People's Democracy

Anti-Rape Law: A Tool to Counter Reactionary Politics

Archana Prasad

THE All India Democratic Women’s Association (AIDWA) held a consultation on the Criminal Law Amendment Bill 2013 (popularly known as the anti-rape law) after the presidential assent to this law last week. The discussion was attended by national level  organisations of women, eminent lawyers, representatives of the National Commission for Protection of Child Rights, and young students from different colleges and universities. Almost all the participants agreed that while the passing of the law was a significant step in their long struggle against patriarchal social institutions, it also exposed the reactionary intent and faultlines of the Indian political and social system.

This has been particularly evident in the way in which right wing and socially conservative political parties reacted to two particular questions, namely, the age of consent for sexual interaction and marital rape. On both issues the UPA government showed its inability to stand up against the forces of social conservatism, push for substantial social reforms, and take the societal changes into account. This is particularly true in the context of the close association between the rising domination of corporate capital, the withdrawal of the state from its social welfare functions and the increasing articulation of conservative patriarchal identities.

CONSENSUAL SEX

IN YOUNG INDIA

Pre-marital sex amongst teens is a social reality in a fast transforming society and requires special attention, especially in the context of honour crimes that have come to light in the last few years. The Justice Verma committee’s proposal to reduce the age of consensual sex from 18 to 16 years was initially accepted by the government, and elicited sharp reactions from most quarters. Speaking in the debate, a senior BJP MP stated that when girls of 10, 12 and 14 years dance at vulgar songs, their mind gets polluted. Thus there is a need to control such TV programmes that pollute thee mind of young boys and girls rather than reduce the age of consensual sex from 18 to 16 years. In the same debate one other member stated that the lowering of the age of consensual sex was against the Indian tradition as it would legalise immoral sexual behaviour. In the same vein another prominent member opined that the anti-rape law was not only an assault on the Indian value system; it was imposing a western value system of India. India needed an anti-rape law, but one that was suited to the Indian tradition and not imposed on the Indian society.

Such conservative views are based on and feed into the general reactionary understanding that women have no right over their body and no right to choose their own partners. It is also akin to the arguments of the khap panchayats that have not only justified honour crimes but also do moral policing and impose their diktat on young women. Hence it is not surprising that the codes of these illegal panchayats are not very different from other fundamentalist religious organisations who seek to protect the Indian culture. Thus the arguments against lowering the age for consensual sex are based more on conservative values and less on legal experience around the world. The data collected by the All India Democratic Women’s Association shows that in most countries the age of sexual consent all over the world is lower than the minimum age of marriage. For example, the age of sexual consent in China is 14 years whereas the age of marriage is 22 years for men and 20 years for women. In Russia and Britain the age of sexual consent is 16 years whereas the minimum legal age for marriage is 18 years.

This lower age of sexual consent is also associated with the intent to decriminalise sexual activity at an early age and is also accompanied by the need for sex education at an early stage. In some countries like Britain and Germany it is also accompanied by the qualification that the age difference between the boy and the girl should be no more than a certain number of years. Further, it is not legal for a man over the age of 18 years or 21 years to have sex with a person who is a minor. The AIDWA and other national  organisations of women have also taken a similar nuanced position where it has suggested that the consensual sex between two young individuals should be considered legal if the age difference between the boy and the girl is not more than five years. This position is in consonance with all other countries that follow liberal and socialist ideals at least as far as women’s freedom of choice are concerned. In contrast the position adopted by those who oppose this position is more compatible with countries like Saudi Arabia, Pakistan, Yemen and other socially conservative countries that outlaw all premarital sex. By succumbing to such pressures the government has only shown it has no political will to take measures that can impact on the long term autonomy and choice of women.

MARITAL RAPE AND

VIOLENCE WITHIN FAMILY

The second issue of debate has been the inclusion of marital rape within the ambit of the anti-rape law. As pointed out by the AIDWA legal cell’s convenor, Kirti Singh, this suggestion is not new and had been included in almost all the struggles that the women’s organisations had initiated for strengthening the anti-rape provisions of the penal code. Such a demand has been based on the understanding that the fight for women’s rights and equality begins at home and that the power equations within the family need to be transformed. Such a perspective has been strengthened by the enactment of the Domestic Violence Act 2005. The inclusion of marital rape within the ambit of the law, as suggested by the Justice Verma committee, would have been one more step in this direction. 

But except from the Left parties, such a provision has not found any support within the parliament and the government. In fact the interventions from the BJP suggested that the inclusion of marital rape would weaken the Indian family --- a view that was endorsed by the parliamentary sub-committee on home affairs which is headed by a BJP member of parliament. In this situation the dissenting Left members of parliament quoted the Verma committee in their dissent note which stated that “the exemption of marital rape stems from the long outdated notion of marriage which regards the woman no more than the property of their husbands....whereas marriage in modern times is considered a partnership of equals.” Hence the non-inclusion of marital rapes only reveals the urgent need to fight conservative social attitudes even within the policy making and political institutions of our country. It will also embolden and strengthen the voice of illegal institutions like the khap panchayats which advocate the subordination of women, and actively endorse ‘honour’ crimes against women. Hence women’s organisations must not only continue to press for the inclusion of marital rape, but also strengthen their ongoing struggle for a law against ‘honour’ related crimes.

There is no doubt that the anti-rape law is limited in its scope as it has also ignored certain other important suggestions of women’s organisations. These include the non-exclusion of special provisions for accountability of the police and the non-recognition of assault by socially, politically and economically dominant people as ‘aggravated rape.’ Despite these flaws certain gains have also been made through this anti-rape law. The definition of rape has been widened, the minimum punishment has been enhanced and provisions for bringing public servants under the ambit have been strengthened in a limited way. The women’s organisations must use these provisions and strategise for the effective implementation of these provisions. The strengthening of such an effective mechanism will feed into the ongoing struggles for the transformation of a conservative social structure. In this sense the anti-rape law can also serve as an instrument to combat right wing reactionary politics whose dominance has been exposed in the debate on the anti-rape law.