The 16th December gang rape had been a wake up call for the entire nation, forcing us to take a long and hard look at how rape culture functions in India, and how the law deals with it. In its aftermath, a lot of debate and discussion had occurred in feminist, queer, and social justice circles, which had ultimately led to the formation of The Justice Verma Committee – an official judicial body to reform sexual assault laws in India. Within a month, the Committee had compiled a report laying down its recommendations, among which included the setting up of Rape Crisis Cells, compulsory sexuality education, the criminalisation of marital rape, and various other important points. And yet, despite the Committee making significant headway by helping redefine consent in the eyes of the law, there were many measures left without implementation. Justice Verma, the convener of the body himself had in a 2013 interview spoken out against the lack of infrastructure and resources that had been made available to the them, and had talked about the government’s apathy towards it.
It’s been four years, and in yet another horrifying December event – that of the mass molestation in Bengaluru on New Year’s Eve – the glaring inconsistencies within our law enforcement surrounding assault have been further exposed. Rape culture is still alive and well, and numerous cases continue to occur in India – many even going unreported – and just like they did with the Justice Verma Committee, the law and its enforcers continue to be lax towards penalizing sexual assault in India.
Section 354 of the IPC, the law that punishes sexual assault, is itself underscored with deeply patriarchal language. It refers to rape and assault as an “intent to outrage [the woman’s] modesty”, attaching a sense of morality to a woman’s sexuality, and bringing in the age old rhetoric of how rape or assault breaches a woman’s “izzat” (respect). Further, the statement itself is extremely vague, which presents a whole new set of problems. Since one’s ‘intent’ cannot be quantified, the only way for a survivor to prove that they have been assaulted is by producing physical evidence. While doing that is itself a difficult task for the survivor, because the deep-seated stigma surrounding the subject often leads to medical negligence in performing rape tests, things are even worse for those who experience the kinds of abuse which do not leave behind tangible physical wounds. Hence, for those who have undergone emotional abuse, or non-penetrative forms of abuse, it becomes increasingly difficult to make their case. “If you can’t produce the evidence, you are the one who is blamed,” says Kolkata-based defense lawyer Nita Joshi, who has often handles such cases, “there are accusations made that you are misusing the law. Women are often less likely to be believed, and their virginity or sexual activity is brought into the argument.”
However, it’s not just women who have a hard time with this law. When it comes to men, and transgender or gender nonconforming people, Section 354 doesn’t even take sexual violence against them into account. Though the University Grants Commission recently introduced a gender-neutral policy of sexual harassment in college campuses, our national laws are far behind, and explicitly mention only cisgender women. For cis men to report rape, the only way to do it is through the regressive Section 377, which prosecutes “unnatural sex”, including peno-anal penetration. This is ridiculous even after leaving the homophobic nature of this law aside, because the law’s insufficiency to deal with male rape arises from it’s extremely narrow and deeply patriarchal definition of the same.
Another major inconsistency in our sexual harassment laws is it’s approach to stalking. Though The Criminal Law Amendment Act of 2013 recognized stalking as an offence, punishable by Section 354D of the Indian Penal Code (a clause added to the original sexual violence law), that too is mired with its problems. Despite how rampant stalking and harassment is in India, the police often do not file an FIR under this clause and prefer clause 354A instead, which deals with molestation. But, 354A, again, covers only explicitly physical non-consensual contact or demand for sexual favours, and the cases of stalking where these do not happen go ignored.
Furthermore, India does not have provisions for filing restraining orders against stalkers like in the US, and instead, something called a ‘prohibitive injunction’ can be filed in a civil court. “But this is a long-drawn process,” says Joshi, “and they are taken into account only if the stalker has a criminal record of some kind.”
There is a lot that is going wrong in prosecuting sexual violence in the country – from rape survivors being humiliated in court, to the police being discriminatory, to legal officials passing disgustingly patriarchal judgements. And on top of all this, marital rape still remains legal in India, because, according to Woman and Child Cabinet Minister Maneka Gandhi, “it cannot be applied in the Indian context” – something truly nightmarish. Clearly, the furore around the 16th December rape, and the recent Bengaluru incident haven’t been enough for our justice system to do some soul-searching and properly revisit or amend our sexual violence laws. There’s a lot which needs to be addressed and changed, and perhaps the only way to make that happen is by continuing to hold our government and judiciary accountable for not doing enough. Our approach to sexual violence needs to change on a much deeper level because the prejudice is just that firmly embedded, and this can happen only once we sit up and recognize these glaring problems in the system.