The Union Cabinet has approved the introduction of the Criminal Law (Amendment) Bill, 2012. Lawyers Collective welcomes certain changes proposed in the Bill like widening the definition of sexual assault to include non-penile penetration and inclusion of offences like acid attacks, for which people have been campaigning for decades. However, there are certain major concerns with the Bill in its present form. The preliminary objections are provided below. However, Lawyers Collective will continue to engage with the Bill and do a further more detailed critique of the same.
I. Comments on the Proposed Amendments
i. Amending Clause (3) of the Bill: Creation of new offences of hurt by throwing or administering acid and attempt to throw or administer acid under Sections 326A and 326B respectively
Lawyers Collective welcomes the addition of this new offence of punishing the perpetrators of acid attacks. While the proposed amendments make both the perpetrator and the survivor of acid attacks gender neutral, i.e., it could be a man, woman or a transgender person, Lawyers Collective Women’s Rights Initiative (hereinafter ‘LCWRI’) is concerned that having a gender neutral provision on the acid attacks would dilute the stringency of the law and not reflect the gendered nature of the crime.
In LCWRI’s view, acid attacks should not be a gender-neutral offense. The pattern of acid attacks in the last couple of years has shown that the survivor is mostly a woman and the perpetrator a man and acid is administered/thrown with the aim of disfiguring the face and causing other bodily injury to the woman and thereby perpetuating the exercise of power by the man (who is usually spurned by the woman). The proposed section, if it remains gender neutral, will refuse to acknowledge that these attacks are gendered attacks and that there is a systematic targeting of women. While LCWRI agrees in principle that such attacks also occur on men as well as sexual minorities including transgender persons and gay men, however studies in India have suggested that a pattern of systematic acid attacks on women by men reinforce the gendered nature of the offence where the act is committed to control the other’s sexuality. Ignoring this clear pattern of targeting women by attempting to control their sexuality through acid attack will weigh much against the clear jurisprudence of acid attack that has evolved over the last few decades. It is submitted that Section 357A of Code of Criminal Procedure (CrPC) can provide compensation generally and can be secured by anyone who is a victim of an offence. It is also submitted that there are clear provisions in the Indian Penal Code relating to Grievous Hurt (Section 325). These existing provisions of the Code therefore take care of the concern of the victim being a man or a sexual minority. LCWRI strongly feels that this settled gendered nature of acid attacks must not be diluted by making the provision gender neutral for the survivor. Hence, LCWRI strongly recommends that in dealing with the offence of acid attack, the perpetrator ought to be gender specific (man) and the victim gender specific (woman) as well.
On this issue, there is a divergence of opinion between the two units of Lawyers Collective and the Lawyers Collective HIV/AIDS Unit (hereinafter ‘LCHAU’) has a different view. LCHAU agrees that while the perpetrator of an acid attack could be gender specific, i.e., only applicable to males, it strongly recommends that the survivor has to be gender neutral and any person should be able to claim relief under the law. This is particularly relevant in case of transgender persons and gay men who are often victims of hate crimes, on account of their gender identity or sexual orientation. Though studies in India do suggest a pattern of systemic acid attacks on women by men, in order to control the former’s sexuality, one cannot rule out the possibility of the gendered nature of crime surfacing in same sex relations and amongst transgender persons. In fact, there have been cases of acid attacks on a young boy in Pakistan, on a man and his girlfriend by his wife in Cambodia, and on a gay person by his former boyfriend in Philippines.
In India, sexual and physical violence against transgender persons by police, goondas and families is entrenched as evident in several studies documenting the same. Any law reform purporting to protect marginalised groups or to safeguard against physical or sexual violence has to take into account the concerns of transgender persons and provide them adequate relief.
It is further noted that these amendments are taking place at a time when the State is increasingly moving away from the binary understanding of gender as man and woman and acknowledging the gender identity of transgender persons through administrative actions. The Central Government has now allowed the inclusion of ‘Other’ gender, apart from ‘male’ and ‘female’ in passports and voters’ identity cards, thereby giving legal recognition to the gender identity of transgender persons. Besides, the judiciary has also come out in support of the rights of transgender persons.
