Introduction
Nirbhaya case in India shook the collective
conscience of the entire nation, the time was ripe, people were frustrated with
the political establishment, all around corruption and scams, youth was
awakening, media was playing very crucial role, and on top of that such a
brutal act in the heart of country followed by an initial stupid apathy of
political leaders, gave rise to a kind of up-rise, which resulted into a new
law.
People were pacified, felt a sense of victory, that
finally they forced the government to act, the perpetrators of the crime were
sent to jail and condemned to death by a fast track trial court. Political leaders
though that they not only controlled the situation but also did a wonderful job
in the election year by coming up with a stricter law.
Political exigency was the motive behind this law
not the well thought out plan and even otherwise it is quite evident that the
Indian Political Class lacks the competence of even appreciating the need and
significance of any new law, the present day polity is reduced to either
amassing wealth by corrupt means or generally securing political mileage out of
cast or religion or scoring vendetta points. The political class neither has
the will nor the intellectual capacity to come up with laws which can work for
all.
We are passing through a period in India, where we
have lost complete sense of vision, we have become absolutely short sighted, we
just are not bothered about the future in totality, people at power have no
agenda, no idea about the well being of the citizen or the nation, they attempt
to tackle half heartedly the problems which beset them, there has never been a
period in the history, where the common man felt so helpless or fragile than
the last decade or so.
One such half hearted solution is change of rape law,
it was done by the political class of this country to assuage the feelings of
the people at large post Nirbhaya case, this is such a mindless amendment in
the law that within a decade we will have millions of accused of such heinous
crime and courts will be stuck and doomed, thanks to abysmally visionless
enactment.
This submission not only covers the pitfalls
associated with the present enactment but also attempts to discover the fact
that only punitive action cannot dissuade people from indulging into such
ghastly acts. The punitive part of law alone cannot contain the crime, solution
may lie somewhere else.
The Root
Cause – Desire for Sex
Abandon a hungry person on a deserted island, he
will eat almost anything, there are recorded cases that hungry people started
eating flesh of the dead people to survive, even killed the weakest person in
the group and ate his flesh to survive. That’s the force of hunger, the natural
hunger. Such people cannot be termed to indulge into criminal activity, the law
cannot punish them, but if a well fed man indulges into human flesh eating,
then he can be termed as deranged man or he can be prosecuted also.
There are examples that very poor mothers in some
state of India, sold of their infant child for few hundred rupees, just to
ensure food for few days. They cannot be punished, but if an otherwise well off
lady sells of her child then she can be prosecuted.
There are families in some poorer states of our
country where the young girls are sold off to agents for a paltry sum of money,
parents know that the future of their daughter is not so good, but still they
do it, to survive. They cannot be punished; neither can they be made co-accused
in promoting prostitution. But if a husband forces his wife to indulge into
flesh trade for better life or for some other benefits, then he can be
prosecuted.
The above few examples highlight the incapacity or
complete surrender of human beings when faced with the force of hunger. This
hunger is primarily of stomach in nature, this hunger if not fulfilled may
cause our extinction, so the force of this hunger may be very high, since
centuries the Indian philosophers have used the word hunger also for the very
basic physical need that is cohabitation between a man and a woman. The
question which we would explore is about the strength of this hunger, because
un-fulfillment of this hunger may not directly result into the issue of the
self survival. The pertinent point is: Is it so strong, that otherwise a normal
man would indulge into force? And if yes, then what steps the society or the
government must take to ensure that the force is never applied. After all the
duty of the government is not over with the passing of the law, the very root
cause of such devious behavior must be ascertained to stop the occurrence of
such offenses.
The need for sexual relationship between man and
woman is as old as natural hunger, as old as any living organism came to
existence. This is the most widely done activity in the universe, possibly next
to feeding yourself. The basic understood objective is procreation. That is to
produce further, if male and female of any species do not indulge into
cohabitation then that species would extinct in a very short span of time, so
it is necessary that man and woman must cohabitate.
So let us start from the birth of a male child on
one side and birth of a female child on the other side. Without getting into
certain scientific evidence of sexual manifestation even in the early infancy,
we allow these two children to grow. They grow, they learn to eat, they learn
to walk, they learn to speak, they learn to manage themselves in their daily
rituals, all these learning are pre puberty and well facilitated by family
members or teachers. But no one formally teaches them about cohabitation. If
for a moment we leave aside the present media era, where children are far more
knowledgeable as compared to their parents on the matter of man woman physical
relationships, then we can safely say that in earlier days, even though no
formal education was given to children about sexuality, and still even if they
were married at the very tender age of 13-14, they would end up procreating.
