6 changes we need in Indian Rape Law. RIGHT NOW.

Yes, I know the laws relating to rape in the country have undergone a big change thanks to the Criminal Law Amendment Act of 2013, which was a result of the deliberations of the Justice Verma Committee. Yes I know that rape has become an increasingly important site of debates of public policy, law and women’s rights subsequent to the incident of 16th December 2012.

Despite the changes in the law, however, there are a few significant lacunae in the law that I would like to address. Have tried to keep it simple so that non-lawyers can also understand the legal provisions I am talking about.

1) Remove RAPE from the protection enjoyed by Armed Forces under AFSPA.

What am I talking about? Well the Armed Forces Special Powers Act is a 1958 legislation, described as draconian by its detractors and necessary for the protection of the morale of the Armed Forces by its supporters. I do not wish to debate the Act here. However, this Act, under Section 6, gives  protections to persons Acting under this Act from a prosecution, suit or any legal proceeding, without the previous sanction of the Government.

Interestingly no sanction for prosecution has been intimated by Ministry of Home Affairs and Ministry of Defence to the state government from 1990-2011 under the (Jammu and Kashmir) Armed Forces Special Powers Act, according to the response of the Department to an RTI Application. (Indian Express, Wed Feb 29 2012).

Now this means that in cases of rape, the Armed forces, in effect, enjoy immunity from legal proceedings. Though during hearings the Supreme Court has criticized this invocation of AFSPA in rape cases, the law of the land remains that immunity from any legal action is enjoyed by persons acting under AFSPA.

The position of law has not been changed, despite suggestions from the Justice Verma Committee that military men accused of sexual assault should be tried under normal law.

So the question that all reasonable people need to ask themselves is this:

Can rape be something necessary to commit in the line of duty? Does ‘protecting the nation’ require that dissenters be raped?

2) Make the victim gender neutral

It is time we recognized the principle that YES, men can be raped.

Someday, when power equations in society have changed, and when the socio-political dynamics of rape is different, perhaps we can hope for a completely gender neutral law on sexual assault.

Right now, we need to recognize that men can be, and sometimes are victims of violent sexual assault. Children are protected under the Protection of Children from Sexual Offences Act, 2012. But adult men who face penetrative sexual assault have no recourse but to go under S 377 of the Indian Penal Code. Incidentally this is the same section under which (in theory) consenting adult same sex partners can be booked.

I will leave it to the reader to decide whether this is repugnant to their ideas of justice and decency or not.

3) Recognize Marital Rape

This is for my friends from Mars.

Rapes happen within marriages.

They are violent, and as traumatic as rapes outside marriages.

They need to be recognized.

I remember a long time back when I articulated this idea at a National Level Competition, I really offended a very senior lawyer who started telling me about the obligation that marriage entails. I sincerely hope he was being the Devil’s Advocate, for he went on to say that marriage began as the idea that the man would give bread and protection to the woman in exchange for sex and this was an argument against recognizing marital rape.

So let me say two things:

1) A woman does not ‘give’ sex, she is an equal participant in the act. Just as a man is not always expected to be the sole breadwinner any more. At least in the kind of marriages a society aspires to now.

2) No expectation from a marriage (legitimate or not) justifies violence in a relationship.

I understand that marital rape might be difficult to prove, and I understand that a section of the society with its foot in the past feels incredibly paranoid at the prospect of recognizing it, but given the quality of legal minds in our nation, I don’t see why we can’t at least begin the ground work on bringing this into our statute-books.

4) No death for repeat offenders.

Given the abhorrent  rape that took place in Delhi on 16th of December 2012, the ‘hang the rapist’ mentality got strength.

I understand the pain and the anguish people felt after that fateful night, particularly as horrific details of the incident came to light.

However, our law makers have to be dispassionate. And I do not think they were being dispassionate while drafting Section 376 E of the I.P.C which provides that repeat offenders may be punished with death.

