constitution – Humans for Change

-Vidhit Verma

Rape has been considered to be an act usually committed against one sex and the laws in India certainly tilt towards woman rather than protecting every citizen and gender.

Despite expanding the definition of rape under the Indian Penal Code to include non-penile vaginal acts of penetration, the said definition continues to conform to a gender-specific notion of rape, based on a predetermined characterization of the victim-perpetrator framework on the basis of genders. Implicating a binary notion of gender, this results in gross injustice and it therefore, becomes imperative to adopt a human-rights-based approach in defining the offence of rape, and negate the role of gender in identifying the victims and perpetrators of an act of rape, and establish equity.
This argument may be pillared on a state’s obligation to not discriminate on the basis of sex, the recognition of transgender rights, and an assessment of the common grounds for opposing gender neutrality in Indian rape laws.It can be said that crimes against women in India have a lot to do with centuries of patriarchy and a skewed sex ratio.
However, the perpetrators often enjoy impunity at the risk of women’s rights and security.

In 2013, one of the most brutal and fatal gang rapes in New Delhi led to not only massive and supremely angry nation-wide protests, but also led to landmark reforms to the existing rape laws. By taking into account the gender and patriarchal attitudes in Indian society, the new laws reform changed the landscape of justice for women by taking a tough stand on crimes against women. In the aftermath of the Nirbhaya gang-rape and death, the Justice Verma Committee was formed in 2013 to review sexual offence laws.
As a consequence, Indian women can now file a rape charge online. Cops are duty bound to register a case immediately upon complaint. Rape remains the fourth most common crime against Indian women so these changes were necessary, and critical.To see the crime as merely a man violating a woman, as it currently is currently being seen, however, is an injustice to those whose story does not fit this ambit.
There is thus, still a great need for further change to India’s rape laws.

On the same idea, a private members’ bill has been introduced before the Rajya Sabha. This bill would introduce amendments in the criminal laws to make sexual offences gender neutral. Re framed language in sexual offence laws would aim to change ‘any man’ and ‘any woman’ to ‘any person’ – a step forward to make the laws gender neutral. “Men, women, and other genders can be perpetrators and also victims of these offences. Men, women and others need to be protected”.

In understanding the need for this change being pitched, one must first understand what exactly constitutes rape. International law has evolved from viewing it just as penile-vaginal to penile-orifice and then to penetrative-orifice, all within a non-consensual context. By the last legal definition, the physical violation with blunt objects undergone by Nirbhaya at the hands of her gang rapists would be classified as rape.It would by current Indian legal standards as well.
Yet, for instance, if there were to be such an act committed by a woman against a man or even another woman, it would not amount to rape. To be sure, it would be an assault-based crime of some form, but not rape. This, even though the victim would have been forcefully penetrated in a sexual manner by her assailants.The same result would also come about if the victim were a child, as the law would allow for a charge of sexual assault, but not one of penetrative sexual assault, which is codified as male-only.
Many parliamentarians and some activists argue that only members of one sex can rape and only the other can be raped, for rape is only ever patriarchal. The Indian laws are thus very limited in this regard, bringing to light this shortcoming.
Statistically with regards to the existence of both male and female survivors, the US’s Centers for Disease Control in Atlanta has estimated that 18.3% of American women and 1.4% of American men have experienced rape at some point in their lives. Both percentages are likely to be underestimations due to stigma attached to reporting the crime. Ideally, India would be able to provide its own numbers for statistical comparison.

However, given that rape by legal definition cannot be committed against men, there is no good way of determining just how many male survivors exist in India.Considering the argument that equity in a society is cardinal to its good governance, in addition to those discussed above, such a change and broadening of the definition of rape under Indian laws may also be deemed essential. What also need to be considered is that even though women suffer from such crimes in incomparable numbers, the law cannot turn a blind eye to the victims or the perpetrators of other genders.

