“Making Out” will land Young Couples in Jail under the New Ordinance

The recently enacted Criminal Law Amendment Ordinance of 2013 is a glaring reflective of what happens when the Government suddenly wakes up after 170 years of its slumber, and decides to enact a law overnight in order to appease the public. The travesty is underscored by a simple fact which shows flagrant disregard of the overarching and illustrative jurisprudence of Rape Laws, and the judicial trajectory, before enacting a law as grave and arbitrary as the present one. The legislative powers of the President on the advice of the Cabinet to promulgate an ordinance under Article 123 have been strategic to say the least, at a time when the people wanted something to be done, something was indeed done within nine days of the date when the recommendations of the Justice Verma Commission were brought into the public domain, but with no regard whatsoever to the repercussions that the new ordinance may posit.

The recommendations and the elaborate rationale given by the Justice Verma Committee has been selectively followed, exercising a pick and choose option, which is another hiatus suggestive of the lack of binding character, courtesy Commission of Inquiry Act, 1952. To say the least, the Reports of the Law Commission of India (84th, 152nd, 154th, 156th, 172nd, and 221st) and Justice Malimath Committee Report have been overlooked while drafting the said ordinance expressing the lack of binding character, which has reduced the potency of these reports to mere intellectual and academic in value.

A gist of changes that have been made to the Indian Penal Code include the incorporation of Section 326 B (causing grievous hurt by acid attacks), 166 A (failure of the police to register FIR for offences under 326 B, 375, and 354, inter alia), 354 A (Sexual Harassment, including abetment), 354 C (Voyeurism), 354 D (Stalking) 370 (Trafficking) and 375 (Sexual Assault).

The genesis of the problems lies in the drafting of the provisions. The changes incorporated in the nomenclature of the term “Sexual Assault” instead of “Rape” are not merely a semantic or etymological exercise, but goes on to bring within its ambit everything that may potentially be construed as a 13th century proclamation of forbearance.

Distinction between “Penetrative” and “Non Penetrative” Sexual Assault

The offence of Sexual Assault under the new law has been sub classified into two denominations, namely: penetrative and non-penetrative. Penal Penetration, oral penetration, anal penetration and penetration by other objects is termed to fall squarely within the definition of the offence. Non penetrative sexual assault is however made operational by sub clause (d) i.e. by applying mouth to the penis, vagina, anus, urethra, of another person; and (e) i.e. by touching the penis, vagina, breast, anus of the other person, or to make him/ her touch others’. If the quantum of punishment for non-penetrative sexual assault is kept at the same footing as that of Penetrative Sexual Assault, every act of non-consensual touching would squarely attract a maximum term of life imprisonment. In countries around the world, the distinction made is between rape and sexual assault, wherein penetration falls within the ambit of the former, whereas non penetrative acts fall within the latter. The punishments awarded are different for the two categories. However this juxtaposition of penetrative and non-penetrative sexual assaults and attracting similar penalty for the same under the present ordinance is neither prudent, nor desirable, but out rightly arbitrary.

Age of Consent: Another Glaring Lacuna

As soon as we came to the sordid conclusion that the distinction between the two separate categories was arbitrary, the arbitrariness scaled new heights with the increment in the age of consent from 16 years to 18 years. On a bare perusal of the sixth explanation appended to the provision, the ramifications and their potential distortion becomes fatal. The biggest threat posed by the ordinance would be to the youngsters who, even if are consenting, have to face the wrath of the punishment envisaged under Section 376 which is a minimum of seven years of  rigorous imprisonment, but which can go on to life imprisonment.

Let us now assume a situation wherein a young couple is making out. By virtue of the new law, they will be held guilty of an offence as grave as “sexual assault” for which the person may be imprisoned for life. The term “consent” is of vital significance as it means and includes an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act. Is the law then to presume that the acquiescence of a girl who is above 16 years of age, but below 18 years of age not “consent” in its technical sense.

Ways in which the Present Law will be misused

The pragmatic application of the law will bestow unfettered powers at the hands of the police and the state enforcement agencies. A sizeable number of cases are filed by parents/ relatives against the eloped couples. This will facilitate in the rate of escalation of such cases which are already stand at such large numbers. The police officers, as historical evidence suggests, often leave spaces in the FIR to add more provisions. Before registering the FIR, they will resort to taking bribery through blackmailing to either book the “so called accused” under the heavier and harsher provisions such as sexual assault or to convert the same as an offence under Section 354 (outraging modesty of a woman). It is also noteworthy, that for the same conduct, there exist multiple penalties, If there is an act of non-consensual touching, the accused can be booked under 354 (punishable with minimum imprisonment of 1 year), as well as under Section 375(punishable up to life imprisonment).  The choice before the policeman is obvious, booking the poor couple (in this case) under Section 375 rather than booking him under a relatively lighter offence.

I find solace in the words of Bentham who made a crucial remark when he suggested that “Laws governing Morality, will tend have an element of subjectivity” but even the great theorist could never imagine the extent to which subjectivity will be shrouded in the veil of arbitrariness. The present circumstances warrant reminiscence of a clichéd phrase: to do a little good; one must not pave the way to opening a hundred evil doors. A law which is for the protection of its citizenry must not become a perpetrator in disguise. We are a nation governed under the rule of law, and therefore the enactment of the law has to be just, fair and reasonable. If the law is ex facie arbitrary, the implementation of the law can only be guessed at.