Very practically speaking if the (repeat) rapist knows that the punishment of his crime will be death (ie the same as for murder), he will just murder the very often only witness to the crime, his victim.

Surely that is not the consequence we want?

But aside from the practical consequence, this is ideologically problematic too. So far the only crime punishable with death has been murder (and sedition perhaps). Somewhere this section echoes the idea that rape (or a certain amount of rapes) amount to murder.

Am sorry. They just don’t. A woman is very much alive and our laws should not try to impose on her the idea that the shame/agony of rape equals death. This is not fixing the problem, but amounts to reimposing partiarchy.

5) Include some age proximity clauses in cases of statutory rape.

As much as we would like to deny it, some teenagers have sex. Now since the age of consent is 18 in India (keeping up with Child Right’s Convention norms no doubt), there is a very real situation where consenting sexual activity between a 19 year old man(?) and a 17 year old girl is statutory rape.

Now one way to work around this would have been discretionary sentencing which has been taken away by the new amendment.

Cases of statutory rape with the participants being close to each other in age, and having consented can certainly not merit 7 years of imprisonment.

Hence, something has to be done to fix this anomaly.

6) Chuck  the part of S 377 IPC pertaining to consenting adults.

Yes yes, you may ask me whether this falls squarely under changes needed in our rape laws, and I will tell you that yes it does.

We can not really see violent sexual activity in perspective if we penalize non-heteronormative sex between consenting adults with similarly harsh punishment.

Also, my blog my rules.

Well so here it is, my list of six problematic provisions in our rape laws that are problematic.

Some of you will think that I have not gone far enough, by not questioning ASFPA at all or demanding complete gender neutrality in the law. My answer is I have tried to keep things realistic.

Some of you will think that I have struck at the root of the family or that its terrible that I do not wish that all rapists are hanged. To you I say sentimentality can not be the basis for making laws.

At any rate I welcome your discussions and criticism.

Just don’t call me a feminazi. The death ray is not ready yet.

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About the f-word.

I remember hearing Mr Binayak Sen speak one day.  It was after he had been released on bail, and the lecture was at TISS in Mumbai.

I went there expecting a fiery rhetorical speaker, but I found a quiet soft spoken man who gave the audience facts. Facts of deprivation, malnutrition and the way a significant chunk of our population lives in, what he called (by giving evidence for the same), ‘a state of famine’.

That has a lasting impact on me that fiery oratory could not have. That day was very important for me, for since then I have realized two things:

1) All discussions/ debates must be conducted on logic and evidence alone, if you want to have a lasting legacy.

2) Never make personal attacks on your opponent.

Now *feminism*  has suffered from what can only be called a gross character assassination.  What you will read in the following paragraphs in a dispassionate analysis of the criticisms feminism faces. Parallels can be seen with what ‘liberals’ are facing in India these days. Opposition that is logically flawed, but manages to undercut the logic with personal attacks.

Before I start with that, let me state fairly that feminism is not a monolith. There are different schools of feminism that state different things. But for the purposes of this very general blog post, I will define feminism as a movement that tries to ensure the substantive equality of all genders.

The arguments listed below are not exhaustive arguments.

1) The feminazi argument:

This is probably the argument employed by the least well informed lot of persons. Here what someone (usually a woman) says is countered by calling her a feminazi. Meaning thereby that her views lack perspective or are not in proportion.

Of course I don’t have to spell out the irony here. But I will. It’s fun.

If you want to make a case for proportion do not compare women with strong views to a group that conducted one of the largest genocides in memory.

Digressing a little bit, I don’t like the term grammar nazis and fashoin nazis or whatever, for the same reason. But somehow it is okay (sometimes even cool) to be  a grammar nazi, but not a  feminazi.

2) The ‘if- you-feminists-want-this-you-should-do-that’ argument.

So a typical espousal of this argument would be to tell a woman advocating for the civil domestic violence legislation, that if she wants more people to support it (usually meaning if she wants the speaker to support it), she should tell other women to stop misusing the criminal law.

