we are a backward moving patriarchal society are fortified. The very provision which removes the distinction of the rape as one committed against women and children is being sought to be removed. The term gender -neutral is very misleading. When they are other provisions to punish offences of a sexual nature against male or female children wisdom of making the rape law gender neutral is deplorable to say the least. Both the law makers and the state failed to examine and understand the scope and effect of section 377 of the IPC. This section which deals with unnatural offences could have been appropriately amended to cover all the offences which are not gender specific. The removal of the gender specific nature of rape in section 375 exhibits gross ignorance of the Indian realities. One fails to understand the empirical basis for the consideration that rapes are being committed against the male species. We don't come across any reported incidents of rape against men either through the official channels or complaints before the HRCs or media reports. Therefore even if there might have been a case made out by the Verma Committee to cover the trans -genders and men it could have been achieved by appropriate amendments to see 377 IPC as already mentioned instead of diluting the gravity of the rape committed against women and children. The very notion that a woman can rape a man in the mainstream Indian society is a fantasy than a reality. Such a provision can give rise to manipulations in the hands of unscrupulous men aided by their criminal lawyers. Already hardly 2 percent of incidents of rape reach the police stations. With the threat of counter complaints this number may even come down. The criminal law amendments which are sought to be brought in also fall short of the expectations with regard to the marital rape. The recognition of offence of the marital rape would automatically involve the upholding of the right of the women to their liberty as well as right to choose when and how to bear children.
The term gender-neutral is very misleading. When they are other provisions to punish offences of A
a sexual nature against male or female children wisdom of making the rape law gender neutral is deplorable to say the least The very dignity of the women has no value in the patriarchal society. The parliamentary debate reinforced the fact that we are still a patriarchal society. Therefore it is probably too much to expect such a quality to uphold the rights of women to liberty, equality and dignity. The fact that pre -existing law which has institutionalized the notion of women as a chalet which can be possessed and used or abused has been left intact. The institutions like communal bodies and khap panchayats which have all along been flag bearers for the patriarchal system will continue to rule over women using this archaic law as their weapon. Even though the minimum age at marriage for women was fixed by law as 18 years a number of child marriages continue to happen. When Sections 5 and 11 of the Hindu Marriage Act are read together it becomes clear that why marriage of girl under 18 is nullity. All such child marriages have to be treated as null and void (not voidable but void). Therefore it should follow that any intercourse with a girl below the age of 18 years has to be considers as rape even if the empty formalities of a marriage were gone through. The law ought to have empowered these girl children the right to allege against their void husbands. Instead of doing so the law makers have chosen to ignore marital rape of minor girls in utter ignorance of laws already in existence made by themselves. The state cannot on one and declare by law that under- age marriage in null and void and on another hand allow the men to sexually abuse and rape under aged girls by exempting specifically the rape of 16 year old simply because they were forced to marry. This exemption given to marital rape is most reprehensible exhibition of retrograde attitude of law makers The Verma Committee referred to the usage of expressions like outraging modesty and eve teasing as the relics of old patriarchal way of thinking. Justice Verma therefore suggests replacement of all such terms in all laws with appropriate modern terminology. However Justice Verma seemed to overlook the fact that we are still living in a system where the constitutional amendments to provide reservation for women in parliament and state legislature would not be passed for nearly two decades. In spite of the wide prevalence of sexual assault by the uniformed forces in areas where they are specially deployed for the maintenance of law and order, the law makers missed the opportunity for discouraging such offences by leaving the law in this regard untouched. Even though abuse of privilege by those in power (political, social or economic) is increasing day by day (the rapes committed by MLAs in Maharashtra, UP and Bihar being good examples. Number of MLAs and MPs facing charges of sexual offences is another). No effort was made to make strong legal provisions to curtail such behaviours and attitudes. Those in positions of power therefore get away with impunity and the law will take the course marked by those individuals instead of its own. Those in power being fully aware of this therefore say routinely that the law will take its own course. So we get to have leaders of people who revel in setting bad examples. The political class should therefore think if it wants to be more equal than others in the Orwellian-animal Farm, or be the humble servants of the society. If they are capable of right choices they will also make the right laws.
