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Prime
concern: Anti-rape laws
Last
word: Pawan Bansal |
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An idea whose time is running out By Aditi Tandon
Law-makers and women’s groups are fiercely divided over the age of consent, marital rape, voyeurism and gender neutrality of sexual assault. There is fear of the Ordinance lapsing if it is not replaced with a Bill in six weeks of its promulgation.
Criminal
law amendments in respect of sexual assault continue to elude the nation as sharp differences persist on certain provisions of the Ordinance the President had promulgated on February 3 this year to address the issue. Considering the Ordinance will lapse if not replaced with a Bill within six weeks of its promulgation, the government is working overtime to iron out differences within the Cabinet and the political sphere on some landmark changes it proposes in the Bill vis-ŕ-vis the Ordinance. The Bill, which the Law Ministry has drafted, retains the term rape instead of sexual assault that the Ordinance had coined. The move is in line with the Justice JS Verma Committee recommendation on the subject and the aspirations of women’s organisations which protested the Ordinance for replacing the term rape with sexual assault and making the crime gender neutral, meaning women can also be booked for rape. The Bill seeks to correct a wrong, but it remains to be seen whether the provision of gender specificity of rape stands the scrutiny of the Cabinet and Parliament, considering several male MPs are for gender neutrality of sexual assault. Another contentious change in the Bill pertains to lowering the age of consent for sexual engagement from 18 years to 16 though the 2012 draft law introduced in the Lok Sabha and the February 3 Ordinance retained this age at 18. The alteration is expected to be resisted by Women and Child Development Minister Krishna Tirath who has maintained that the age of consent must be 18 in line with the definition of children under the Juvenile Justice Act that describes children as persons below the age of 18 years. The third debatable point is marital rape. Although the Verma panel argued for making marital rape an IPC offence, the Ordinance and the Bill are silent on the issue. Women’s groups favour the inclusion, saying rape is a rape whether outside marriage or in it, but within the Cabinet and political arena, there’s strong divergence of opinion on the issue. Fourthly, the introduction of new sexual offences, particularly voyeurism, has necessitated a debate on the possibility of their misuse. Information and Broadcasting Minister Manish Tiwari is said to have called for safeguards in this respect. The government must, by March 22, get the Bill passed in Parliament lest the Ordinance should lapse. Before the Bill can be introduced in Parliament, the Cabinet must approve it. Here’s a lowdown on the controversial points, the arguments for and
against them.
Age of consent The age of consent is the age at which a person’s consent to have sex is recognised as valid in the eyes of law. In India, the child marriage debate first led to the enactment of the Age of Consent Act in 1891 which raised the age of consensual sex for girls from 10 to 12 years. The 1983 criminal law amendments raised this age to 16 years and the Protection of Children from Sexual Offences Bill, 2012, raised it further to 18 years, arguing that once the law has defined persons below 18 years as children, the debate on consent for sex becomes irrelevant. For: Historically since sexual activity before or outside marriage has been considered a taboo for women, it is the age of marriage that mostly decides the minimum age for sexual consent in most countries. But by criminalising sex between children aged 16 and 18, the government will empower moral policing and encourage illegal abortions endangering the lives of teenage girls. “More and more young people are eloping and getting married not because they are physically and mentally prepared for the marriage but because marriage allows them to have legitimate sex. A criminal legislation can’t deter the young from engaging in sex. Will you put all consenting children in jail?” asks Bharti Ali of HAQ Centre for Child Rights, New Delhi. Women’s movement comprising over 500 organisations holds the same view, so do the Left parties. Against:
Lowering the age of consent will amount to legitimising child marriages. It will lead to innumerable teen pregnancies which our public health infrastructure is not prepared to handle and can put unsuspecting children to HIV risk. “In a country where schools don’t yet impart sex education, this debate is premature. We can’t ape the West blindly without thinking through the repercussions of such a move. Are 16-year-olds ready to understand their bodies and the consequences of sexual engagement? Already ‘honour’ killings are happening when 18-year-old girls elope with boys. Lowering the age would lead further abet such crimes,” Akali Dal MP Harsimrat Badal, a mother of teenage girls, says. Former National Women’s Commission chief Girija Vyas agrees that the move will give legitimacy to child marriages. She says it will push adolescent girls into early motherhood and harm their reproductive health. Anti-trafficking activists are also against the move. “Lowering the age will give an excuse to traffickers to further exploit illiterate rural girls. All they have to do is say the girl had consented to the act. Already a girl’s consent is a heavily misused provision in the anti-rape laws,” says Rishi Kant of Shakti Vahini.