Well, firstly it is deplorable when any law is misused, but frankly laws often are. There is nothing to show statistically that criminal laws protecting women are more often misused.  (I know some of my able friends will try to cite the number of acquittals in rape cases, but rape is traditionally very difficult to prove, with victims turning hostile very often, sometimes out of fear, sometimes due to inducement, and sometimes because they want to avoid the second round of assault from the criminal justice system)

But for a   moment, if we assume that a section of women do misuse the law, I would like to remind people THERE IS NO INTERNATIONAL WOMEN’S HOTLINE.

I can’t call up and ask other women to do so and so or stop doing so and so.

So the next time I am trying to advocate for correcting a wrong, and you tell me ‘ask other feminists to stop spamming my facebook with where-do-you-want- your hangbag posts then I will support you’, please take a breath and remember THERE IS NO HOTLINE I CAN CALL.  If logic/ reason/ your conscience  supports the content of my argument, the support me. If not I respect your right to disagree.

3) The arm-chair feminist argument.

There are a lot of times you may not like what a affluent woman is saying regarding women’s rights or gender equality. Sometimes it may be due to your prejudices. Sometimes it may be due to hers.

But her bank balance or the fact that she lives in an affluent urban setting is not a very smart way to counter what she is saying.

I have met some amazing women working in villages for the rights of women, battling poverty and standing tall. But that role is not for everyone. And it does not mean that a person cannot be  affluent and still have a legitimate perspective on gender equality.

The experiences of Dalit women and the so called ‘upper caste’ women do not preclude empathy from both sides, and if either one is wrong on facts, fight her on that.

4)  Feminism is concerned about women’s rights only.

Yes, feminism began as a movement that agitated for the rights of women. That is because women are historically disadvantaged. But with time, schools of feminism have taken into account queer voices/ voices of other genders/ dalit voices . Sometimes this has been to the satisfaction of all parties. Sometimes  it has not.

But we are past the time when feminism meant a group of women fighting for women (if ever there was such a time). A large number of men are supportive of the idea that men and women (and other genders) are equal and should enjoy equal opportunities.

A society where men and women are equal benefits everyone, because your public and familial relationships are not based on the exploitation of any gender . I could go on in this vein, but am sure you get the picture.

5) Feminists are too naive/ too extreme/ lesbians.

I would stipulate this argument is as true as any gross racial/ community stereotype.  Don’t want to devote much time to this sillyness, Punjabi’s have a notoriously low attention span and I want them to finish reading. (See what I did there?)

6) Patriarchy does not exist any more, so feminism is not necessary.

Sigh, well this is for my friends from the planet Mars, who have just arrived on earth. Being oblivious to the historical social context, I can quite understand why they would make this argument.

But let me assure you. Patriarchy still exists. Just like racism does. People still have a prejudice against those with disability.

For proof that patriarchy exists please  refer to:

a) Statistics for violence against women all over the world

b) Statistics on sex selective abortion in south asia

c) Statistics of misogyny and sexism at the workplace. Or you could just keep you eyes open, that helps too.

d) Employment statistics of men vis a vis women

e) Access to healthcare of men vis a vis women.

I could go one like this, but I am sure you get the idea.

7) Feminists have multiple divorces, can’t sustain relationships. 

This one was particularly low, and I have seen this smear campaign play out in front of my eyes, about an incredible woman.

Most of the times it is untrue. But since we have been doing so much assuming, let us assume for a moment that such an allegation is true. Please repeat after me:  TWO people get divorced. So for every woman who gets a divorce, there is a man getting a divorce as well. And frankly, a lot of men with multiple failed marriages/ relationships are very well respected in our society.  I don’t see anyone trying to dispute their theories on economics or their oscars based on failed marriages.

Do you know why?

Because it does NOT matter.

8) Feminists can not take jokes.

Sure we can.

Did you hear that one about the higgs boson entering a church?

