Correcting Inconsistencies – A response to Anusha Rizvi and Manisha Sethi: Rebecca John

Guest Post by REBECCA JOHN

(Rebecca John is a Senior Advocate at the Delhi High Court)

This is in response  to some popular misconceptions about the 2013 amendments relating to sexual offences against women and some of the issues raised by Manisha Sethi and Anusha Rizvi  in HardNews, (Confronting Certainties, posted on the Hardnews website on March 9, 2014)

1) Suo moto action by the police leading to the registration of an FIR:
There is no requirement in law that an FIR  must be registered only on the complaint of a victim. If a police force  receives information  about the commission of a  cognisable offence , it can register an FIR on it’s own. This is not the first time this has happened, almost all CBI cases are registered on ” source information ” and not on actual complaints made by aggrieved persons.
 
2) Bail in non-bailable offences of a serious kind is not usually granted:
Let us not trivialize the offence of rape and treat the dismissal of a bail plea as the worst kind of crime. Pretrial detentions are the rule in India – so if we want that practice changed, and I certainly do, let’s start with all under-trials and lets not  just shed tears  for the rich and powerful and pretend that this is an unusual occurrence. Please come to courts and see how the system works .
 
 
3) Muzzafarnagar Rape Cases:
Activist women lawyers have filed a petition in the Supreme Court- which is pending- on the basis of which a fresh FIR has been registered. Compensation has been asked for, [and a] transfer of  cases out of UP has been sought. The case is still pending, Vrinda Grover is fighting a courageous battle on behalf of the victims.
 
4) Statutory Presumption of Consent:
There seems to be little understanding of the law: The following amendment was made in the Indian Evidence Act in 1983, when a statutory presumption was introduced. It has been on our statute book for over 30 years:
 
“114A- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub section 2 of section 376 of The Indian Penal Code, where sexual intercourse by the accused is proved, and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before court that she did not consent, the court shall presume that she did not consent.”
 
The burden of proof did not shift in 2013 and in any case all statutory presumptions are rebuttable presumptions.
 
5) The expanded definition of rape:
It was a long standing demand of the feminist movement in India and several Law Commission reports endorsed the demand that “it is necessary to include under the new definition not only penile penetration but also penetration by any other part of the body..” [See 172nd law commission report of 2002]. The sexual offences Act of UK 2003, sentences a person to imprisonment for life for “Assault by Penetration – penetration of the vagina or anus with a part of another person’s body.” For a similar offence, the Criminal Code of  Canada hands out a maximum punishment for a term of 10 years; ditto South Africa.
 
 
6) Minimum Sentencing:
The pre 2013 amendment section had a problematic proviso, which allowed a court to reduce the sentence “for a term less than 7 years” for offences falling under section 376(1) and “for a term less than 10 years” for the aggravated offences falling under section 376(2), for ” special and adequate reasons.” Research showed that courts were misusing this section and were giving no reasons for reduction of sentence. The new law therefore, took away the proviso.
 
 
7) Some of this outrage against the new law ( which I did not draft) , is based on ignorance – most opponents have not witnessed a single rape trial or seen how survivors are brutally treated in and out of court. An academic theoretical critique masquerading as an in-depth understanding of the subject is unacceptable when you have little or no practical knowledge.
 
 
8) So many women commit suicide after they are raped. Do we cry or take responsibility for our collective failure to address their grievance?
 
 
9) Finally as a criminal lawyer, I would really welcome moving beyond these high profile cases: they are in court, let the courts decide. It appears articles like these are designed to achieve the exact opposite: To keep on talking about these cases till everyone is convinced there are serious problems with the law, that feminists lost their head in 2013, and that behind every high profile case there is a grand conspiracy against the accused. Please let’s stop.

3 thoughts on “Correcting Inconsistencies – A response to Anusha Rizvi and Manisha Sethi: Rebecca John”

  1. And here’s Vrinda Grover’s interview in in Outlook on the panic about the new rape law now that “the law has come too close to home… As long as it was the people living on the fringes of society, the slum-dwellers, migrant workers, domestic helps, we couldn’t care less”.