Marital rape Marital rape is currently not recognised as an offence in India. Law Minister Ashwani Kumar says the government is open to persuasion on making marital rape a crime in the new Bill. He admitted to sharp differences of opinion on the matter within the government. For:
The Verma committee has argued for inclusion of marital rape as an IPC offence. Justice Leila Seth, committee member and former Chief Justice of Himachal High Court, says: “Exemption for marital rape stems from a long outdated notion of marriage which regards wives as no more than the property of husbands whereas marriage in modern times is a partnership of equals.” Former NCW chief Girija Vyas points out that as NCW chairperson she used to be flooded with cases of extreme sexual brutality on women by their husbands. “There’s strong evidence to outlaw marital rape. That’s why Prevention of Women from Domestic Violence Act, 2005, defined marital rape as violence,” she says. Against:
Most MPs are against making marital rape an offence. BJP’s Venkaiah Naidu, head, Rajya Sabha Select Committee that examined the government’s anti-rape Ordinance says: “It’s impractical for a husband to seek wife’s consent in a marriage on a day-to-day basis. Inclusion of marital rape as an offence will destroy the institution of marriage. Majority of MPs in our committee feel the Indian family system is strong enough to resolve domestic matters internally and we should respect that.” The committee refused to acknowledge marital rape as an offence. Only two committee members — CPI’s D Raja and CPM’s Prasanta Chatterjee - dissented in writing.
Voyeurism The Bill introduces new sexual offences, including voyeurism, which penalises a man for watching a woman in a private act or capturing her image while she engages in a private act. For:
Any new anti-rape Bill must recognise a continuum of sexual offences based on the concept of bodily integrity of a woman. Vrinda Grover, a Supreme Court lawyer, argues: “Blackmailing of women through dissemination of objectionable images on the Internet is commonplace these days. The offence must be codified in the law and punished accordingly because it humiliates the woman.” Against:
Some Cabinet ministers have questioned the inclusion of new sexual offences like stalking, disrobing and voyeurism without incorporating adequate safeguards in the law. A senior UPA minister says: “Very often, couples engage in intimate acts consensually and film themselves. What if the woman tomorrow turns around and accuses the man of voyeurism. That’s a contentious point.” Law Minister Ashwani Kumar says the government has incorporated safeguards in respect of voyeurism and ensured that only forcible acts are penalised. “How far we succeed in including these safeguards only time will tell,” he adds.
Gender neutrality The Law Commission, had in its 172nd report on the review of rape laws, suggested that rape be made a gender neutral offence by replacing the term rape with sexual assault. The Ordinance accepted this position, but under pressure from women’s organisations which petitioned UPA chief Sonia Gandhi on the matter, the Law Ministry in the new Bill retained the term rape and said rape is a gender-specific crime which a man commits against a woman and not vice versa. For:
Women’s rights activist Madhu Mehra says in India rape is a gendered crime committed against women because they are women. “Rape is about power and dominance and only women suffer this crime. We have demanded gender specificity of the rape accused saying only a man can commit rape. But the rape victim can be gender neutral which means a woman, a man and a trans-gender can be victims.” It’s also feared that men will slap false charges on women victims of rape to defeat their urge for justice. Against:
There is evidence of male children being sodomised and brutalised. That’s why the Law Commission had proposed gender neutrality of sexual assault. But since there’s a separate and dedicated gender neutral Bill to address sexual crimes against children — Protection of Children from Sexual Offences Bill, 2012 — the old concern has been taken care of.
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Last
word: Pawan Bansal The person in charge of the only ministry with an independent budget has come a long way, but not without his share of disappointments. An eye for the next station on the map is what has kept him chugging along.
The four-time MP from Chandigarh had the impossible task of matching the cash-strapped organisation’s limitations to the aspirations of the upwardly mobile. Speculation was he would announce hi-speed trains and provide for the ambitious ‘Bullet train’. But the Railway Budget reflected the man himself — humble, pragmatic and without flights of fancy — a politically astute effort bound in fiscal realism. “These (high-speed trains) are iconic, aspirational projects. My goal is to show visible results within the available means. In the past, announcements have been made without much being done later. India will shift [to high speed] but the priority is to bring down operating costs, increase revenue and provide passengers good amenities,” he says.