It is feared that if the survivor of acid attacks is made gender neutral, then it would weaken the rigour of the law. When the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) was made gender neutral and renamed as the Immoral Traffic (Prevention) Act, 1956 (ITPA), there were similar apprehensions that the severity of the law would be compromised upon. These fears have been proved to be unfounded, since in the last nearly 25 years, ITPA provisions have neither been watered down nor have they been rendered weak vis-à-vis women victims of trafficking.
In the experience of LCHAU, though gender-specific law like the Protection of Women from Domestic Violence Act, 2005 has gone a long way in advancing women’s rights and protecting women from domestic violence, it has not benefited the transgender women and transsexual women, who face appalling physical and sexual violence at the hands of their family members on account of their gender identity.
In light of above, LCHAU recommends that the proposed Section 326A and Section 326B dealing with acid attacks should remain gender neutral in terms of the survivor, while it could be gender specific in case of the perpetrator.
ii. Amending Clauses (4) and (6) of the Bill: Changes proposed in Section 354 and Section 509 of the IPC
Lawyers Collective agrees with the suggestion made by certain groups for the removal of the language of ‘outraging the modesty of a woman’ in Section 354 and replace it with ‘‘violating the bodily integrity of the woman‘. It is based on the rationale to broaden the scope of the law and make it a graded offence to cover cases of even humiliation like stripping, disrobing, tonsuring, etc that are not necessarily linked with sexual intent. Lawyers Collective further recommends:
a) Either deletion of Section 354 and merging offences under the section with Section 509 to cover all non-penetrative acts as well as acts not involving physical contact.
b) Or keeping Section 354 and 509 separate, for Section 354 to include cases of non-penetrative sexual assault like stripping, parading naked, molestation etc. Section 509 can be amended with the language of sexual harassment to include blackmailing, stalking, harassment without involving physical contact.
Most importantly, Lawyers Collective recommends that the protection of this law under Section 354 and Section 509 of the IPC should be available to all and not just restricted to women, i.e., the words ‘outraging the modesty of a woman’ to be replaced with ‘violating the bodily integrity and dignity of a person’. While the perpetrator could be gender specific (i.e., male), the survivor/victim should be gender neutral, i.e., man, woman or a transgender person. As mentioned above, transgender persons are victims of daily harassment, extortion, blackmail, verbal abuse and humiliation and ought to be included in the ambit of the proposed law on preventing violation of bodily integrity.
iii. Amending Clause 5: Changes proposed in Sections 375, 376, 376A, 376B, 376C and 376D of the Penal Code
Lawyers Collective welcomes the proposed amendments to bring in provisions on sexual assault that include non- consensual penile- non-vaginal sexual acts, in order to address the lacunas in the current rape laws of India. The proposed law seeks to make both the perpetrator and the victim of sexual assault to be gender neutral.
However, Lawyers Collective feels that the format in which gender neutrality in sexual assault is being proposed is hugely problematic. Gender neutrality will be a convenient cover for the patriarchy embedded in the operation of our courts and law, weighing heavily against the woman in trials. Gender-neutral laws can only work in a structurally equal society and ignoring the structural inequality rooted in patriarchy, and making an offense like sexual assault gender neutral will only work against the woman victim in rape trials. Therefore, Lawyers Collective strongly recommends that while the survivor in cases of sexual assault can be gender neutral, the perpetrator in such cases has to be gender specific, i.e., only a male.
It is noted that one can explore whether the definition of sexual assault should cover both penetrative and non-penetrative assault and include non-contact offences like stalking, flashing, parading naked etc.
Further, there have been concerns that the words ‘sexual purpose’ used in the definition of sexual assault in the proposed Section 375 (a) are vague and ambiguous and have no meaning in law. Instead, suggestions were made that the words ‘sexual intent’ should be inserted. Lawyers Collective recommends that the term ‘sexual purpose’ used in Section 375 (a) should be changed/deleted/reframed because sexual assault notionally is about ‘power’ and not ‘purpose’ and even if ‘intent’ is substituted for ‘purpose’ we beg to reiterate that in cases of sexual assault, the ‘intent’ is always dominance to perpetuate the position of power. Also, proving sexual ‘intent’ in trials will be more difficult and result in more acquittals, allowing the man a defense of lack of intent. It is submitted that intention should not be an element of crime of sexual assault and the act of sexual assault, with or without intention, should be sufficient enough to convict the accused under the proposed Section 375.