    This law has barely clocked a year. We have not seen how it has worked and we don’t have enough data yet to review the law. Is the law harsh, or is it being abused or misused, we don’t know. Really, a review of a legislation can’t take place because one high-profile upper-class man gets arrested for rape. That’s not, to my mind, a rationale for research, academic scholarship or for any legal review of the case. The motivations for everybody suddenly asking this question and even using totally misplaced and misconceived words like ‘draconian’ is coming from the fact that the law has come too close to home now. As long as it was the people living on the fringes of society, the slum-dwellers, migrant workers, domestic helps, we couldn’t care less. In fact, if anybody was objecting to the death penalty for rape, it was in fact the women’s groups.

    I have always maintained that law is a very small answer to the bigger problem of sexual violence that we have. There are multiple other engagements we need to develop, including conversations in schools, society, everywhere. But why has the panic about this law set in suddenly? I’d like to know that when amendments were taking place and there was a robust public debate around them on a daily basis—unlike many others, this law was amended in full public glare—we were articulating clearly what we wanted in the law. The Verma Committee clearly put it down in writing. Most people applauded the change. In the last one year, sexual harassment charges have been levelled against people in very high offices. So suddenly, it appears that the law can be applied across the board. But that’s what laws are about, they are equal to all.

    I think that after the Nirbhaya case, women are reaching out for justice. So far, this violence was taking place undercover, but now they have the strength to speak out. And so the panic has set in. The law has recognised sexual violence in all its forms. If you were to push your tongue or fingertips into a woman’s vagina without her consent, prior to the amendment in 2013, it would have amounted to outraging the modesty of a woman, a low-level crime, a bailable offence carrying a minor sentence. Everybody was fine with it. But now, women are saying, ‘It’s my body, my right, please don’t have anything to do with it without my consent’. Penetration by penis is a patriarchal framing of the law. If a man pushes his fingers or a bottle in, can it be any less traumatising than a penile penetration? So, why should there be a gradation? If we are looking at it from the perspective of women’s bodily integrity, this is the only framing of the law that you can have. The law has just broken down sexual offences into many parts and sentencing moves accordingly depending on the gravity of harm and crime—a rationale flowing through the Indian penal code. This is the norm also across the world. India has not done anything bizarre. Look at the Sexual Offences Act of 2003 in UK—it actually gives life imprisonment for any kind of penetrative sexual assault by any part of the body or object—whet­her it’s a penis, finger or a stick.

    The sentence says seven years and in the case of Tarun Tejpal, it’s an aggravated rape because, by his own admission and by the statement of the complainant, he was in a position of dominance, trust and authority having known her father, as well as being her boss. These are statements of fact. The law has expanded the coercive circumstances to include these categories. Nothing dramatic has happened now, but everyone is getting very anxious. I’m very puzzled at the high level of anxiety from men in all professions. Is it really that men are doing this so rampantly that they are suddenly in panic mode? That they have been putting their body parts into women without their consent? In that case I have a word of advice to them: now this is the law, don’t do it, and if you do it, you will be arrested. And if the courts deem it fit, you’ll be punished. That’s a hard-won reality. The new law just clarified what consent meant. It said there has to be an unequivocal, voluntary agreement by word or gesture. In the case of Tarun Tejpal, the victim is saying to him, ‘Don’t do it, stop it’. How can that message not go across? If you continue to do it, then I’m sorry, it’s a crime.

    The problem is, men don’t know how to hear no, they don’t think women have a right over their bodies. But women will now assert themselves. If that’s going to create trouble, let it. If there is confusion and chaos, then that is the way forward. To a saner kind of stability.

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  2. This is hardly a response. It barely tackles the questions raised in the original article and is merely some legal rhetoric thrown by a senior advocate. The original article asked questions as to whether actions of the media in these high profile cases are justified, and whether we should be encouraging a scenario whereby we assume the guilt of a person even before the court does. My learned friend points to a presumption of non-consent, but that is not tantamount to allowing people to prematurely call someone a rapist despite it being only at the allegation stage. My learned friend missed the entire point of the article, and responded only with empty rhetoric. Even though the original article looks at only a couple of high profile cases, the point remains that even celebrities are entitled to justice. Please dont point out other cases of injustice to sweep under the rug the fact that this too is injustice.

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