Are our laws protecting women from violence too weak?

When India emerged as the 4^th most dangerous place in the world (according to a survey by Trust Law) in 2011, it left many astonished and unsurprisingly, defensive.

But only a glance at the papers, the buzz on Twitter or just a look at the surroundings from the protective glass tinted windows of our homes, offices or cars gives us enough impression of the fact…yes, FACT that India – whether the streets or homes, has dangerous prohibitions for who they acknowledge as the “weaker sex”.

Tradition and patriarchy are so strongly rooted in our economy, government, cultural practices, media and our justice system. Although efforts towards changes must be made simultaneously at all levels using all kinds of mediums and approaches, one cannot ignore the flow of top down policies and influences.

Here we're referring to the laws and judiciary system in India. There are many section codes in the Indian Penal Code that have been in place since the British Raj. Only recently and after much debate and struggle was the IPC section 377 revised, that previously criminalized intercourse between consenting adults of the same sex as “unnatural” in the same category with children, animals and inanimate objects.

Indian Penal Code Section 375

Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

First.— Against her will.

Secondly.—Without her consent.

Thirdly.— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

Fifthly.— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.— With or without her consent, when she is under sixteen years of age.

Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

Indian law on rape does not recognize ‘marital rape’ under section 375 but under the Protection of Women from Domestic Violence Act (2005) where the terms of punishment are comparatively far milder.

Indian Penal Code Section 354

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

IPC section 509

Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

The language used in this section code “modesty of a woman” is Victorian and archaic and the terminology confusing, ambiguous and misleading for offenders to use to their advantage with accusations that centre on the ‘character’ of a woman i.e. unrelated to the case. The simple logic that trickles down from this is that a woman either known (or falsely projected) to be promiscuous (i.e. in the Indian definition a woman who keeps sexual relations out of wedlock) cannot be ‘raped’. Hence, the sexual intercourse did not happen without consent as “she is so prone to it”.

The Supreme Court of India has, on various occasions, elaborated on what modesty of a woman means. According to the apex court,

• Modesty is a virtue which is inherent to a female owing to her sex;
• Modesty is an attribute associated with female human beings as a class;

However, there have been proposals for revision as a part of the Criminal Laws Ammendment Bill 2010, where the sexual assault will also cover crimes like sodomy, fingering, insertion of foreign object and other similar offences which do not come under present definition of rape, sources said. The proposal has also been made to make the section codes ‘gender neutral’ so that parts of it can be made liable to a person of any gender. The provisions can be imposed on sexual crimes inflicted on women, men and children thus broadening the reach.

More recently in 2011, the Maharashtra State Government proposed amendments over IPC sections 354 & 509 to increase the punishment and make them non bail-able offenses. This came in the public pressure of the media publicized case of the twin murders of Keenan Santos and Reuben Fernandez at Andheri, Mumbai over a scuffle that broke out due to their girlfriends being eve teased.

It is true that the implementation of the law and improvements in the system will go a much longer way in curbing violence against women and instill a greater sense of security among women in India. But the system and the policing can only improve from the roots i.e. if the laws are up to date and progressive, lesser scope of ambiguity in the charge sheet for arrests and manipulation in court trials.