Vidya Bhushan Arora
First the disclaimers.
This author has no academic qualification in law, and has not even studied the judgements or various observations by the Courts or by Committees which have deliberated upon this issue of Marital rape. This piece is just an attempt to share some random thoughts on the plight of women in Indian society and to contextualise it with the possibility of the High Court striking down the exception to Section 375 of the Indian Penal Code. This Section states that “sexual intercourse by a man with his own wife (over 15 years of age) is not rape.”
It would actually be preposterous to say that non-consensual sexual intercourse in a marriage is acceptable. This should not be tolerated and something concrete must be done to deter the men who practice it against their wives’ wishes. However, activists demanding this section to be struck down maybe over-simplifying this complex relationship. It is important to remember the vast and complex layers of a marriage along with raising this demand. While an institutional change will make this crime visible to the state, it is important to remember that there is more to be done in order to fully serve the intent of this change.
The intent behind such a move, one would presume, is empowering women and ensuring their self-esteem, bodily integrity and dignity is protected. While the desired change in the Indian Penal Code will empower a microscopic section of Indian women who are privileged in many ways, largely belonging to upper caste and upper class strata of society, the question remains if it would make any difference to a woman who faces discrimination, undignified behaviour, abusive conditions, violence at home and in public spaces and various other social and structural discriminations and adversities.
Given the fear, discomfort, social stigma and disappointment faced at the hands of society and state authorities that surrounds resolutions to any crimes against women, it is difficult to imagine the circumstances in a married couple’s life when a wife is courageous and assertive enough that she is capable of lodging a criminal complaint against her husband for rape. It is social conditioning that would perhaps incapacitate them even to refuse intercourse to their husbands, or to push them away if he forces himself upon her. A study revealed that India has the lowest divorce rate in the world, just 1% – which also speaks for itself. In this scenario, it seems to be far-fetched to believe that women who are not able to walk out of abusive marriages would be in a position file a police complaint against non-consensual sex in a marriage. While the author by no means intends to reduce the gravity of this crime or its recognition as such by the state, but the intention is to highlight that such a legal reform would however be insufficient without the social empowerment of women.
There certainly is a need to make more provisions to empower women in marriages, especially considering the institution of inequality that it is. It is imperative that women (and men) are educated to recognise what an abuse/abusive relationship is like. There is special need to focus on educating women coming from the marginalized sections of society. In this context, it is imperative that the state (aided by the courts wherever necessary) should make effective institutional arrangements, with legal sanctity, and possibly such arrangements should be made constitutionally mandatory, to help rehabilitate the battered women (and their children).
Therefore, besides doing something about the non-consensual sex, steps should also be taken for further strengthening and effective implementation of the existing laws like the Protection of Women from Domestic Violence Act 2005. Incidentally, this Act also has a clause defining the sexual abuse, which says, “Sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.” However, this Act seems to have completely failed in its purpose of providing protection to the victims of domestic violence as is evident by the very low conviction rate. Moreover, it is a civil law, and till the time it gets more teeth, it would be difficult to ensure delivery of justice to the victims of domestic violence.
Aside from legal reformation, it is important to stress that we as a society must accept the fact that because of our patriarchal mindsets, we have deprived women of their basic rights for centuries, of the dignity and respect, of education and liberties, and in turn, have not only harmed generations of women but have also harmed the interest of our society by doing so.
The real need is to start from the scratch and make serious attempts to change the patriarchal mindsets. Here is a suggested checklist to start with:
- An institutional arrangement, which works effectively and is capable of responding to the needs of all women in distress, must be put in place by all the state governments. There is an existing scheme of the Union Ministry of Women and Child Development under which ‘One Stop Centres’ (OSCs) have been set up to support women affected by domestic violence or violence in public spaces. There are currently 700 such Centres in the country and 300 more such centres are being planned. Needless to say that for a woman population of over 60 crore, this number is just not enough. Moreover, at present these centres do not have the resources to provide substantial relief to the women in distress and the Centres have to depend upon other state organs (Police Stations, Hospitals, Counsellors, legal help) to extend any worthwhile help. There is a need to make the OSCs more efficient, having separate buildings, self-dependent with more personnel who work full time with these centres, and create sufficient number of such Centres even at the block level. All these centres should be linked with 24-hour Helpline and every Centre should be equipped to take complete care of all the cases reported to it and also do the follow ups. However, presently, there does not seem to be much awareness about even existence of such centres.
- A Central Regulatory Authority (comprising of independent experts) should be formed along with a separate regulatory authority in each State, which would keep watch on the working of One Stop Centres and other institutional arrangements to help women. These Authorities should be set up under a Parliamentary Act and have Constitutional validity.
- Undertake an intense campaign to create awareness about ‘a to z issues’ relating to gender inequality and to break the vicious circle of patriarchal mindset, which results in errant behaviour in men and leads to incidents of violence and discrimination against women. The campaign should be run almost incessantly (in various phases) in every language. Apart from the audio-visual and social media, traditional interpersonal communication methods should be adopted to spread the message across the rural masses.
- Large-scale training programmes should be organized (and this should also be a constant thing) to train volunteers and also equip healthcare workers, Aanganwadi workers, teachers and every possible section of working women who can participate in massive campaign to create awareness about various women related issues – from dealing with domestic violence and taking institutional help to resolve such issues.
- There should be intensive and continuous training programmes for the law-enforcing agencies (and even judicial officers) in gender sensitization to ensure that women in distress do not face awkward situations when they approach police or courts for redressal.
- There should be larger representation of women in law enforcing agencies, especially the state police. Only 12% of the Indian Police were women as of 2020. Women’s share in higher ranks was even lower at 8.72%. Similarly, in judiciary, women’s share is very low as recently pointed out by the Chief Justice of India, N V Ramana. He said that in subordinate judiciary there are 30% women but in High Courts and Supreme Court they form only 11.5% and 12% respectively.
- State should incentivise the education and employment opportunities for all women, especially for those who have been abandoned by their husband.
- The health and nutritional needs of women must be provisioned for in every budget – from the Gram Panchayat to the Union Budget. It must be kept one or two notches above the men to drive home the point that their health and wellbeing is more important for the society.
- Effective and conscious measures should be taken to sensitize everyone on gender issues, and since patriarchy is deeply entrenched, it would actually take mammoth efforts to bring about the desired change. Curriculum in schools and colleges should have this issue as an important topic in every class.
- Political consensus should be built around reserving at least 33% seats for women in state legislatures and in Parliament. Actually, this should have happened much earlier.
The judiciary can intervene here and it would be very useful if it can set a time limit to implement at least some of the above suggestions like it put its food down in the matter of allowing girls to appear for the entrance exams of NDA.