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The absurdity of laws

By Debolina Dutta

Here are glimpses of some of the laws that work as a tool in the hands of the state to regulate sexuality in the name of preserving 'morals' and protecting 'decent' people from 'sexual contamination'

Rape

Section 375 of the Indian Penal Code (IPC) only considers forced peno-vaginal penetration to be rape. Penetration with any other object, be it life-threatening (a knife, an iron rod, etc), though more physically harmful is not rape. The penis is accorded a privileged position in comparison with other objects that can be inserted, because of the primacy put on the virginity of women. The rupture of a woman’s hymen -- the ultimate symbol of her sexual purity -- must be avoided at all costs. “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape,” according to this section. In other words, forced sex within marriage is outside the scope of the offence of rape.

The term ‘rape’ itself is a patriarchal construct, where the offence is understood to be the plundering of property of a man/society/community and not a violation of the right to bodily integrity of the woman.

Outraging the modesty of a woman

Any form of sexual violation that does not fall within the narrow ambit of the offence of rape falls under Sections 354 and 509 of the IPC. Even though these sections intend to protect women’s ‘modesty’, the IPC nowhere defines what constitutes ‘modesty’. Since the understanding of ‘modesty’ is moralistically constructed, the section can get subjectively interpreted to apply to only certain kind of women (chaste, sexually innocent/passive, etc) who can be said to be the sole possessors of ‘modesty’.

The sections work on a moralistic premise that understands ‘modesty’ to be possessed only by certain kinds of women who appear to be ‘modest’, and thus lay down invisible qualifications through which women can avail of the guarantee in them. For example, a woman’s mannerisms, walk, make-up, mode of dressing, hour of the day when she is out may be deciding factors when she claims the protection of her ‘modesty’! 

Unnatural offences

Section 377 does not criminalise homosexuality per se. But what the law regulates is any form of bodily intercourse that does not conform to being peno-vaginal in nature. This law is an import of Victorian/Judeo-Christian morality and attempts to criminalise all forms of non-procreative sex. The section or the IPC does not define what it calls ‘unnatural sex’, to distinguish it from ‘natural sex’.

In this section the question of consent is inconsequential when it comes to sexual acts ‘against the order of nature’. Section 377 criminalises voluntary intercourse, thereby meaning that this law actually has no human ‘victim’ to protect. What it protects are normative standards of ‘acceptable’ sexual behaviour: culture, morality and tradition. Though, on the face of it, the provision appears to be neutral, there’s been enough documentation to establish that the section is used primarily to harass and extort money from those who do not fit into conservative sexual roles, primarily gay men, hijras, kothis and men who have sex with men (MSM).

In case of an offence like marital rape, the law operates on an understanding where it takes the private sphere within a marriage to be outside its reach, where it decides not to interfere to cause discord and sanctions that the husband, by right, can forcefully have peno-vaginal sex with his wife. However, anal or oral sex in a traditional heterosexual context -- even within marriage -- is ‘against the order of nature’, according to Section 377!

Child sexual abuse

In India there is no separate law on child sexual abuse (CSA). The only legal recourse for the offence of CSA are Sections 375 (rape), 354 (outraging of modesty) and 377 (unnatural offences), which fail to arrest the unique nature of the sexual abuse of children. As the above provisions only consider peno-vaginal penetration to be rape, they provide for an extremely inadequate and moralistic understanding of other forms of abuse faced by girls who are not ‘raped’.

There is also no protection for boy-children who face sexual abuse not amounting to penetration, and this provides an opportunity for the government to pit child rights groups against sexual rights groups, in the name of upholding an archaic, oppressive and discriminatory law like Section 377.

Adultery

Section 497 of the IPC makes a man culpable for the offence of adultery, with regard to his having sexual intercourse with a ‘married’ woman. Whether the woman was complicit in the act of sex is not only inconsequential, it also falls back on the moralistic notion that sexually passive ‘Indian’ women can never voluntarily engage in acts of sex outside marriage. The procedural criminal law (Section 198, Criminal Procedure Code), further allows the husband, who is called the ‘aggrieved person’, to prosecute the man who has had adulterous sexual intercourse with his wife. It, however, does not allow the wife of a man to prosecute the other woman with whom he might have had an adulterous relationship. Interestingly, a close reading of the section reveals that if the husband had consented or connived in the sexual intercourse between his wife and the other man, it would technically not qualify as the offence of adultery.

As part of the chapter titled ‘Offences against Marriage’, the criminal law on adultery does not simply protect the sanctity of the marital relationship, rather it protects the husband’s interest in exclusive access to his wife’s sexuality.

Sex work and trafficking

The current legislation in India in the form of the Immoral Traffic in Persons (Prevention) Act (PITA) conflates sex work and trafficking, that is, whoever gets trafficked always ends up being a ‘prostitute’. It also considers prostitution to be outrightly ‘immoral’ and does not define what the law means by ‘trafficking’. Sex work is tolerated, meaning that it is neither legal nor illegal. So, while it is tolerated the rest of society needs to be protected from these ‘bad women’. Thus the state attempts to contain prostitution within certain areas away from ‘public places’ and ‘notified areas’ of a city.

The definition of ‘prostitute’ under PITA is an ambiguous term and the police do not have any criteria for deciding which woman is a ‘prostitute’. In other words, any woman can be harassed and abused by the police on the pretext of soliciting in a public place!

Working privately and independently as a ‘prostitute’ is not an offence. However a sex worker can be removed from any place at the request of a magistrate, and a brothel containing two or more sex workers can be closed down. The Act also incriminates any person above 18 years of age who lives on the income of a ‘prostitute’, which could also include her family members and children.

(Compiled by Debolina Dutta, a final year student of law who works on issues of child rights. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.)

InfoChange News & Features February 2006