Why not include child-trafficking?
The Anti-Rape bill was passed in a hurried fashion without any proper debate in the Parliament. Whatever little debate took place in the Parliament was also non- serious and that in a gist summarises how seriously the Bill is being taken in the first place. The government failed to give confidence to women regarding their safety and also to categorically say that touching a woman's body without her consent is harassment. Also the government seems to have simply put aside the recommendations given by Justice Verma Committee. With regards to age of consent, I fail to understand what consent has to do with rape in the first place. Also, not considering marital rape as a sexual offence is saddening. The government also did not include child- trafficking in this Bill. There should have been a debate on a democratic level which would have ensured that the Bill was as strong as the current law against domestic violence. The current Bill, however, has tougher punishment for culprits and while this is a good thing, I am worried about effective implementation. The current Bill seems like a knee -jerk reaction of the government to calm the outrage post the Delhi gang rape when crucial questions regarding women's security were raised.
Implementation is the key
We need to first ask ourselves as to how serious the government is regarding the law and what its commitment towards implementation will be. Just because we have a law, it doesn't mean that there will be effective implementation. There are many laws for protection of women on paper which have not been implemented by the government. Also, the government should address the problems which begin at a grassroots level and find solutions for the same. Having women police stations or mobile patrolling vans is not enough. Efforts should be taken to sensitise women police officers towards the harassed women too. Overall, the success of this law can be measured only by the sincerity of its implementation.
Address grass root A Social issues
The government should have included the excellent recommendations made by the Justice Verma Committee while formulating the Bill. There is an urgent need to look at the culture of violence that is being created by introducing the law without first addressing the grass roots problems in the society. The Anti-Rape law will be successful only if there is an attitudinal shift of the society as a whole. Just like police take measures to ensure security post a terror attack in a city, a sustained campaign should be taken up by the State government to create awareness about violence against women. I am glad that stalking and voyeurism have been criminalised in the new law. For as long as I remember, stalking and voyeurism have been depicted as signs of masculinity and 'heroic' in movies and television. Young men are influenced by this culture of sexual harassment.A There is a need to teach men what is wrong while discussing gender discrimination. Just making laws and increasing punishment will not solve the problem. Marital rape too should have been included as a sexual violence in the law; because the current perspective about the family-marriage system in the society is that man has right over his wife, where a woman is looked at as commodity and not as a human being. So, unless the ideology, language and culture of violence against women doesn't change, any number of laws or Nirbhaya funds will fall flat.
Struggles come to fruition
Anti- Rape Bill cleared by the Parliament of India is one of the greatest advancement towards the making of a legal democracy. The state at last has recognized the severity of the cultural crimes faced by women in their day to day lives. A This bill is an outcome of the sacrifices of millions of Nirbhaya's sisters and mothers who struggle to protect their body and self respect. The state by realizing the significance of the woman protest movements and humane civil society responses, initiated to trace-out the roots, manifested and latent issues associated with criminalization of social behaviour. A critical approach to the Bill, in its final shape, unfolds the paradigm shift in approaching the sexual crime, its constitution and consequences to the individual, family and the larger implications for gendered orientations of society. The Bill made a systematic attempt to measure the multiple forms of sexual actions, behavioral practices. A It widens the scope of condemning sexual harassment which would include physical and verbal actions and physical contact. It also framed those public servants such as police and security officers /and staffs who fail to recognize the complaints of victims. Acid attacks, stripping and damaging the body of women is also subject to severe punishment. Monitoring of a woman's activities online is also subject to punishment. A The Bill recognizes that all the sexual actions against 18 year old girls are recognized as sexual crime and rape. It also recognizes the attempts to intrude the private spaces of woman.
