The Criminal Law (Amendment) Bill 2012, which was introduced in Parliament by Home Minister Sushilkumar Shinde last month, has several lacunae. It fails to address the shortcomings in existing rape laws, exempts marital rape and excludes crimes such as molestation, verbal abuse, stripping and stalking from its ambit. The bill also introduces the clause of gender-neutrality in cases of sexual assault.
One of the pressing concerns is the exemption of marital rape. Under the IPC, there is an exception when sexual intercourse is committed without the consent of the wife if she is above 15 years of age. Numerous activists and lawyers have called for the removal of this, as it legitimises marital rape. The new amendment bill retains the exception but increases the age from 15 to 16 years. "How is it that just because a woman is married, she has no right over her body and sexuality?" asked Kavita Krishnan, national secretary, All India Progressive Women Association. At the same time, the bill has increased the age of consent from 16 to 18. "This is our schizophrenic attitude to sex and marriage, we like to believe that marital sex is the norm and everything else is an exception," said V. Geetha, a writer and an activist based in Chennai. "Not acknowledging marital rape is central to the way the state sees marriage: the wife as property. And the patriarchal family as sacrosanct," said V. Geetha.
To increase the age of consent is an extremely regressive measure, according to Vrinda Grover, a women's rights lawyer. "There is increased consensual sexual activity among youngsters today. To criminalise consensual sex is particularly dangerous in a society like ours, which is plagued by patriarchal notions of honour," she said.
Gender neutrality in cases of sexual assault have been used in international laws, however critics in India feel that this is ignoring the gender-specific nature of sexual assaults in the country. "A sweeping generalization is not right. To consider women as perpetrators...we don't want to open the floodgates for situations like this. Sure, we have such cases, in say custodial situations, or mental institutions. But there should be a separate clause for cases such as these," said Krishnan.
The amendment bill also retains the term "outrage the modesty of a woman" when it comes to sexual assault. Critics say this definition has to change. "Rape is related to the sexual cultures we are socialized into, where we are overly anxious about women's modesty and honour. We have always said that rape has to be treated as a crime against bodily integrity," said V. Geetha. Further, Section 375 of the IPC uses the term "sexual purpose" when it comes to sexual assault, which could weaken a case in court as purpose or intent is hard to prove. According to Geetha, the law has to be redefined, where a violent touch is that which is forceful and which aims to harm a woman's bodily and sexual integrity.