Timing it right Luck on his side (“Ishwar di aseem kirpa,” as he puts it in his language of choice, Punjabi), Bansal has used his soft-spoken demeanour and a knack for being at the right place at the right time to be where he is — a post that has been held by Congress stalwarts such as Lal Bahadur Shastri, Jagjivan Ram, Kamlapati Tripathi and Madhavrao Scindia. While Bansal has steadily moved from one opportunity to the next, close associates say he has never lobbied for any position. Every time there is a reshuffle, he purposely goes out of Delhi. The Railways came his way despite the fact that he struggled with his previous portfolio, Parliamentary Affairs. Parliament witnessed repeated disruptions and adjournments during his time, though Bansal pins that to the circumstances. “Parliament was passing through difficult times. Dealing with the dynamics of coalition politics, I think I was able to handle the job.” That he enjoys the confidence of those who matter in the party — Sonia Gandhi and Manmohan Singh — helps. He also has good friends in senior party leaders Ambika Soni, Salman Khursheed and Anand Sharma. As a Minister of State for Finance in UPA-I, he had been able to impress his Union Minister, P. Chidambaram, not an easy man to please by any measure. Meticulous to the core, Bansal would painstakingly scan files and record his opinion candidly. The good work has landed him key Cabinet posts in UPA-II — Science and Technology, Earth Sciences, Water Resources, Parliamentary Affairs, and now the Railways.
Tapa Mandi Beginning right in his student days, politics was a natural calling for the man from Tapa Mandi in Barnala district, where his father, otherwise a businessman, was president of the municipal council. A teetotaller and vegetarian, he has a doting life companion in Madhu, who finds him perfect husband material, as he is “very caring and understanding”. There was a time when Bansal also dabbled in dramatics. It may be fulltime politics now, but he has preserved his fondness for reading, a hobby he indulges in while shuttling between Delhi and Chandigarh nearly every weekend. Madhu has rarely seen Bansal lose his cool, but what has the potential of bugging him is someone disturbing him while he is going through an important document or when someone trying to touch his feet. The respect with which he treats all around him endears Bansal to his staff equally. “Even when he is very upset, he never demeans anyone,” says Nar Singh Dev, his OSD.
Big breaks Bansal’s parliamentary journey started when he was handpicked by Rajiv Gandhi for his role in Punjab youth politics. Interestingly, the first entry was in the House of Elders when he was a mere 36. He won his first Lok Sabha election in 1991, but it was 1999 that proved a turning point, when he managed to win the Chandigarh seat despite a BJP wave in the country. He had lost to the BJP’s Satpal Jain in 1996 and 1998. Two factors were crucial in the win. Vinod Sharma, a frontrunner for the Congress ticket, had to bow out over a controversy involving his son. Second, the BJP instead of fielding the sitting MP Jain, put up senior leader KL Sharma, who was dubbed an “outsider”. Apart from a public showdown with then Chandigarh Administrator Gen S F Rodrigues (retd) and his name figuring in a multi-crore shopping booth allotment ‘scam’ in Chandigarh, Bansal has managed to stay out of controversies. His non-confrontational approach has also kept him from hitting back at rivals, no matter what they may do to harm him. Bansal’s detractors, however, would say he is a “silent, clever operator”. Key positions in Chandigarh are taken by his men, so nothing ever comes out against him, they say. But none can deny him the reputation of a gentleman politician he has earned over the years.
The Punjabi Presenting the Rail Budget, Bansal had his college mate and Leader of the Opposition in the Lok Sabha Sushma Swaraj in splits. The Punjabi in him found it hard to twist his tongue to pronounce the names of South Indian cities. He has even taken his oath in Punjabi once. For English grammar, however, he is a stickler, and won’t approve a draft before all punctuations are in place. The Punjabi traits, however, do not show up in trappings of power. His instructions to the staff are that a siren or the ‘lal batti’ are to be used only in true emergencies. Easily approachable, his mode of transport for travel to Chandigarh has always been, well, the train, albeit the
Shatabdi.
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