Rape of the Law

Hey people .. guess its a long time since u have seen me here!!... u gotta keep scrollin down for quite some time to see my last post..anywyz.. if you guys are eagerly waitin for a post of my own .. am really sorry to have disappointed you again!!... ahem!...gettin a bit more serious now.. this post is a majors article by one of my friends Lakshmy who is doing her journalism in ACJ.. she writes quite some articles and writes them really well.. a few of them have been published in THE HINDU newspaper as well..

This article i thought was really good and quite appalin tht has made me post it here... have been tellin her to create a blog for her own, but she is one lazy dog .. so i thought i would post it here in my blog.. The amount of research she has done for this project amazes me .. people even if it is quite big please be patient and read it fully ...

here goes...
RAPE OF THE LAW

The rape of the law as in the rape of women, takes place in a few sentences or ancillary statements of the law books, as to go unnoticed. A brief review of the current state of laws on rape in India, would initiate any person to effect a mammoth change

Where it all starts

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If there is a problem that needs to be attended at the root, the inadequacy of laws on rape is one. Currently, Section (375) of the IPC (Indian Penal Code) recognizes rape to have been committed, only if there is an instance of penile penetration. On the surface, the definition might appear comprehensive and logical enough. But if one were to look into most cases of sexual assault being committed these days, one would come across numerous instances where ‘foreign’ objects are inserted into the woman’s vagina. In both cases (penile and object insertion), there is a violation of the woman’s body (when performed without the woman’s consent). Insistence therefore, on penile penetration for recognizing a case of rape appears unjust.


Ms. Hema Ramani, a practising lawyer cum head of ‘Sriram Vidyashram’ (a leading law entrance coaching center), states that, “Strictly speaking, any intrusion into a woman’s body should be termed rape, be it penal or object insertion. However, object insertions into a woman’s body are dealt under the ‘unnatural offences’ of the law. But having said this, the criminal law pertaining to rape needs to undergo a radical amendment”. Though the need for a redefinition of rape was brought to the notice of the Supreme Court in the PIL (Public Interest Litigation), ‘Sakshi Vs Union of India, 2004’, the court refrained from according any changes to the definition of rape.

Thriyambak Kannan, a practising advocate at the Madras High Court opines that, “ I really cannot gauge the reason behind the law’s insistence on penile penetration.” But he is quick to add that the rule of ‘strict interpretation’ followed by the law, does not prevent it from interpreting a statute according to the current scenario in a society. Though the Supreme Court didn’t rule in favour of Sakshi (an N.G.O) in ‘Sakshi Vs Union of India’, in another case involving the rape of an eight year old girl in ‘Madan Gopal Kakkad Vs Naval Dubey’, the Supreme Court acknowledged the severity of the crime of ‘child rape’ and punished the criminal even though the case was one of ‘partial penetration’. Apart from being bound by weakly constructed definitions, the lawmakers also undertake the unnecessary task of moral policing without stopping at making a distinction between a legal and an illegal activity.

The moral crisis

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It was quite surprising to note a recent survey on the sexuality of women.There was euphoric celebration of the new Indian woman who was no more the ‘Good Girl’. Though the ‘new age’ woman has seemingly arrived, the lawmakers still seem to hold a patriarchal and senile conception of a woman; as one belonging to a species expected to be chaste and virtuous. An unchaste woman is viewed with disdain and worth punishable.
Section 155(4) of the Indian Evidence Act however reads, "When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix (victim) was of generally immoral character”. This clause has never been amended even after a 145 years since the IPC’s inception.

Mr.Kannan though, explains that (while in no way dismissing the appalling clause) it is due to the constant abuse of law by anti-social elements that has forced the Apex Court to become weary of affecting changes in the law. In the recent sensational case involving National award winning director- Madhur Bhandarkar and aspiring model-cum actress, Preethi Jain, the latter had accused the former of propagating the ‘casting couch syndrome’. The case now seems to have taken an unexpected turn with Mr.Bhandarkar emerging ‘innocent’ and evidence pointing to Ms.Jain as having framed charges on him. Surprisingly, on reconsideration, Section 155(4) of the IEA, seems a thoughtful addition as, in cases such as the above, the only way for an innocent defendant to seek reprieve is to subject the plaintiff to the provisions of section 155(4).