Not only would they indulge into the act of
procreation but would attempt to keep the same secret with family members, but
the experience ladies of house would know that the marriage is consummated.
Just to demonstrate the power of attraction or need for act, It is suffice to
say that everyone from the law maker to the poorest of the poor knows how
infatuated both the girl and boy would be in their early days of marriage.
The moot point is that an act is universally done
even though same was not taught or explicitly spoken; this only conveys the
force behind the act. It is as uncontrollable as the desire to satiate the
hunger.
Another interesting point is that as per our
designer (The GOD) the purpose of sexual union was procreation only, then how the
Adam and Eve would know about this, no one would have taught them, then how
come they came closer. A small experiment must have been done with animals, for
example take an infant he dog and she dog, keep them away from their group,
absolutely isolated from the dog community, let the nature take its own course,
and they would procreate. Similarly in the animal world there is no media
learning or no exposure, still the smallest of organism indulges into male
female cohabitation. This is only possible if the irresistible force of
attraction is present between male and female, which leads into union.
Animals need not control this force, they do not
fear the law, but a person living in civilized world must learn to control it,
that’s it. So primarily, our control is by far not out of choice but that of
some kind of decorum. Given the opportunity any human being may indulge into
animal like behavior. This observation only emphasize the point that we must
explore what went wrong with the people like Nirbhaya perpetrators, because
possibly everyone is a potential perpetrator; everyone has that force or
desire. Is the social restriction sufficient to create a society free from
rape? Or free from mindless manifestation of this force? Or is it other way
round that the social restriction and inequality are the root cause of rape? Whatever
be the fact the law alone is not sufficient to curb this menace.
As long as we associate the act of sex with
perversity, we cannot come up with a comprehensive solution for sex related
crimes. As long as we see the act of sex as sinful, things are not going to
change, as long as people at power feign sainthood on the matters of sex,
things will not change, so first and foremost we have to see the need for sex
in a better perspective, once we understand the need for sex, then possibly we
can attach a more human angle in tackling the related deviations, if any. It is
sinful to think that an act which is must to sustain our existence can be
perverse or sinful in totality. For a moment just think honestly, Can we think
of a materialistic world without sex or sexual desire? The human history is
driven mostly by a desire to amass wealth or desire to win over a particular
lady. Honestly speaking, it will not be an overstatement that fulfillment of
sexual desire is a very big motivation in the materialistic world, and it is
also getting true that one feels that materialistic success may lead to
opportunities wherein sexual desires beyond the monogamous relationship may be
fulfilled.
Now the point is have we or especially have the law
makers understood the point that the desire to have sex is natural, it can only
be unnaturally or forcibly suppressed, and the suppression can manifest into
violent and unnatural form, and that may result into rape or even the most
brutal act that was perpetrated on Nirbhaya. So the root cause for violent
sexual behavior in majority cases may be this suppression, not any kind of
perversity in the minds of perpetrator.
So if we as a society can mitigate the circumstances
leading to this suppression then possibly we will be able to reduce the sexual
crimes. Take for example Tuberculosis disease, it induces fever, treatment is
giving medicine after TB is identified, but that’s the treatment, the solution
lies in eradicating the TB bacteria itself and strengthening the human immunity
to TB bacteria. Keep making best of the medicines, but if eradication aspect is
not targeted, then TB will never be eliminated. Similarly sexual crimes cannot
be eliminated; they will keep changing forms like TB bacteria, unless the
suppression aspect is not properly addressed. A natural force cannot be
suppressed, it will surely cause violent eruption, how and when is immaterial.
And desire for sexual gratification is a natural force; it cannot be suppressed
or denied.
The Truth :
Unspoken unacknowledged Reality
What a deprived female would do to a male, is
certainly not the subject matter of this discussion, but suffices to say that
it would be no different sans society restrictions. So at present we would see
what is there in a male’s mind.