In conclusion, the impulse to view the rape narrative as exclusively that of a man violating a woman does an injustice to those whose dismal stories and sufferings simply do not fit the mold that is easiest for us to understand and therefore,an imperative need to redefine norms of the society is felt which would help only if the laws are not made to favor any gender rather to determine the acts that constitute this heinous crime which could be committed against any person.

It was in 1891, during the times of immense struggle and hardship, when for the first time an Indian subject was charged with the draconian law of sedition. Jogendra Chandra Bose, the editor of a newspaper was pulled up by the then colonial government for criticising a bill introduced by the British Crown. Undeniably, this authoritarian law was used as an instrument to ingrain fear and terror in the minds of subjects and keep a tight rein on the activities of freedom fighters in order to further the British dominance agenda.

It is pertinent to note that the persons who were charged with this law during the pre-independence era are still remembered and celebrated today as the spirited freedom fighters who were not afraid of rising against injustice and dominance. In fact, Bal Gangadhar Tilak was charged by the offence twice and spent a total of six years of imprisonment for his articles in the Kesari. Believe it or not, but Mahatma Gandhi himself was also charged with this tyrannical crime. In 1922, Gandhi was taken to court for his articles of criticism in Young India magazine where he was extremely aversive to the idea of this law, and strongly denounced it by observing the following: “Section 124A under which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen.”

It is quite unfortunate that even decades after India gained independence, this illiberal law not only continues to exist but also thrives. In the recent times, we have seen some of the most absurd cases of sedition. The owner of a school got arrested for displaying a wrong map of Jammu and Kashmir, Divya Ramya got charged for it for tweeting that “Pakistan is not hell. People there are like us,” while the JNU row is a whole other story. Surprisingly, ABVP (Akhil Bharatiya Vidyarthi Parishad), the student wing of the BJP, even went ahead and filed an FIR for sedition against Amnesty International, a world renowned human rights organisation which has done immense work to promote the rights of the Indian citizens.

Another term which is doing the rounds is ‘anti-national’ which is repeatedly used to describe the persons charged with this law. Unfortunately, what the many users of this term are forgetting is the fact that there is a clear difference between being critical of the government and being against the nation. There is a dire need to understand that criticism is the biggest virtue which leads the nation into progress and advancement. Perhaps the remedy for the excessive and unrestrained usage of this expression may be another term called ‘tolerance’ and the much useful practice of ‘agreeing to disagree.’

An extremely important question that now arises, nearly a century and a few decades after the introduction of this law, is that what is the need of this law in the present times and why has it still not been repealed? Ironically, recent actions of the government with regards to Article 370 of the constitution indicate that the Modi regime is much keen on repealing ages old laws which seemingly have no requirement in today’s “new” India. It is indeed a perplexing situation in which one wonders why the statistics suggest a rampant increase in cases of sedition in the last few years. The joke that is going around is that in India, you can get arrested for liking a facebook post and even writing a blog (Hey there, CBI).

Interestingly, the makers of the constitution of India discussed the issue of sedition at length and various debates were carried out after which the word was dropped. However, it still remained a part of the Indian Penal Code which was originally drafted by the British. The law was opposed by the majority of the leaders of the newly independent Indian state as also many of them had suffered imprisonment under the same law by the British. Jawaharlal Nehru, India’s first Prime Minister, went on to say the following: “Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.” However, unfortunately, it still remains as a tool in the hands of the government which is repeatedly used to shut down voices of criticism and freedom while various other countries including the United Kingdom have already done away with it.

Today, the law is misused to exercise blatant abuse of power and is a bane for the freedom of expression of the citizens. Once charged with it, the accused loses his passport, is labelled and mocked by society and has to bear the high cost of litigation to defend himself.

I consider it a privilege, therefore, to be charged under that section.
MAHATMA GANDHI

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Tag: constitution

Gender Neutrality in Rape.

Sedition – A Slippery Slope