However, the construction of this clause is to be considered against the inclusion of another clause in the IEA, viz section (54). The section reads, "In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant…” The issue here is, clauses such as these go against the very spirit and constitution of the law. If the law recognizes all it’s citizens to be equal before it, then it shouldn’t make a distinction between a ‘moral’ or an ‘immoral’ person.

‘Evident’(ial) Problem

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A rape case can see the light of trial (which usually takes place only after a few months), only if evidence such as semen, or cuts or marks is found in a woman’s body. Can one expect every raped woman to present herself before a police officer, soon after she has been assaulted? Ms. Ramani opines that, “ It is certainly not possible for every woman to approach a police station and subject herself for medical examination, immediately after the traumatic experience. Moreover, while filing a First Information Report, the victim would be required to answer awkward questions during cross-examination, a process, in my opinion which ‘rapes’ her again and again”. Most cases as it happens are eventually registered without the support of evidence. Mr.Kannan explains that, “It becomes extremely difficult for the law to initiate any action or move against the defendant unless some sort of evidence is found. Moreover, the greater the delay in filing an FIR (First Information Report), the more difficult does it become for classifying the case as one of rape. There have been many cases where delay in filing an FIR has been considered as ‘time spent for concoction’.”

Political-Personal Bindings

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In the recent Imrana case that involved the rape of a woman, personal laws were allowed to intervene in the crime as the victim belonged to a minority religion. But like most institutions, religion and it’s laws are the creation of hegemonic and chauvinistic interpretations. According to the tenets of the ‘Shariyat’, a rapist has to be stoned to death apart from the victim being divorced from her husband; but in the Imrana case, though the ‘religious heads’ saw it fit to impose the ‘fatwa’ on the victim (who was raped by her own father-in-law) they didn’t give a thought to executing the second part of the clause- of stoning the rapist to death. However, better sense has prevailed and the defendant has been convicted, though Imrana still faces censure from her community for not accepting her husband as her son!! according to the tenets of the “shariyat”.

In a multi-cultural country like ours, is a uniform civil code a necessary choice that we should all make? A proper codification and demarcation of a uniform civil code will allow a crime to be meted out with a proper treatment under the Indian Penal Code. A uniform civil code will ensure that a criminal prosecution takes place whether a criminal is a Hindu, a Muslim or a Parsi.

The Verdict

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Section 376(1) of the Indian Penal Code reads, " Whoever…commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve (12) years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to ten years or with fine or with both”.

The law therefore gauges the ‘degree’ and kind of rape and frames punishments accordingly. But if a rape is committed, it is referred to as an act of rape because there are certain intrinsic mental and bodily violations that one recognizes with the particular act. Is it not required then to treat all ‘kinds’ of rape as one, to accord one sort of punishment to a rapist? Because rape is a severe crime, more so in a society like ours. However ‘forward’ or developed our society grows to become, a woman’s ultimate function and achievement will still be considered as marrying ‘well’. In such a society, a raped woman is looked upon with disdain and pity, offering her no scope to resume a life of dignity and self-respect. It is very rare for the victims therefore to recover from the forced mental, physical and social trauma.

The inadequacy of laws on rape in India is too complex an issue as there are several dimensions viz ethical, moral, political and religious that are forced upon it. To consider and revaluate any one of these dimensions would be to enter an abyss. The debate seems far from resolved and the rape of the law continues.

LAKSHMY RAMANATHAN

jus to let out a small fact... this is the shortened version of her article which comes to around 3 pages in a word document... but the entire article comes to around 11 pages with more research.. more interviews... more references to the various sections and sub sections in the IPC...

people please leave your comments on the article .. and of course my introduction and conclusion ;-)