Very recently few Karnataka state legislatures were
found watching pornographic clips on their mobile while the assembly
proceedings were on, when they were caught, they came up with some very amusing
explanation, that they were watching the hardship faced by prostitutes. In
another episode when a not so honorable swami tried himself in a reality show,
his one of the co partner was a pornographic star, afterwards when this swami
was asked a question about his tryst with this star, the swami feigned
ignorance about the profession of this star and weakly attempted to call her as
his daughter. Is it not some kind of feigned sainthood, is it not some kind of
running away from reality?
The creator God Brahma of Hindu Trilogy ordained
that one should not cohabitate with following females:
"the mother, the daughter, the daughter-in-law,
the wife of the real brother, the mother of the father, the mother of the
mother, the sister, the daughter of the brother (niece), the wife of brother's
son, all these women are unapproachable.
He had to say this, because he himself was aware of the force
behind male female union. This force is not a matter of choice for ordinary
man, this force is present in every one, and it is the manifestation of this
force which is ‘the problem’. A good man in this so called civilized society is
a man who is able to keep the manifestation of this force as secret. There
cannot be any other definition of good man with respect to this point. Accept
possibly lord Rama of Hindu Mythology, it is very difficult to find a man who
has not surrendered to this force beyond apparent society restrictions.
Monogamy is there, but it is restrictive in nature, the force would manifest
beyond monogamy if a good man is confident of keeping it secret, but nonetheless
it would manifest.
Sage Vishvamitra could not resist the temptation of Apsara
Urvashi, Lord Shiva lost his control when Lord Vishnu showed him the ultimate
beauty form of Devi, so however high or educated a man may be the force can
manifest beyond socially acceptable behavior.
Long ago the Christ asked a question : Let the man throw the
first stone who has never sinned. And no one came forward, and today there is a
question in front of all of us: Let a man come forward and approve the present
draft of rape law who has never thought of manifesting his force against social
norms. No one will come forward!
Opportunity and possibility of discreteness is all required
to surrender to this force, irrespective of status and education of a
physically healthy man. The equally
hopeless situation is denial once exposed like those Karnataka legislatures or
like that swami. For the lesser mortals it is the direct manifestation of this
force, thus leading to a visible rape.
The Lord Krishna had 16000 thousand queens, The Mughal
emperor Akbar had few thousand females in his harem, many kings and powerful
people had multiple wives. No one
questioned them because it was acceptable in society at that time. But nonetheless
it demonstrates the power of that force in powerful people. The force is
present with equal magnitude in less powerful people, but how it manifests and
applies is not known? Rape is the
violent manifestation of this force on an unwilling female.
In the present era, many incidents are fresh in the minds of
people, that the most powerful people have surrenders themselves to this force,
when I say most powerful people I am talking about people who are the lawmakers
and otherwise publicly seen as good man. For them it was unfortunate that this
manifestation could not be kept secret, but for others it was fortunate that it
got exposed, because now there is a point that everyone has the potential or
tendency to succumb to this force, so the remedy is not post application of
force, the remedy must start with a provision that this force does not manifest
itself into the unacceptable behavior leading to helpless rape or brutal
attack, before it achieves this dimension there must be some outlet where this
force can be channelized or diluted. A good man, as defined above, may not
indulge into Nirbhaya kind of act, and ordinary man devoid of any channel to
mitigate the force, may. The difference is the application of the force.
The List : Present day
List
It may create uproar that what God Brahma ordained is
certainly not being followed by our society; there are breaches, unacknowledged
breaches. We are in denial mode. We are in absolute denial mode as far as man
woman relationship is concerned beyond husband wife relationship. Because of
this running away from reality syndrome, we are creating monsters out of
people, and the present law will create millions of monsters, even though they
are all otherwise normal human mortals.
I feel, for the betterment of future we must acknowledge in
totality that following list is authentically present and it is not driven by
some sporadic incidents here and there. A disease can only be cured if the root
cause is well understood and acknowledged, if we keep running away from
reality, we can never set it right. Courts are blind, they will not set it
right, they will blindly prosecute people if they fall under the law, our
courts and police system are absolutely insensitive about people at large. They
are not bothered about prestige of people, they are not bothered about hardship
faced by people, they are not bothered about irreparable damage caused to
litigants, they are driven by false sense of belief that if they punish
perpetrator as per law then society will be a good place to live in. How naïve
of them? Politicians or the political class is never driven by the desire to
set things right, it is very unfortunate that unacceptable level of intellectual
incapacity and intellectual dishonesty is being demonstrated by present era
politicians, they can do it but they do not do it, this is the intellectual
dishonesty. They adopt a policy of probe or test the waters, and if it goes
wrong come up with further absurdity. There are many amendments or many laws
passed in recent past without proper thinking, in fact majority of the
politicians will not know the steps required to finally give an ascent to the
law. It is an insult and affront to the public and the parliament as a whole
when one of the ruling party minister went on record stating that present
amendment in the rape law will create problems for females in getting
employment, clearly suggesting lack of well thought out plan behind the present
amendment.
