Need to review laws passed as knee-jerk reactions

Laws are meant to protect victims of crime and punish culprits. Statutes are also to act as deterrent to check offenders. But when laws are made as knee-jerk reaction to a particular incident or turn of events, they tend to fail the test of time or maintain the equity, balance and justice in society.

This is the sense that one gets after going through provisions of the Criminal Law (Amendment) Act 2013. The changes were brought in after clamour for tough action against the accused in the December 2012 gang-rape in a Delhi bus and subsequent death of the 23-year-old victim. While the changes with regard to acid attack and attempt to throw acid are gender neutral, all other provisions regarding stalking, voyeurism etc are to protect women.

Among others, the most critical change was raising the age of consent from 16 to 18 years of age. This has meant that any sexual activity among youngsters below 18 would result in boy facing imprisonment up to life just because the same constituted statutory rape. In such cases, consent of the girl does not matter at all. One can imagine the girl’s plight falling in love with anyone or god forbid, if she entered into sexual escapades. Raising the age of consent is also artificial and goes against the very human nature.

Let’s take a look at some of the other amended provisions. If one reads Section 354A(1) of the Indian Penal Code, one gets the feeling that it makes sexual relations between man and woman one-sided activity. Making physical contact and advances, a demand or request for sexual favours or sexually-coloured remarks would amount to offence of sexual harassment.

So, any initiative from man is punishable whereas the same from woman does not fall under the definition. If one takes an extreme view, it could be said that this provision treated man only as a machine without any desire or feelings. Another impact of the provision is that a man can act only at the instance of woman but cannot show his feelings.

The offences under Sections 354 and 354A(1) of the IPC required physical contact but there is certain extent of ambiguity. It makes difficult to distinguish between types and forms of physical contact, amounting to outraging modesty of woman and sexual harassment.

Notably, the experts also feel that offence relating to making sexual coloured remarks was already dealt under Section 509 of the Indian Penal Code. Similarly, Section 354B which was brought in through amendment in the penal law defined the offence relating to disrobing by use of criminal force or assault. This is again a gender specific Section, assuming easily a man cannot claim to have modesty or he can never be victim of such crime.

Gender-specific

Likewise, Section 354C (voyeurism) of the IPC is also gender-specific as only male can commit such as offence against women. But there is confusion with regard to another term ‘any other’ person at the behest of perpetrator as given in the provision. Whether any other person is male or female, who connived in the offence is not clear.

Again, the offence of stalking as mentioned in Section 354D makes it gender specific as the term ‘any man’ is used in the law. Meaning thereby, only man can be held guilty. Even at superfluous analysis, it is found surprising as well as immature to say that victims of stalking can only be women.

A provision given under Section 376C of the IPC enjoins severe punishment which could extend up to 10 years. It relates to sexual intercourse by a person in authority. This obviates the possibility of consensual sex between a person in authority and his subordinate. It had the probability of exploitation as females can exploit or blackmail their superiors by withdrawing consent after years being altogether.

The broad definitions of sexual assault under Sections 376C (by a person in authority) and 376E (repeat offender) of the IPC are found unreasonable. Since it is not onerous to prove first crime, the second also becomes less difficult to conclude. The punishment enjoined for repeat offenders is minimum life term till the end of the convict’s life or death sentence.

In the end, it could be concluded that laws, howsoever, wisely framed cannot make any provisions against all contingencies for all time. Further, laws are not ends in themselves but only the means for securing justice. Laws are not the only means to regulate society.

The aim of criminal law is that it should never come into play. But where there is society, crime will take place. Every society will have rules and regulations. Those rules will be breached. This, however, could be minimised through preventive measures, proper education and making children learn basic human rights.

And in the administration of justice, it has to be looked into that none should take undue benefits of the law. Justice must be done equally with victim as well as the accused. Since criminal laws are strictly construed as relating to life and personal liberty of person, any lacuna or loophole frustrates the entire objective of justice delivery system.

The film, India’s Daughter, trains an unflinching eye on the evil deeds of one day in December 2012, but its real service is in exposing wider prejudices. By going to the courts to stop it being shown, the Indian authorities reveal themselves to be unable – or unwilling – to grasp the connection between the two.

When the victim’s family was closely involved with the film, to get hung up seems perverse; it would make more sense if the real source of the objection was patriotic resentment at foreign film-makers shining an unflattering light on Indian society. But uncomfortable or not, it is a light that had to be shone. The BBC deserves credit for defying demands made in Delhi and bringing forward this urgent broadcast.

Editorial in The Guardian