SUNDAY 20 | JANUARY 2013
It is said that the best thing you can do is the right thing; the next best thing you can do is the wrong thing and the worst thing you can do is nothing.
With the history of a burgeoning culture and a vibrant tradition that has always venerated females, it is indeed a paradox that Indian society in the modern era has been pigeonhearted when asked to hoist the flag of women’s rights. We deluded ourselves when we tried convincing each other that society has progressed from the archaic notions of virility by citing fleeting examples of women who have been champions in all walks of life; ignoring the fact that such triumph was solely attributed to their grit, when they realised the obstinate nature of society, and not to the “ripened” mindsets of the community.
The fundamental problem is that the zeal of manhood has permeated into the sphere of law, which has made the law itself susceptible to bias. For instance, the lopsided law relating to adultery allows a man to sue the man who slept with his wife, but there is no law allowing a woman to sue another woman who slept with her adulterous husband. Such laws reinstate the antiquated ideas of women being a man’s proprietary rights and thus allow him to sue the person who “trespassed” onto his property. What is even more incredible is that such a law was not even a reflection of the state of Indian society, but was a consequence of what the colonial masters wanted to see Indian society as.
The definition of rape is surmounted by a legal vacuum. The definition of rape leaves much scope for a convict to escape from rape charges on the basis of mere technicalities. The 172nd Law Commission Report on the review of rape laws had famously sought amendment to Section 375 of the IPC that sought substitution of the word “rape” with “sexual assault” so as to widen the scope of the case and make it gender-neutral. It is ignominious that we are still continuing to use the antediluvian “twofinger test” that determines the elasticity of a vagina to ascertain whether the victim has had previous sexual contact even while technology is available to remedy the grey area that surrounds rape. The report also recommends the addition of another offence, that of “unlawful sexual contact” under Section 376(E) with a graver penalty for an act that was erstwhile covered under the tag of “outraging the modesty of a woman” and complimented by a milder penalty. The irony is that although these recommendations were made as long as 13 years ago, none of them have materialised and the current government has been in deep slumber, keeping the Criminal Law Amendment Bill pending for perpetuity now.
The involvement of a minor in the gruesome gang-rape case in Delhi has made us question the definition of a minor as it stands today. The Juvenile Justice Act considers everybody under the age of 18 as a minor, but this impression is far from the semblance of reality and this definition needs prompt change, especially for cases concerning sexual assault. An average “minor” is far more exposed to the world than he was earlier. Whether one speaks of his skills of comprehension or his ability to evaluate the consequences of his actions, they have only mellowed with changing times. It is, therefore, a pressing need that where the mental seasoning of a minor is such that he is in a position to carry out appraisals of his conduct and anatomise the modesty of his act, the law should not shirk from imposing liability on him. In this background the call for the revision of age of a minor from 18 to 16 as per the Juvenile Justice Act is perfectly justified.
Finally, we are the progeny of a society that has thrived on symbolism in culture as well as in mythology. The Indian people imbibe considerations based on what message is sent to them. As far as Indian culture and mythology go, the system of “dharma” has always enjoyed primacy and there were luminous distinctions between what is right and what is wrong in the form of “dharma” and “adharma”. Over the years, this distinction has been blurred not only because society started condoning acts of violence against women but also because the perpetrators were either unpunished or under-punished. For those who consider life sacrosanct, the death penalty is a necessary evil that ensures that potential perpetrators responsible for murders and other equally abominable crimes are met with an iron hand not only as a means of retributive justice for the miscreant’s acts, but also as deterrent justice that sets an example for society and reinstates the distinction between the “morally right” and “wrong”. A rape robs the woman of probably the most indispensable part of her being — her honour, and where the rape is such that it alters her life forever and dents her existence beyond redemption, death for such an actor is justified too. One cannot ignore a further ignominy which is heaped on a victim of a sexual assault by conducting the two-finger test. This is a primitive technique and has no connection with the objective of forming an opinion about the occurrence of rape. A better and scientific method is that of using a vaginal specula.
It is ironic that women in India today are reduced to the status of offended sexual bodies. Why has this country failed to accord the status of priestesses, as back in the ancient era, where women were allowed to hold proprietary rights and most importantly where manifestations of knowledge, wealth and wisdom have identified themselves with a female force? The law of a state is a but a reflection of its culture and what we see today is not a product of our culture but the ignorance of it. The social movement that has built around the Delhi gang-rape demands that the state should act consistently and not turn a blind eye towards sexual offences against women. Fate has dealt harshly with the 23year-old braveheart who became a victim of a gangrape and murder. It would be a missed opportunity if we still do not cause the larger change which the society is looking forward to. The writer is a Supreme
Court lawyer and a socio-political activist