Following list, with certain exclusions which may cause
furor, is the list in which the manifestation of sexual force between man and
woman is present beyond the only acceptable husband- wife relationship. This
list is mostly confined to male in superior position.
1. An under 18 boy and under 16 girl.
2. An adult male and under 16 girl.
3. An under 18 boy and an adult female.
4. An adult male and an adult female
with no formal relationship.
5. An adult male and a female
prostitute.
6. A male prostitute and an adult
female.
7. A school teacher and his female
student under 16.
8. A school teacher and his female
student over 16.
9. A college teacher and his female
student.
10. A male professor and his female
research associate.
11. A male and female colleague
(employees) in office.
12. A senior male and junior female
colleague in office.
13. A male Boss and female employee.
14. A male of influence and a female
seeking favor.
15. A film producer and a female starlet.
16. A film director and a female starlet.
17. A music director and a new female
musician.
18. A police officer and female under his
custody.
19. A jailor and female under his
custody.
20. A government officer and female under
his supervision.
21. A minister and a female staff member.
22. An MLA / MP and a female seeking
favor.
23. A lawyer and his female client.
24. Employer and his maid servant.
25. An adult male and an adult female in
live in relationship.
26. A boy friend and girl friend.
27. A hospital employee and admitted lady
patient.
28. A male waylaid a female and forces himself
on her.
29. A male overpowers a known female
under his supervision.
30. A man threatens and forces a woman.
31. An adult male relative and under 16
female relative.
32. An adult male relative and an adult
female relative.
Now all these acts are immoral
because we live in monogamous society in general, but can we say that all these
relationship will fall into the category of rape. Another pertinent point is
that an offense as serious as rape cannot be dependent on complainant, a rape
is a rape; it is against society so it must be defined in a way that it becomes
independent of complainant’s whims. Majority of above relationships have a
hidden aspect of influence, the male enjoys over the female. This question if resolved properly, then may be rape law can be
very well defined, and the judicial system will focus only on the serious rape
matters rather than wasting time on cases which can never be curbed. The argument in favor of the male is that the
female made a judicious choice of surrendering herself to the force of male, for
some favors. Well lawfully this can be a void contract, but nonetheless it is a
contract between two consenting people and there is nothing criminal about it
at least on the physical relationship aspect. The problem for judiciary is the
definition of lack of consent; this is bombastically defined by judiciary to
cover almost everything in favor of female. Why ?
So if we can define consent or lack
of consent then possibly lacs of prosecutions can be avoided in future, let us
not leave the definition of lack of consent open to judiciary, we cannot afford
to have lacs of people as accused in such serious crime without proper
application of mind, in fact we cannot afford even to initiate the process or
expose the names of such people unless prima facie things are established.
The consent is defined in the law and
judiciary is bound to follow the same or expected to derive or interpret the
same, the dictionary meaning is very simple, a judicious and thoughtful
agreement not under any kind of threat.
So we take up few real life cases:
Case # 1
A senior and powerful government
representative (MLA/ MP/ Minister/ Secretary etc) demands sexual favors from an
educated female for her promotion or posting or key work. The female willfully agrees
in anticipation of this favor but the work is not done for any reason
whatsoever. She files the complaint against such person. This is no rape.
Pompous argument regarding morality and probity apart, it
also cannot be said that female was naïve or gullible, she made a judicious choice
in order to get the favor from him. Yes, if this aspect is exposed and proved
then the man can be charged or dismissed for improper use of his authority, but
there cannot be rape charges on him.
Case # 2
A senior and powerful government representative
(MLA/ MP/ Minister/ Secretary etc) demands sexual favors from a male to bring
some other female related to this male for some key work. The male agrees and
brings the girl. This is rape irrespective of who files the complaint or
irrespective of the fact that work was done or not.
