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.