Some of us will, however, get mad if you make jokes about rape, vaginas and hair brushes etc.

On closer introspection  you will find it has something to do with us being decent human beings.

In conclusion,

In the beginning I promised to write a dispassionate analysis. I hope I have been correct in my logic and reasoning. Some of you will come to me with criticisms of feminism based on its inadequacy to do certain things, address certain perspectives. I welcome that discussion.

Some of you will come up with a variant of the feminazi argument (or its more sophisticated sisters). I will not respond to you.

Feminism is changing with the changing needs of society, but it is the reason I am here today. Writing this blog post. It is the reason I and many girls like me are educated, we can vote, and that some girls are born at all.

In a world that is getting more and more insensitive and violent, the triumph of feminism is what keeps me going.

Its triumph is that I am here writing this, with no fear of repercussions.

P.S The higgs boson went to church since there can be no mass without it.

 

 

 

 

 

 

In defence of the NREGA

Women on site
Women on site

The work site

Not 'unskilled' at all
Not ‘unskilled’ at all

I am rather annoyed by what I call the ‘affluence discourse’. This is when people who are affluent spout opinions on issues that will affect the lives of people  (often voiceless people) and advocate for curtailing their rights and freedoms, for the sake of some abstraction.

An example of such a discourse would be the tin-pot dictator in Shrek telling his soldiers:

‘In this process many of you may lose your lives, but it is a sacrifice I am willing to make’.

Or the conversation I heard in a gym once, with one middle aged lady furiously pedaling and telling the young man next to her:

‘India needs an iron hand you know. It needs a dictator.’

Of course, to her a dictatorship is an abstraction, something that will not really change the nation much except to bolster the GDP and get us better roads. But for others, who don’t belong to the majority, hold unpopular views, or have an alternate sexual orientation, a dictatorship would be disastrous. But the affluence discourse is willing to make that sacrifice, as it were.

So I have written this blog post on another product of the affluence discourse: the myths and propaganda regarding the NREGA (MGNREGA- Mahatma Gandhi National Rural Employment Guarantee Act). There has been an attempt to attack NREGA and classify it as a ‘dole legislation’ ‘muft ki roti’.

I will attempt to refute this.

What basis do I have for writing this?

Well what I write is purely on the basis of my observations over a small period of time in Rajasthan, Ajmer District, and my interactions with women who have been working under the NREGA scheme.

How did I come to be there? I was taken there with a group for 15 lawyers doing a human rights training organized by Ford Foundation and NLSIU, Bangalore. We were shown sites/places in Rajasthan’s Ajmer district by MKSS (Majdoor Kisan Shakti Sangathan).

Some of what I might say, may be true only for Rajasthan, and if so, I would love for those of you in the know to correct me.

 So what is NREGA?

The National Rural Employment Guarantee Act 2005 is a social/ labour legislation that guarantees 100 days of employment to households in rural areas in one financial year. (It is 150 days in  Rajasthan, thanks to the last Government, though the present Government is contemplating reducing it to 100 again)

Though the work done under it is classified as ‘unskilled labour’, after wielding a shovel for ten minutes under the hot Rajasthan sun, I can assure you that there is nothing unskilled about that work.

The aim of this employment guarantee scheme is to give work to adult members of households as well as to create assets for the rural area, such as bunds, kaccha roads (mud roads), schools, trenches for rainwater harvesting, anicuts etc.

The wage that workers are entitled to under NREGA is Rs. 163  a day, which is under the minimum wage in some states.  However, unless the task for the day is completed, the wage can be deducted.  The work hours are from  6 in the morning to 3 in the afternoon, and although the rules in Rajasthan (I was told) provide for task based flexitime, this is not really implemented.

Now, I noticed that in Rajasthan most of the people working under NREGA were women.Men have been migrating for work, or working on stone quarries in Rajasthan. Due to the nature of their employment, and perhaps the harsh weather, a lot of the men die early, leaving young widows who also come and do the NREGA work.