Concerns have also been raised that the phrase ‘being in a position of economic or social or political dominance’ in Section 376 (2) (i) of the proposed Bill is too broad in its ambit as well as vague and is liable to be misused. There is no current legal definition of economic dominance or social dominance or political dominance. Since the penal law has to be clear and precise in its prohibitions, one has to strictly define the element of socio-economic domination in the context of aggravated sexual assault. Further, dominance should not be restricted only to social, economic or political but could be broader also.
Lawyers Collective recommends that the words ‘undue influence’, which have a specific meaning in law, should replace the words ‘being in a position of economic or social or political dominance’. The words ‘undue influence’ are wide enough to cover any form of dominance and are capable of legal interpretation too. The amended Section 376 (2) (i) would now read as:
i) being in a position of undue influence, commits sexual assault on a person under such influence;
II. Suggestions for amending other provisions of the Indian Penal Code, 1860
i. Removal of Section 377 from the Indian Penal Code, 1860
Section 377, Indian Penal Code (hereinafter ‘IPC’) criminalises all penile – non vaginal sexual acts under the vague ambit of ‘carnal intercourse against the order of nature’. But the prohibition under Section 377 applies only to sexual acts between men and between men and women, since it proscribes penile – non vaginal sex. Sexual acts between women are outside the domain of Section 377, IPC.
In July, 2009, the Delhi High Court had read down Section 377 to exclude consensual sexual acts of adults in private from its purview, thereby decriminalizing adult consensual sex between men. The High Court read down Section 377 on account of concerns relating to child sexual abuse and non-consensual sex between adults, which the Petitioner, Naz Foundation (India) Trust, had itself kept in mind and accordingly prayed for reading down the said law. This decision was appealed against in the Supreme Court of India but the High Court judgment was not stayed. In February-March, 2012, final arguments took place in the case and the Supreme Court has now reserved its judgment.
The Parliament has now passed the Protection of Children against Sexual Offences Act, 2012 in May, 2012 that seeks to protect children from sexual assault and sexual harassment, amongst others and provides a comprehensive child-friendly redressal mechanism to deal with such offences. After the passage of this new law, the issue of child sexual abuse is covered under this law and Section 377, IPC becomes redundant in this regard.
Further, the Government is currently considering certain amendments to the IPC. The proposed Criminal Law (Amendment) Bill, 2012 seeks to replace the current provisions on rape in the IPC (Sections 375- 376D) with the provisions on sexual assault (Sections 375-376B of the Bill). The definition of ‘sexual assault’ includes penile-vaginal penetration, penile-non-vaginal penetration and penetration with an object, amongst others. It is important to note that the proposed provisions on sexual assault would cover non-consensual sex between same-sex partners or between men and transgender persons.
Though the proposed amendments are gender neutral in terms of both the accused and survivor, this will hold true even in cases where the survivor is gender neutral but the accused is a male, as suggested by some groups in India. The Government itself had admitted that Section 377, IPC was primarily used with regard to non-consensual sex between adults and to address child sexual abuse. Accordingly, Section 377, IPC in its current form becomes superfluous and serves no purpose, since these concerns are now dealt with under the above-mentioned respective laws, which have been specifically enacted to cover cases of sexual assault and child sexual abuse, with clearer intent and precise definitions. Section 377, IPC is thus rendered redundant and ought to be repealed. It is an established principle of law that reason is the soul of law and when the reason of any particular law ceases, the law itself becomes unreasonable and should cease to exist.
In light of above, Lawyers Collective recommends the deletion of Section 377 from the IPC and the Criminal Law (Amendment) Bill, 2012 should reflect the same.
ii. Need for a definition of Consent
LCWRI thinks that since the whole issue of sexual assault and its trial in its current form rest on the issue of consent, the routine practice is to bring in evidence that woman’s testimony is not reliable mapped by ‘lack of physical injury’. ‘conduct of the woman’, ‘her character’. Hence we state that given this deplorable circumstance of ‘rape trials’, a definition of ‘consent’ should be laid down reflecting that the onus should not be on the woman to prove that she did not consent or that the sexual assault happened against her will. Hence, there ought to be a definition of consent.
