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'Whatever violates the integrity of a woman's body should be considered rape'

By Rashme Sehgal

Women's activist Brinda Karat discusses the importance of expanding the definition of rape to include violation of the body by unconventional means, especially in a country where two-thirds of rape cases involve children. A recent Supreme Court judgment refused to accept this stand

Women's activist Brinda Karat is general secretary of the All India Democratic Women's Association (AIDWA). She has been at the forefront of the women's rights movement for the last three decades. The success of AIDWA can be gauged from the fact that its present membership is over 50 lakh women.

In this interview Karat outlines her reaction to the recent judgment of the Supreme Court refusing to expand the definition of rape to include violation of the body even by unconventional means.

What do you feel about the recent judgment on rape given by a bench of the Supreme Court comprising former Chief Justice S Rajendra Babu and Justice GP Mathur?

The comments which appeared in the press about the Supreme Court-related judgment related to the specific definition of rape. This is a matter of extreme concern for us. Seven years ago, the NGO Sakshi had drawn the attention of the court asking that the definition of 'rape' be enlarged so that any violation of the body even by unconventional means can be regarded as rape.

Several women's organisations have also been pressing for this. Unfortunately, our viewpoint has not been accepted.

What exactly is the controversy about?

For background on the Sakshi PIL click here...

Women's organisations have over the years analysed hundreds of cases of sexual assault. We have been demanding that the definition of rape, and especially child rape which constitutes two-thirds of rape cases in the country, must be extended to include the use of objects, instruments and even the use of the finger which is often used to penetrate a child's vagina. The use of different instruments is akin to rape. This is true even for adults. The law remains penis-centric. The present law maintains that violation of a woman's dignity takes place if a penis is thrust into her vagina. But we have pointed out that when an assault of this kind takes place, as was found in Gujarat, the attacker can use sticks and iron rods which are shoved into the vagina or the anus. These cases must be considered rape, but the existing law says otherwise. The punishment for such cases is much less severe since these do not come under the ambit of the rape law.

Our existing law goes into details such as whether the DNA matches and the semen match of the victim match that of the perpetrator of the crime. We are arguing that whatever violates the integrity of a woman's body should be considered rape.

Women's groups are known to have made a representation to the earlier law minister as well...

We had approached the previous Minister of Law Arun Jaitley to review the existing law. He had replied that he found these suggestions too radical. The present SC judgment says that a change in the existing law would go against the Constitution and the culture of India.

The bench has recommended that a screen be placed between the accused and the victims and witnesses so that they do not get intimidated. They have recommended that all questions put to the victims and witnesses must be routed through the judge who would strike out any embarrassing connotation. They have also suggested that victims be given frequent breaks during the recording of their testimonies.

These suggestions are all very well but they do not take into account the ground realities. A team led by the lawyer Kirti Singh has drafted what we believe is a comprehensive rape law which has been given to the Law Commission. In fact, when we met Congress President Sonia Gandhi before the Common Minimum Programme (CMP) was drafted, we mentioned several pending legal issues relating to women. In fact, we had made a written appeal to all parties that a consensus be evolved on the issue of legal reform and to some extent this has been reflected in the CMP.

Some of the issues on which legal reform must be undertaken include the Women's Reservation Bill, the Domestic Violence Bill, the Sexual Assault Bill and the Sexual Harassment at Workplace Bill.

In the latter Bill, for example, we have suggested that all complaints against the employer be made time-bound. We have also suggested steps by which women in the unorganised sector can also register their complaints. The Law Commission has given its recommendations on this subject.

To go back to the issue of rape, don't you think you are overdoing it by including oral sex in this section also?

There are innumerable cases being recorded of forced oral sex in which the male organ is thrust into a woman's mouth. Unless there is a law that looks on all forms of sexual assault as rape, how are these cases going to get reduced?

Judges keep talking about a woman's modesty being outraged. That is simply not enough. The whole approach is to understand that, as in the West where sexual assault and penetration by objects is treated as rape, the same should be considered here also. The violation of a woman's integrity has to be comprehensively viewed and reflected as law.

Do you think the judiciary should become more gender-sensitive?

Of course. So many judicial pronouncements are not gender-sensitive. Take the example of one particular judge who said that since women were misusing the dowry law 498A it should be changed. Whereas those of us who are in the field know that dowry harassment is rising and has assumed alarming proportions.

Indian culture as understood by important members of the judiciary means that Indian women should know their place -- which will always be seven steps behind a man. Men have their own laxman rekha which has little to do with a woman's constitutional rights. It often appears to me that the Constitution of India stops at the bedroom especially since most women are beaten and burnt inside their bedrooms.

The other point that must be emphasised is that knowing a person has got nothing to do with consent. The prosecution often uses this as an argument to say that rape was not committed. If we begin to go by this argument, we will go back to the pre-Mathura rape case period.

The crime of rape is an aggravated crime in which the perpetrator uses the trust established by him to attack his victim.

(Rashme Sehgal is an independent writer and journalist based in New Delhi)

InfoChange News & Features, June 2004