Not only the officer but that man
also must be tried, because there was no direct consent of that girl, in such a
matter a third person cannot give consent on behalf of the girl.
Case # 3
An adult boy and an adult girl in a
live-in relationship for years. For any reasons the marriage between two does
not materializes. The girl files the complaint against such person that he
promised to marry her and thus induced her into sex. This is no rape. All
similar complaints that a female gave consent to sex in the belief that the
male promised to marry also may be covered under this.
Courts must not entertain these complaints, and they must be
thrown out in limine. It was a judicious decision on the part of the girl to
stay with that boy in live in relationship. Girl was intelligent and bold
enough to pursue this kind of relationship against normal social norms, where
is the question of force on her.
Case # 4
A director/producer/film star or any influential
person demands sexual favors from a starlet or actress for any role in a movie.
The female agrees but the work is not done for any reason whatsoever. She files
the complaint against such person. This is no rape.
At the best it is a breach of even otherwise a void contract.
She cannot even say that she got cheated; it was a willful judicious decision
on her part to surrender her to the force of nature for some gains. She had the
option to walk out, she had the option to resist, she had the option to even
malign that man by going public about his intent, she cannot cry foul later on.
Case # 5
A senior officer or employer promises
better salary or job or promotion or posting and demands sexual favors from his
officer level female (not the unskilled worker). The female agrees but the work
is not done for any reason whatsoever. She files the complaint against such
person. This is no rape.
Case # 6
A senior officer or employer promises
better salary or job or promotion and demands sexual favors from his unskilled
female worker. This is rape irrespective of work is done or not, and
irrespective of she files the complaint or not.
Case # 7
Two educated adults
not related to each other consent to having sex out of mutual admiration or out
of sexual feeling towards each other, or the girl consents due to admiration or
power status of man, these all are termed to be consensual sex and should be
out of the purview of the criminality. For example there are lot of film stars,
very famous and attractive, if a girl gets seduced willingly and consents to
sex, then it cannot be termed as rape later on.
Similarly there are many non film stars males, but they have great
sexual appeal, if a girl willingly consents to a physical relationship with
such male, then there cannot be any criminality attached to this. This is the
fulfillment of desire of the female and manifestation of sexual force of the
male as he thinks that the same is going to remain discrete and secret.
Case # 8
Any man, juvenile or adult, has sex with any female of the
age below 16 years. This shall be rape irrespective of consent or anything
else.
Case # 9
A school (upto class 12th) teacher or school
employee has sex with any female student of the school irrespective of her
being of 16 years or above, irrespective of the fact that consent was there or
not, this shall be termed as rape.
Case # 10
A NGO or trust (being run for orphans or destitute) employee
or manager or secretary has sex with any female resident then irrespective of
her being of 16 years or above, irrespective of the fact that consent was there
or not, this shall be termed as rape.
Case # 11
A hospital employee (staff or doctor), has sex with any
patient admitted in the hospital or during the course of some investigation or
trial being conducted in the premises of the hospital, then the same shall be
termed as rape irrespective of consent or no consent.
Case # 12
A police station in-charge or officer or staff has sex with
any female who has come to file some complaint (or is already in police custody)
inside the premises of police station. This shall be termed as rape
irrespective of consent.
Case # 13
A jailor or jail staff has sex with any female prisoner, in
the jail premises, this shall be termed as rape irrespective of consent.
Case # 14
A college professor or guide has consensual sex with his PhD
/ Research female student, this shall not be the rape even if the consent was
given under the impression that this may lead to better grades. In this case the girl shall have the distinct
known procedure for filing the complaint against the professor before the act
is consummated.
Case # 15
An adult male and an adult female have consensual sex in a hotel/guesthouse/motel,
with apparently no sign of inducement of drug or force, the same cannot be
termed as rape or improper conduct. All the hotels must be strictly warned to
get the signature of both male and female on the entry register as well as at
the time of the exit, if the declared relationship at the time of entry is
anything other than husband – wife. The signature of female on the entry
register and exit register is sufficient proof of her consent, if required as
evidence.
Case # 16
An adult male has consensual
sex with any of the Agamya adult females irrespective of the consent, the same
shall be termed as rape.