The Bill made a systematic attempt to measure the multiple forms of sexual actions, behavioral practices. A It widens the scope of condemning sexual harassment which would include physical and verbal actions and physical contact
A sociological analysis of the document implies that it's great step towards realizing the spirit of social democracy. The father of Indian Constitution Dr B R Ambedkar recognized the role of legal measures for the ensuring security and self respect of the marginal groups including women. He always maintained that legal aid is an essential step towards the making of gender democracy which is a precondition for participatory political democracy. The legal punishments are extremely important in feudal societies like South Asia where the patriarchal values question the legally guaranteed constitutional provisions. I argue that making of the stringent laws are extremely important, which assures the legal security and threatens the man who tries to partake in any form of sexual crime.A However, the implementation of the laws is very much important for bringing gender equality and social justice. I endorse the opinion of the Home Minster, S K Shinde who said that "the bill is not against men, but it is the Bill for the protection of one's mothers and sisters". In order to make India rape-free, the state, civil society, media and educational institutions have to play a critical role in generating critical consciousness among men about consequence of sexual acts and the need to inculcate the culture of respecting woman. On the other hand we have to create positive conditions for women for making use of the provisions of anti rape bill to assert the self- respect and participate equally in diverse spheres of society at par with men.
The crime of 'Rape' comes back!
The 'Rape' made a comeback with increased punishments. A Law of Sexual Assault, a gender neutral offence drafted in Ordinance now becomes law of rape, an offence by man against woman against her will. Justice J S Verma's recommendation to retain nomenclature of rape,very well known to the common man, was finally accepted by the Government and Loksabha. But Justice Verma also recommended to retain crime of rape in addition to gender neutral definition of 'sexual assault', which was ignored. The gender neutral 'sexual assault' which figured as a major change in Criminal Law (Amendment) Bill, 2012 and Ordinance 1013 has been removed in the latest bill. Now there is no possibility of misuse of the provision of rape by woman against woman, but the boys became vulnerable to be sexually assaulted by dominant man, and girls by powerful woman without any legal recourse as that conduct was not criminalized in this new criminal law. The state ignored to protect men and women from the sexual assault by same sex. Another major change compared to cabinet's draft is raising the age of woman to 18 to consent to sexual intercourse. With this, intercourse by a man with woman with or without her consent when she is under 18 years, will be a crime of rape. Had 16 years was retained, the girls between 16 and 18 would have been very vulnerable.
Now there is no possibility of misuse of the provision of rape by woman against woman, but the boys became vulnerable to be sexually assaulted by dominant man, and girls by powerful woman
It is interesting to note that MPs talked about 'stalking' and recalled their experiences. One responsible MP apprehending misuse of provisions of new 2013 bill passed on March 19 to harass male members, said that all of them (MPs) were stalking behind 'girls' during their youth. A criminal case can be slapped if a man stalks a woman, what kind of a law is this, asked the MP. It is sad that without properly reading and understanding the bill they use precious Lok Sabha debate to oppose the reforms of criminal law of rape. The 'stalking' proposed to be criminalized is this: 354 D says, 'Any man who follows a woman repeatedly despite a clear indication of disinterest by such woman or monitors the use by a woman of the internet, email etc commits the offence of stalking'. It also has a proviso saying if someone follows to prevent or detect a crime or pursued under any law or when such conduct was reasonable and justified it is not stalking. It is reduced to 'bailable' offence, and its second repetition will be a non-bailable offence. We do not know whether that MP or his colleagues have committed such kind of stalking. According to a survey 7 per cent of legislators now in India are facing criminal charges of rape or sexual offences. It is a wonder that sill, the law of rape is reformed in great speed. Along with non-registering of complaint of sexual assault, the non-treatment of victim by a doctor is also criminalized by the new bill. The new law contains several required reforms and thus it should be used effectively to protect the integrity of women.
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