So what this means, in reality, is that women work in Rajasthan from 6 in the morning to 3 in the afternoon, doing hard manual labour, in temperatures running from 45-51* Celsius. I lack the hard realism of my libertarian friends, but nothing that I have ever seen in my life, resembles ‘muft ki roti’ less than this does.

Now I am not claiming that there are no implementation problems in NREGA. The biggest problem is regarding information. A lot of the women did not even know that the wage they were entitled to was Rs 163 . Most did not even receive Rs 100, as they were told they did not meet their daily targets, despite working the whole day. There seems to be  a real lack of transparency in the way their work is evaluated.

Another problem is the issue of attendances being marked for those women who are not present (or who do not turn up for work). While this is a big problem, a simple and elegant solution was suggested by Shankar Singh ji (MKSS). This was the formation for permanent groups for 4-5 members of women to do tasks. This would mean that every woman would keep track of who came and did not come for work. Incidents of fraudulent attendance markings would go down, as a result of women not wanting that extra work falling to their share due to fraudulent attendance marking.

Another problem is not allowing for flexi-time based on completing the task. No matter how fast or slow the women work, they have to remain on site from 6 AM to 3 PM. In the summer this can be an inhuman physical strain, and can affect efficiency, since there is no incentive to do a task at a fast pace.

We were shown an NREGA site that was monitored by an NGO, where the working women formed groups. Here their task for the day was clearly laid out, and they had the choice of going home, if they completed the task early. So if their task gets done by 11 AM, there is no need to stick around till 3 PM. The efficiency does not suffer either, since the specified task has to be completed by the end of the day, for full pay. The focus is on the work output and not the hours spent.  This seems to be another elegant solution to a big problem.

Since my post is titled ‘In defence of NREGA’ I will talk of what I found to be the two most important contributions of NREGA.

The first one is a very real empowerment of women. A lot of the women who work on the NREGA sites are widows, and a lot of others are running the household alone, given the migration of the men. Even those who live with their husbands get some real power as a result of gaining income that comes directly to their bank or post office accounts.

Another important contribution is security. With 150 days of work assured to people, there is some solace to the people in times of drought (akal) in Rajasthan, where droughts come often. We were told that the incidents of looting and violence due to droughts has significantly gone down in the State after NREGA has come into place.

So yes, NREGA has implementation problems, but it is an essential and empowering scheme that can change lives for the better, if implemented well. Even with the way it is implemented, that 150 days of work can make a world of difference to the lives of people.

It is imperative then that the scheme is not torpedoed due to political considerations of ‘my-predecessors- came-up-with-it-so- we-must-sabotage-it’, or worse, due to an abstract libertarian principle that shuns social security measures and employment guarantees.

To put it simply. Abstractions can not take precedence over  the lives and well being of real people.

 

 

 

The way of hate

So today, I am going to go for an allegory rather than a rant.

And because we live in such, ahem, interesting times, I will base this allegory in a place far far away, with people who bear no resemblance to the people of India in 2014 AD.

In the beginning there was one. Because everything always begins with one. This is not really an attempt at Metaphysics, but an allegory does require me to begin with a pseudo-spiritual tone.

So there was one country. We will call it the Motherland. The people of this country were not really aware they were one country, but politics and geography changed, and over ages they continued to borrow from one another. The interesting thing was that their primary religion (the called it the gnost) was not really a ‘religion’.  It did not have that desire to market itself, nor did it really have the exclusivity of a modern country club. Their Gods were interesting, just like people. Some of them were egoistical, some got angry, one took the shape of a sage to seduce his wife, and one was a really good person who married a hundred rape survivors, just to prove that rape could not diminish the worth of a woman. ( Well marrying a hundred women is problematic too, but that is for another day).

Their religious works were really poems which could give Shakespeare a run for his money!