In all such cases of rapes following aspects need to be
considered
· - The
educational level of the girl.
· - The
unacceptability of argument in favor of the girl that it was ok if work was
done and not ok if work was
not done.
· - The
explicit consent, for favors.
· - The
choice with the girls to say no and go away.
· - The
choice with the girl to complaint before hand.
· - Absolute
absence of force or threat.
All such cases where it is apparent that the girl consented
for some favors, cannot be termed as rape. But we cannot miss on one aspect
that is what if the girl wishes to stay away from such act and refuses to compromise.
In that case the girl should have some means to bring to the notice of some
competent authority that she is being pursued or harassed by so and so person.
Rape in true sense must be associated with:
1.
Shear
force causing injury or induced surrender.
2.
Threat
to kill or harm.
3.
Consent
given under fear of bodily harm.
The other aspect which is added in the law is so dangerous
that it will make asking a girl “ Aati Kya Khandala” as an offense punishable
up to an imprisonment of five years.
This is ridiculous, even if you propose to your girl friend;
she can go to police and file a cognizable non bail-able case against you.
Even if you go to massage parlor, your chances of getting
doomed are very high, because the girl who gave you massage can go to Police Station
and file a complaint that you requested for.
Practically any girl can potentially make you an accused of a very
serious non bail-able offense. Your office employee if disgruntled can go to
Thana and make your life miserable.
This is absolutely mindless and ridiculous and calls for
immediate removal, because if it is not removed then we will have millions of
accused under this section in next few years time. Judiciary will not be able
to distinguish between sense and nonsense.
My Proposal
This proposal will find the acceptance only if we accept the
fact that the desire to have sex is present in every leaving organism, it is a
kind of force which requires some manifestation, may be in the direct act or may
be in certain creative work, but nonetheless sexual energy needs to be channelized.
There are no saints, simply because there is no need to be and sainthood cannot
be defined with the sole aspect of celibacy, if people are able to manage their
sexual life, then that freedom must be given to them and government must not be
too aggressive in considering man as predator, because girls are equally
intelligent, desirous and ambitious. The act must be considered as basic need,
not at all hurtful or harmful to either gender if done with consent. An
agreement for any favor must be treated as consent.
Keeping above in view our, strategy should be:
1. Legalization of Prostitution.
A man or woman cannot be deprived of
sex. Celibacy is not natural and forced celibacy is certainly not desirable. A
man (or a woman) should be able to take the services of prostitutes to
channelize the sexual energy. This act alone will dramatically reduce the sex related
crimes, will bring tremendous amount of social reform and a better life for
prostitutes and their children. It is futile to stop the prostitution, and it
is stupid and foolishness not to legalize it. Easy accessibility driven by
market forces will surely reduce rapes or improper behavior. Legalization
aspect can take care of mandatory health certification, mandatory age proof,
mandatory registration and also mandatory restriction on the areas from which
they can operate.
My argument is very simple, it is
taught to us directly or indirectly that sex is bad, indulging into sexual act
before marriage and outside the marriage is sinful and disgusting act. Ask any
sexologist or ponder over your own sexual frequency with your spouse after
marriage, then you will realize that the act of sex is certainly not sinful or
bad, it is very natural. Moreover ask any sexual orientation research group,
any sociologist for data on frequency of extramarital sexual relationship of
human beings, this data would be an eye opener, and will only prove that
lifelong monogamy is just the word of decorum.
So the law, the society, the
government first must de-criminalise the normal sexual act between two
consenting adults without being judgmental, provide easy access to sex by legalizing the
oldest profession in the world with some restrictions on access to children
below the age of 16 or 18. Once this is done, the male female relationship can
be catalogued and the sexual acts can be identified which could really be
termed as rape or forceful manifestation of sexual energy. These are the cases
about which the law enforcement agency should be worried about.
2.
Effective
Sex Education in schools.
. Effective Sexual Harassment Complaint Redressal Mechanism.
3.
Amendment
in Rape law to incorporate the proper definition of Rape, consent and sexual
harassment.
A rapist should not be spared, but an agreement based favor
driven consent should not give a stigma of rape accused to the concern man. And
there is nothing criminal in sexual request or demand. The thought of attaching
criminality to these words is insane and juvenile.
