While the definition of rape is now expanded, the new enactment has taken us dangerously in the direction of a sexual security regime than toward more rights

A year after the gruesome gang rape and murder of the young woman on the streets of Delhi comes a moment to pause and reflect on the gains and losses that triggered the response to this event and several others involving issues of sex, sexism and sexuality.

India demonstrated its anger as young men and women poured onto the streets over the issue of violence against women and their unrelenting daily experiences of being groped and harassed in the public sphere.

The protests found a voice in the bold and progressive report of the Verma Committee. The report sought to address the issue of violence against women and sexism through a framework of rights, most notably through the rights to bodily integrity and sexual autonomy. The report marked a significant attempt to shift away from addressing gender violence primarily within the framework of criminal law and carcerality, which has done little to prevent such violence, has reinforced protectionism and infantilism.

Unfortunately, the minuscule minds in Parliament largely ignored the rights dimensions of the Verma committee report. Instead, they enacted a more stringent punitive regime to deal with the crime of rape, including the imposition of the death sentence in some instances. While the definition of rape was expanded, when combined with a strengthened punitive apparatus, it has taken us dangerously in the direction of a sexual security regime rather than toward more rights.

Domain of criminal law

The year has seen a spectacular increase in the reportage of rapes and sexual assaults, including of the appalling gang rape in Mumbai to the recent alleged sexual assault by Tehelka founder Tarun Tejpal, which have been caught under the provisions of the new Criminal Law (Amendment) Act, 2013. If the accused in these specific cases are convicted, they face a mandatory minimum sentence of ten years.

Yet, we need to pause and question whether the criminalisation of the entire spectrum of non-consensual sexual activity and a strengthened punitive regime can serve as an effective recipe for promoting and facilitating women’s human and fundamental rights? Should criminal law continue to remain the primary domain for addressing matters of sex? The LGBT community says a resounding ‘no’ to this question.

The Supreme Court’s verdict on Section 377 has been subjected to near universal condemnation domestically as well as internationally. The provision targets gay men, criminalises and stigmatises the entire LGBT community. The court upheld an archaic, colonial law designed to impose Victorian sexual values on a native population, who were considered lesser humans or non-humans. The minuscule and mean mindset that informs this decision, compromises on the protection of the rights of minorities, which is the cornerstone of the Constitution and our democracy. By pejoratively referring to LGBTs as a small fraction of the population, the court not only failed to protect the rights of a vulnerable minority, it also reproduced a colonial mentality.

More troubling is how the court used the right to equality to justify difference in treatment, based on the rationale that only those who are alike are entitled to sameness in treatment.

Justice Singhvi upheld the distinction between those subjected to Section 377, which criminalises a sexual minority, and those who are not, namely individuals who engage in heterosexual procreative sex. He held that persons “who indulge in carnal intercourse in the ordinary course and who indulge in carnal intercourse against the order of nature constitute different classes, and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.” Thus, in this decision equality is used to legitimise bigotry and homophobia in the criminal law.

Arbitrary distinctions

The court followed a shameful line of precedents in this area that have used a “separate but equal” standard to justify slavery, apartheid, and the persecution of religious minorities, all on the grounds that the classification was reasonable and hence the difference in treatment valid. Equality should be about redressing historical disadvantage, not about upholding arbitrary distinctions under the guise of reasonable classifications.

The criminal law is being used to target sexual activities and sexual groups that we do not like. It is for this reason that non-consensual heterosexual conduct such as marital rape continues to be exempted from its purview, while consensual homosexual sexual relations are not. Women’s rights, together with those of sexual minorities, are being sucked into the vortex of a punitive sexual security apparatus. The battle is in targeting the ill-advised urge to address issues of sex through the criminal law and ensure that it remains firmly, and without compromise, an issue of fundamental rights and human dignity.

(The writer is a professor at the Jindal Global Law School)

*This article has been corrected for a factual error

More In: Comment | Opinion