As is the wont of a large country, many foreign gnosts (I will not say religion) also came into it, and they got along just fine. Architectural tips were exchanged, scripts, art, words, emotions, mannerisms. Everyone found a place, and the narrative got very very nuanced.

Now it is time to introduce the bad guys in my allegory. Colonel Hateful and the Duke Anti-nuance. There were two fast friends who first met at the  ‘Simple Linear Narrative Welfare Club’, a fine organization that required that nuance be removed from all narratives. In fact it is in deference to their wishes that I have chosen this format of story-telling.

They decided to get together and write a history of their Motherland. Now the problem was that it was just too damn nuanced They did not know where they were supposed to fit in the village republics, with the golden age and then the new rulers from outside. There was also the worrying lack of villains in the story.

We all know that stories don’t sell without villains! Look at me, I just invented two characters to explain a significant historical churning, just because we all love villains!

Now what the villains of my story did was that they took the history of a country and turned it into a potboiler/ cheaply written novel. They convinced people that there were bad guys (who necessarily belonged to another group), and there were good guys. They threw in a sense of outrage, they gave simple solutions. (Expel, censure, kill, threaten. bully, stop, repeat…)

But I am tired of the allegorical theme now. I will describe a crime to you, and then I am off to lunch.

Last night one Miss Empathy (religion: none of your damn business) was walking down History Boulevard. Colonel Hateful Ambushed her, slapped her. She fell down.He then took out a revolver (with a smart sounding name no doubt), and shot her. Reloaded. And shot her again. In all 15 shots were fired.

Colonel Hateful went scott free though. The Courts thought it was a clear-cut case of self-defense.

 

 

The importance of being incredulous

I recently read Kiran Nagarkar’s book ‘God’s Little Soldier’, and it made me think about doubt. To those who have not read the book, or the back cover,  I will explain this in a bit.

Not that I have not thought about doubt before. Ever since I mustered up enough brain cells to string thoughts together (okay, maybe a little after that) I have not really been convinced about God. Or religion. Or group identities. I don’t really think I am alone in this. It seems to be the bane of a lot of people.

But I see those that can believe, and I envy them. I envy them their peace of mind, their firm belief in the ‘right-ness’ of what they do, their ability to chant names and belong in a group.

But that brings me to the story in the book I mentioned. God’s Little Soldier is about two brothers. One a fanatic, who cannot but devote himself wholeheartedly to causes he takes up. The other is a liberal, plagued by doubt. Their lives are the anti-thesis of each other, even though they intersect at times.

Now this is not the only example of brothers who are anti-thesis of each other. I recollect wondering many-a-times whether the history of India, or its collective consciousness would be different if Darah Shiko had not been put to death the way he was. An erudite and moderate man, he worked so hard on bringing religions together. In fact he is famous for translating the Upanishads into Persian.

In a world where extremism is so rampant, it is hardly surprising that he was put to death, since he is even credited with saying, in a speculative hypothesis, that the work referred to in the Qur’an as the “Kitab al-maknun” (or the hidden book), is none other than the Upanishads.

Is that how greatness is supposed to die? Paraded in chains on a filthy elephant?

But then again he was beaten by a man who is called the ‘Alamgir’ (“world-seizer or universe-seizer”). Actually the latter seems to have done a pretty good job of ruling (religious persecution aside). Further, not dying is a very desirable quality in a king. (At least not dying for an extended period of time). But I ramble.

My point is that extremists seem to do pretty well, given that their world view is not always amenable to logic, reasonableness, or hell common decency.

Why then should one ‘be’ a liberal? (This question, you will point out makes the fatal assumption that one really chooses to be anything). Are extremists not extremists because of their mental make-up? And can heretics, apostates, and plain old doubters help themselves? If they could, perhaps a lot of people would chooses to be on the side that wins (by clubbing the opposition on the head).

But if one thinks about it, standing on the Sisyphean mountain of ones own doubt, just before the boulder of another person’s dogma rolls over you, is there no joy in freedom?