Consent : Apart from whatever is stated in
the law, following point must be inserted in the definition of consent:
A consent given by the female based on promise of certain
favors to be done in favor of the
female shall be treated as the consent. Similarly a consent given by the female
under the threat (real or perceived) of no promotion or demotion or poor
posting shall also be termed as consent.
A consent given under certain threat like bodily harm to the
lady or to her relations cannot be termed as consent for this section. But such
allegations must be demonstrated at complaint stage itself.
Illustration:
1. An adult lady consents to sexual
relationship with an influential person under the promise of some work like
promotion, increment, or for some work contract. This should be treated as
consent for this section.
2. An adult lady consents to sexual
relationship with an unmarried/married male under the promise that such male
would marry her in future. This should be treated as consent for this section.
3. A female employee consents to sexual
favors when threatened of no promotion or demotion or poor postings. This shall
be treated as consent for this section.
4. A lady consents to sexual favors when
threatened with bodily harm to her or her relationship. This should be treated
as no consent, but importance should be given to the fact that how much time
she took in complaining and whether there was imminent danger to her or her
relations life. The law must promote people to come forward. The investigation
must value the fact that she approached the police on first available
opportunity, either before the act or immediately after the act.
5. A consent given under the effect of
some hallucination inducing medicine is no consent. But not only must it be
proved that the medicine is administered by accused or his accomplice, and the
traces of medicine were found.
6. A consent given by the girl of age
below 16 is no consent for this section.
7. A consent given by a school girl, or
by a destitute house girl, or by a outsider lady in police station, or a
patient or a relative of patient in Hospital, a female prisoner in jail or by
any of Brahmas Agamyas as listed above, is no consent for this section.
In such cases wherever applicable, the lady certainly can
approach the competent authority set up for sexual harassment, before the act
is done. Moreover for approaching the competent authority on sexual harassment,
there should be some existing fiduciary relationship between the two. A
stranger female goes to meet some minister for some favors, and comes out and complains
to Sexual Harassment body, this should not be admissible as there is no
fiduciary relationship between the two, but if the personal or official staff
of the minister approaches the committee, then yes her complaint must be
lawfully disposed off.
Rape
A.
An act involving penetration of female mouth, vagina or anus by any external object or by any
physical organ like penis, finger, hand
etc shall be termed as rape if done without her consent. This section shall not be applicable if
parties involved are only and only husband and wife, but if husband forces the
wife to have sex with other males along with him then the same shall be termed
as rape if done without her consent.
B.
For the charges to be proved against any accused the sexual
intercourse must be proved by the prosecution and involvement of the accused
must be proved by the prosecution.
C.
There shall not be any presumption with respect to words of
victim, but the judicial officer of the rank higher than that of Session Judge
can consider the case on circumstantial evidence, if it appears that victim was
kept away from complaining or could not complaint due to fear or threat by
accused side. In such matters direct evidence of injury, intercourse may not compel
the court to acquit the accused.
Illustrations
1. Presence of male semen on the female body part or on the
female clothes, is sufficient proof of involvement of accused, this coupled
with the fact that female is no virgin, is the sufficient proof of commission
of act of rape by accused.
2. If the aggrieved female is below the age of 16, and
medically she is found to be no virgin, then accused cannot be absolved on the
sole ground that offense took place long ago and no immediate evidence is found
of intercourse or rape.
3. If the aggrieved female is one of the Agamyas as
identified above, then also the condition as per illustration (2) shall apply.
Sexual Harassment
The policy is wonderful and the same shall be implemented
with some amendments, keeping in view the provability of allegations. S.354 of
IPC must be over hauled to make the same more sensible; criminality should be
attached only to following types of harassment.
1. Improper groping or touching of
female parts against her wishes.
2. Stalking as defined in new amendment.
3. A person, who is warned by the Anti
Sexual Harassment committee once, indulges into the same act with the same female
again.
4. In the work place if the aggrieved
lady does not wish to approach any authority or there is no such authority in
place then she can write an email warning the concern person, and asking him to
stop his advances. This mail can be
written directly to the person or to his senior. If despite this email the
concern person continues to seek sexual favors.
The existence of such email if
received by the concerned person is the sufficient evidence of no consent by
the female, on the matters of sexual favors.
5. Obscene sign or obscene words to
insult the female in the public places, these cases shall be settled in summary
trial if the accused is apprehended on the spot with at least 3 supporting eye
witnesses.