On this issue, LCHAU again has a slightly divergent view. LCHAU is concerned whether we need to have a definition of consent in the proposed amendments to the Penal Code. It is noted that both the elements of consent and the person’s will are mentioned in the proposed Section 375 of the Bill and have distinct meanings in law. If there is a definition of consent vis-à-vis sexual assault and not for willingness, then what would be the implications? Further, one has to read consent in the proposed Section 375 along other provisions of IPC that mention consent, including Section 90, IPC, which provides that consent, if given under fear of injury, or under a misconception of fact, is no consent in the eyes of the law. These elements of fear of injury or misconception of facts are encompassed in the proposed provision on sexual assault and reading it in conjunction with Section 90, IPC would give it a specific legal import.
On another note, LCHAU has been actively involved in the area of sex work law reform, where consent is a controversial subject both in law and in political debates. LCHAU is concerned that a hasty inclusion of consent in the context of sexual assault may have legal ramifications, beyond what we may have thought of. Therefore, we need more discussion and thinking before we propose any definition of consent.
iii. Non-penetrative sexual offences like molestation, sexual harassment, stalking, cyber stalking, stripping and parading naked need to be codified as crimes and the same should be defined.
iv. Age of Consent
The bill raises the age of consent from 16 to 18 years. Lawyers Collective agrees with the suggestion made by other groups that the age of consent should be reduced to 16 from 18 (Section 375) to protect minors from criminalization of consensual sex. The age should remain 16 so as to give young persons the right to exercise their sexual autonomy. In a culture of communal and moral policing, raising the age of consent to 18 years, gives the parents of young people from different castes or communities who fall in love and elope to get married an easy tool to prosecute them for choosing their partners outside their castes/religions.
v. Deletion of Marital Rape
Lawyers Collective recommends the deletion of the exception so as to make marital rape an offense. The clause is violative of the equality and non-discrimination guarantees of the Constitution. Also, the sentence for a man who rapes his wife during separation should not be 2-7 years but 7 years to life imprisonment as in other cases of rape/sexual assault.
vi. Some Procedural Concerns
The Bill in its present form lacks clarity in terms of procedures:
a. Procedure for medical examination of the victim ought to be clearly laid down. The present position is that bodily evidence gets the most importance and little or no care is provided to treatment of the survivor. Therefore, documentation and treatment ought to receive the priority. Two fingers’ test should be strictly prohibited. LCWRI has already collaborated with CEHAT on medico-legal documentation and forensic evidence and a detailed recommendation on the same has been already submitted by CEHAT.
b. There isn’t any clarity nor has there been any special provision to ensure access to justice for victims who are persons with disabilities.
c. Victim/witness protection programme must be introduced.
vii. Clear Guidelines for Media
The bill must address the insensitivity with which the media often reports incidents of sexual violence as evidenced in the Pinki Pramanik case as well as in the recent Guwahati ‘molestation’ case where the media allegedly was the perpetrator as well. There must be clear provisions to address such kind of issues and the impunity with which media violates the survivor’s right to privacy. It is submitted that although the Indian Penal Code in 228A, prohibits the disclosure of identity of the victim of certain offences, including that of Section 376, Section 376A, Section 376B, Section 376 C, Section 376D when such offence is ‘alleged’ or ‘found to have been committed’, the wording of the said section is ambiguous as far as ‘alleged’ is concerned, since the section seems to kick in only when an allegation of the offence is made in the FIR. Media also seems to interpret alleged as alleged in an FIR or when charge sheet is framed, and not when the offence has already taken place and before the registration of FIR. There ought to be strict rules to prohibit disclosure of the identity of the victim right from the moment the incident/offence has taken place even if at such time FIR hasn’t been filed. The Guwahati incident shows more rigorously why such clearly laid down law is required. In the light of this, Section 228A should be clarified and amended.
As reiterated, these are few of our preliminary concerns. We would like to hear about your comments and suggestions on the same as well. Do not hesitate to shoot us a mail, if you have any comment/suggestion or opinion about the Criminal Law (Amendment) Bill 2012.