Kind Attn.: Hon’ble Justice J.S. Verma
Ref.: Amendments to IPC 375 / New Criminal Laws of Sexual Assault
While I am preparing this Note, our Nation is filled with profound sadness, deep disappointment and unquenchable anger at the recent gang rape and death of a 23 year old woman of New Delhi, the capital of the Nation. Being a practicing Advocate, although I have deep empathy for all what has happened in New Delhi and is happening in various parts of India recently, I cannot be carried away by emotions only. I can understand that the committee headed by you will be under tremendous pressure by the recent happenings to be carried away to succumb to the demands of various feminist groups and women wings of various political parties to score points and achieve their own hidden agendas.
What is needed is NOT NEW LAWS or AMMEMDMENTS to the Existing Rape Laws / Protection of Women Laws but the WILL of the Administration to carry out the innumerable and vast amount of Existing Laws. It is observed that the Police and the Political class wake up only after their failures and clamour for NEW LAWS to appease the Common Man. The Committee headed by you also will be under tremendous pressure under the present circumstances to do something tangible to show that this Committee has done something new and great. Let the case trial of the recent gang rape be an example of how the judiciary and the police administration work together to give speedy justice. With these few words of introduction, I would like to point out certain aspects of various Women Protection Laws as it already exists now in India and what the educated and powerful women do with them.
- We already have innumerable Criminal and Civil laws already passed for the Protection of Women in every respect but the Law Enforcement Agencies have miserably failed totally in enforcing these laws and protecting women in our Indian society/community. We also find that these same law makers and enforcement agencies are in the forefront of law-breaking oftener.
- It is observed that the women for whom the various Women Protection Laws are made do not use them because they are either ignorant of them or they are the traditional Indian women (“Bharatheeya Nari”) with Indian ethos instilled in them. Our LAW Makers have already made several duplication (even triplication in some matters) of Women Protection Laws and these are one sided and biased, with various loopholes therein, which the “dented and painted” women misuse invariably against their men if their unjust demands are not met by men. Recently the Hon’ble Supreme Court had to severely admonish such tendencies by calling them as “Legal Terrorism”. The various courts at all levels are now filled with these types of False Cases only, filed by these “dented and painted” women supported by their legal Counsels/Advocates who flourish (around the various Family Courts) in India. Because these are False Cases, the conviction rates under such laws (say, the DV ACT, 2005 or 498- A of IPC) are abysmally low and the Advocates/Feminist groups blame the judicial system for not achieving their malicious intent. Such innumerable cases only clog the wheels of justice and slow down the delivery of justice wherever necessary. The DV Act, 2005 and IPC 498-A are used by wives to obtain easy divorce and monthly maintenance from their husbands to lead or after leading a selfish and even immoral lives; the DV Act, 2005 is used even as an easy route to Partition suit against men and their other women relatives and also an easy route to demand various monetary concessions. These laws are too easy for Misuse by the Indian Miss/Mrs. All these are happening because there is no clause in these laws to punish the complainants/petitioners when their cases are proved to be absolutely false. The provisions of laws like IPC 498-A / PWDVA, 2005 and the Divorce and Maintenance laws are OPENLY USED as tools for personal vengeance if the demands of women/wives are not met by men. Misuse Clause is of utmost importance to ensure that the innocent people are not convicted in his/her own society by their own relatives and peers even before the Judgment by a Court of Law. Very often public trial/judgment of such accused takes place also by the Print/Visual Media. If a “boomerang” clause is inserted in each and every Law/Act, only genuine cases will come up before the Hon’ble Courts and the justice delivery system will be smoother.
- As the Institution of Marriage and the Family get destroyed, the crime rate in society is bound to increase. The purpose for which the Family Courts Act, 1984 was passed has miserably missed the target and it is now an instrument for easy breakup of the Family and the Institution of Marriage in India. It is high time for a revisit of the Family Courts Act, 1984 and not a filling of potholes as we do on our roads. Laws should not be built on Emotions but on solid Reasoning/Jurisprudence. Crime does not have any sex, caste, region or religion and so the first priority should be that all Laws should be gender neutral. Sexual Harassment takes place in society irrespective of the gender. So if women do not or cannot rape, why should they be worried about a gender neutral law? Articles 14 and 15 of the Constitution of India promise Equality before Law and the Law maker should enforce it. Art. 15(3) of the Constitution of India does not allow for special provisions, by law, for women and children as often misunderstood even by the lower judiciary. But only Art. Art. 15(5) allows for special provisions, by law, but in matters of Art. 19 (1) (g) only. But to say that women do not contribute to rape or do not commit Sexual Assault is absolutely false and such mind set is wrong and will only increase the crime rate in society as half the humanity go scot free.
- Before DV Act, 2005 was passed, men’s rights activists begged to make the law gender neutral as verbal abuse, mental abuse, economic abuse, sexual abuse, physical abuse, etc are committed by both men and women but no one heard the cry of men and now the women use it extensively to harass their husbands and contribute for the easy breakup of the family. The same mistake as happened with DV Act, 2005 should not happen now with the Sexual Harassment/Assault Law being prepared now. As DV Act, 2005 is often used for treating men as Free ATMs for the monetary demands of women; the same should not happen with any new law. There should not be any monetary compensation and this will reduce the interest of Advocates to file false cases brought forward by women. If a Sexual Crime has been committed, there should be Jail punishment only as deterrent and not any monetary compensation to the victim. If any monetary Fine is to be imposed, the Fine should go to the Government for setting up courts and other expenses.
- For the benefit of Justice, it is imperative that WITHIN the Law itself, there should be the Clause for “the Punishment for Misuse of Law”. Although the “Punishment for Misuse” will not give back to the Accused the Reputation he/she had enjoyed in society earlier or the Time/Life/Money spent for the False Case, this boomerang clause would prevent many a false case being filed and clogging the wheels of Justice. Misuse of any provision of Law must carry the same equal Punishment that would be in a case of Conviction besides Additional Fine for clogging the wheel of Justice. With our Hon’ble courts filled with heavy loads of false cases under the various ‘easy to misuse’ provisions of laws like IPC 498-a, PWDVA 2005, Adultery Law, Divorce and Maintenance Laws, can we open another Pandora’s Box of False Litigations/Cases to burden the already over burdened Judicial System?
- RAPE IS BARBARISM and STATE BARBARISM (Execution/Chemical Castration etc.) IS NOT THE REMEDY.
- LET US BE GUIDED BY REASON AND NOT BY EMOTION.
Adv. Vincent Chirayath
C/o. Thrissur Bar Association,
Kerala – 680 003.