“Deeply perturbed” by pro-women amendments to rape laws,Madhu Kishwar files PIL in Delhi HC

The Delhi High Court today issued notice to the Centre in a PIL filed by activist and academic Madhu Kishwar challenging the constitutional validity of the amendments made to Sections 375 [Rape] and 376 [Punishment for Rape] of the Indian Penal Code..Senior Advocate Kapil Sibal briefed by advocate Shivanshu Singh represented the petitioner before the bench of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal..The amendments in challenge were introduced through the Criminal Law Amendment Act, 2013 (2013 Act). These amendments widened the definition of ‘rape’ and narrowed down the definition of ‘consent’. The amendments also increased the age of consent from 16 to 18 making every case of intercourse with a woman below 18 years of age, statutory rape punishable with a minimum of seven years..Kishwar filed this petition along with a woman charged under Section 376 read with 109 of the IPC and a man convicted under Section 376 even though the prosecutrix admitted to voluntary sexual intercourse..The petitioners claim that the amendments are “draconian” in nature considering that an uncorroborated testimony of the prosecutrix that a non-consensual act occurred is enough to land a conviction..Kishwar has contended that because of her life-long commitment and long track record in working to strengthen the culture of equity and social justice in India, she feels deeply perturbed at the widespread abuse of legislation claiming to be “pro-women”. She states,.“It is a common feature of many laws, enacted ostensibly for women’s protection and the strengthening of women’s rights, that in practice they tend to negate the presumption of innocence, a founding principle of Indian criminal jurisprudence and arm the police with enormous powers of arrest and harassment, thus jeopardising life and liberty.” .The petition also states that the 2013 amendments fail to provide a gradation of offences and punishments, given that a wide variety of acts have now been included in ‘rape’. There exists a mandatory punishment of seven years imprisonment which violates Articles 14 and 21 as well as the principle of proportionality..Spinning an interesting interpretation to the amended laws, Kishwar states,. “The inherent danger of the legislative approach taken by the 2013 Act, and the vast scope for abuse, maybe illustrated by considering Section 375(c) which provides that a man commits rape if he ‘manipulates any part of the body of a woman so as to cause penetration into….any part of the body of such woman, or makes her do so with him or any other person’. .By this definition, the sole testimony of a woman that a man forced her to put her finger into her own ear would be sufficient to constitute rape and would result in a mandatory imprisonment of the convicted man for seven years.”.The petitioners also put on record that according to the statistics compiled by the Delhi Commission for Women, 53.2% of all rape cases filed in Delhi between April 2013 and July 2014 (after the Act came into force) were false. In many cases, the complainant turned hostile and ‘revenge’ was stated to be the most common reason for filing a false complaint..It is the contention of the petitioners that the definition of rape has been widened to include non-penetrative acts incapable of medical corroboration. Further, the judicial discretion to award punishment for less than 7 years has been taken away, even though a large number of independently unverifiable cases and even perfectly consensual acts will be counted as rape..In January 2013, the report of Justice JS Verma Committee on ‘Amendments to Criminal Law’ was published. The report suggested several changes to the then existing law. In March 2013, the Criminal Law Amendment Bill, 2013 based substantially on the recommendations of the Verma Committee report was promulgated in both the houses of the Parliament..Soon after, a ‘Resolution for the disapproval of the Criminal Law (Amendment) Ordinance, 2013’ was moved by D. Raja in the Rajya Sabha. Several members of the parliament voiced their opinion that the bill had been introduced with “undue haste”..In April 2013, the Criminal Law (Amendment) Act was passed despite the contrary opinions..The fate of the amendments, however, now rests on this hearing set to come up in due course..Read the petition below..Image taken from here.