By Maya Palit
Back in 2013, the Criminal Law Amendment Act caused ripples for expanding the definition of rape. It added important new provisions to the sexual offences legislation: for example, it included non-peno-vaginal acts under the definition of rape, added more circumstances to the list of aggravated cases of rape, and made the police refusing to file an FIR about rape into an offence. You would think this is all good stuff we should have had long ago, right? Wrong.
Like any other complex socially significant law, it triggered criticism and constructive debates, like the ever-puzzling question of why marital rape still isn’t viewed as a crime in India. The law has faced some non-constructive reactions too. In its simplest form, the backlash sounds like this: some woman will accuse me of rape and I, an innocent man, will be jailed.
On March 17th, former Union Cabinet Minister of Law and Justice and Senior Adv. Kapil Sibal gave this patriarchal panic attack—probably best ignored in a country where rape is under-reported and rapists rarely convicted—an honourable place in the world. He filed a writ petition in the Delhi High Court on behalf of the academic Madhu Kishwar, along with two other petitioners. The petition challenged the 2013 amendments to the rape law (Sibal was, however, one of the cabinet ministers to have overseen the anti-rape law draft). The reason? Concerns about the ‘growing incidents of misuse and abuse’ of the ‘draconian’ and ‘pro-women’ rape law.
The petition puts forward a pretty skewed representation of the anti-rape law, by projecting the idea that rape cases are easy to win, when, in fact, rape convictions were at a five-year low last year. It also cites the patriarchal panic attack’s worst fear: the 2006 Supreme Court’s declaration that the sole testimony of a victim is sufficient for conviction, but doesn’t mention that this holds only if there are other things that corroborate her testimony. (The Supreme Court’s take on sole testimony conceded that rape most often occurs in private spaces, so, logically, there won’t usually be eyewitness accounts or for that matter, direct evidence such as recovered weapons, as in murder cases.) The petition’s most amazing move, though, was to conflate acquittals with false rape cases—the (implicit) assumption being that if the accused wasn’t convicted, the victim must have made up the story. Imagine this assumption being extended to any other part of criminal law and not being greeted with howls of contempt.
The petition has marvelously vague descriptions of the way women apparently misuse the law: “’Crying rape’ is commoner than it used to be.” This gives it the rare advantage of a legal document sounding like uncles discussing the state of the world on WhatsApp. The petition also labels the classification of rape that is non peno-vaginal intercourse as ‘irrational, unreasonable, and unfair’, because there isn’t any chance of medical corroboration, even though the Supreme Court, for some time now, has been saying that medical corroboration isn’t required for rape cases.
This next bit shouldn’t surprise any reader, maintaining as it does perfect integrity with the worldview that made this petition, but again, remember it’s in a writ petition made by a former Union Law Minister, and a CSDS professor. It lashes out at “irresponsible” women’s rights activists, who’ve “lent almost fascist connotations to feminism, with terms like ‘Feminazi’ coming into currency”. Kishwar may have misplaced nostalgia for the good old days of feminism, but mostly this bit just makes you wonder what makes her take American gaalis so seriously—we have our own.
Then confirming Kishwar and Sibal’s worst fears about irresponsible feminists, activist Kavita Krishnan exposed something that they would rather have kept quiet about. In a Facebook post titled ‘Misogyny Makes Progressive Masks Slip, Forges Strange Partnerships’, she pointed out that Sibal is also the defence in the Mahmood Farooqui rape case. So what? Read on. In June 2015, Farooqui, a well-known filmmaker, was accused by an American researcher of forcing her to have oral sex with him in his house. During the trial last year, the defence had denied the fact that there had been any physical intimacy between Farooqui and the prosecutrix, and said no kisses or forced oral sex had taken place. In the end, the court sentenced Farooqui to seven years in August 2016. But two months ago, during the appeal of Farooqui’s conviction in January 2017, the defence put forward the view (through oral arguments, not written ones) that, in fact, Farooqui had been in a relationship with the prosecutrix since January 2015: “In a relationship when people are attracted to each other, things do happen. But it does not mean it is rape.” That’s a pretty impressive change, all the way from Hum Aapke Hain Kaun to Tere Mere Beech Mein Kaisa Hai Ye Bandhan Anjaana.
The latest twist: On March 23rd, Sibal (according to official documents in possession of The Ladies Finger) requested that the sentence on Farooqui be suspended for the time being. The logic being that Kishwar’s PIL, which challenges the constitutional validity of some provisions of the Criminal Law Amendment Act 2013, would have a direct bearing on the case. In the meantime, he sought bail for Farooqui. The court will hear both the bail application and the plea (about the appeal being decided after the PIL is decided) on May 4th.
Krishnan asks sharp questions of this legal turnaround in her Facebook post: “… if the evidence exonerating Farooqui is so powerful and compelling, is his defence shy of allowing the appeal to proceed? Why introduce a wild new theory suggesting that the alleged rape was a consensual occurrence in the context of a ‘relationship’—and then hide behind a challenge to the constitutional validity of the rape law itself?”
In an interview with The Ladies Finger, Krishnan explained her stance. “I am willing to review any law, and in the aftermath of the December 2012 case, our [myself, lawyers like Vrinda Grover, and others] concern was to make sure the changes in the rape law were consistently democratic and in accordance with human rights values. Which is why, amongst other things, we suggested that the Verma Committee shouldn’t recommend the death penalty, or that juveniles shouldn’t be tried in adult courts,” Krishnan said. “But claiming that a law is draconian on the basis that there are a large number of acquittals which does not add up, and [Kishwar’s] petition which implies that a woman should be assumed to be lying until proven otherwise; it is evident that Sibal has a blatant conflict of interest—he is filing a public interest petition on behalf of Kishwar, while also representing a rape-accused individual whom the clause in the petition affects, and furthermore, is using the petition in his appeal. Is it not dishonest to project the private interests of men accused of or convicted or rape, as public interest?,” she continued.
Some questions raised by Kishwar’s petition could definitely do with addressing, such as that of sentencing, and whether the minimum mandatory sentence of seven years is too severe. But a debate about the length of the sentences for rape cannot be conducted in isolation, but instead within a larger context of the sentences for other crimes like assault (some courts have awarded up to five years for [non-sexual, man vs. man] assault in cases where a little finger is fractured). Studies such as lawyer and academic Mrinal Satish’s extensive investigation of the ‘sub-minimum’ sentence in his book Discretion, Discrimination, and the Rule of Law have also identified that the sub-minimum sentence was often misused, and affected by the prejudices of the court rather than legitimate mitigating factors. So often things like the past sexual history of the woman (whether she’d been sexually active before the rape), and the victim knowing the accused before the rape, led to lighter sentences.
Ultimately, Sibal’s obvious conflict of interest, and use of a public interest petition with glaring inaccuracies to make headway on another case, just go to show how murky the legal system can be when it comes to issues of sexual violence. To echo the headline of Krishnan’s FB post, ‘progressive’ is a mask people lose when faced with the slimmest chance of loss of power. And in the meantime, feminist jurisprudence and women’s rights have been put on the line with this demand for a dilution in rape laws, which risks undoing all the work of the activists who fought for a broader definition of rape.
An earlier version of this piece incorrectly reflected some of the changes brought in by the 2013 Criminal Law Amendment Act. This has been corrected.
Madhu Kishwar, Kapil Sibal images courtesy IPL Tweets Now Facebook page & Kapil Sibal Team Facebook page.
Co-published with Firstpost.