Monday, 20 March 2017

Challenge to Unconstitutional Provisions of Anti-Rape Law

I reproduce below the full text of a writ petition I filed in public interest in the Delhi High Court along with two others on 17 March 2017.
Kapil Sibal, among the most eminent lawyers of India, is arguing this case. 

We invoked Article 226 of the Constitution of India  for challenging the validity of some of the provisions of the Criminal Law Amendment Act, 2013 which have made the anti-rape law draconian and easy-to-abuse.

The High Court has issued notice to the Central Government and set July 5, 2017 as the next date of hearing.
​ Kapil​
 has taken on this case pro bono because he saw merit in the arguments I put forth in the petition,  which I drafted personally in consultation with and with inputs from lawyer friends.
​ ​
Kapil is an old friend
 We often disagree on important issues but it has not caused any bitterness on either side.

1.   The petitioners are citizens of India. Petitioner No.1 is an acclaimed social scientist and public intellectual. She is also widely acknowledged as having pioneered women’s rights and human rights activism both in India and abroad. The Petitioner No. 1 currently holds an extremely prestigious fellowship as the Maulana Azad National Professor at the Indian Council of Social Science Research. In addition, she was formerly a Professor, at the Delhi-based Centre for the Study of Developing Societies, as well as the Director of the Centre’s Indic Studies Project. The Petitioner No.1 is also the founder-editor of the internationally acclaimed publication, ‘Manushi – A Journal about Women and Society’ which was started in 1978 and run by the non-profit organization, Manushi Trust. She is known particularly well for her long association with gender justice and women’s rights. Petitioner No. 2 is a woman charged under section 376 read with section 109 of the Indian Penal Code (hereinafter ‘the IPC’) and other offences.  Petitioner No. 3 is a man convicted under section 376 (1) in a case where the Prosecutrix admits voluntary sexual intercourse., But since it is alleged that she is below 18, despite the fact that her age has not been verified by medical examination, he is in jail awaiting sentence.

2.  By this petition, the changes wrought in sections 375 and 376 IPC by the Criminal Law Amendment Act, 2013 are challenged as discriminatory, arbitrary and severely prone to abuse. On the one hand, the definition of “rape” has been widened to include non-penetrative acts incapable of medical corroboration, the cut-off age for “statutory rape” or “child rape” has been raised to 18 and  even for adult rape, ‘consent’ has been defined more strictly. On the other hand ‘judicial discretion to award less than 7 years has been taken away, even though a large number of independently unverifiable cases and even perfectly consensual acts will now be counted as rape. Following these amendments, there has been a startling spurt in false cases in Delhi, with over 53 per cent of the total cases registered in Delhi proving to be fraudulent. Of the total rape complaints in a year, over 25 percent of involve a breach of promise to marry and over 30 percent involve consensual elopements, with revenge emerging as a prime motive for complaint as per studies conducted by the Delhi Commission of Women and the Hindu newspaper.

3.     The Petitioner No.1 in her 35 year long engagement with providing legal aid and counselling for women and disadvantaged or unjustly treated groups and individuals in society, has seen the actual working of laws from very close quarters and is therefore deeply concerned about the growing incidents of misuse and abuse of several laws ostensibly enacted for the protection of women. Through her journal Manushi as well as her active engagement with providing legal aid and advice to women victims of domestic violence and sexual atrocities, the Petitioner No.1 played a leading role in mobilizing public opinion against such crimes. The Petitioner No.1, through painstaking investigations and by building a rapport with the victims of atrocities, was among the first to record and publish first-person testimonies of rape survivors, women battling sexual harassment as well as women survivors of gang rapes during communal riots and massacres. While working in relief camps she was able to document the first-person testimonies of women during the 1984 mass violence against the Sikhs in Delhi. She carried out a similar exercise following 1987 communal riots in Meerut & Maliana followed by Bombay riots of 1992-93. All these reports foregrounded for the first time, women’s experience during riots which till then had rarely got the kind of attention that loss of male lives and property did.

Saturday, 22 October 2016

The Nonsensical Left-Right Binary

It is extremely puzzling why many of those who rejected the politics of the Left have so readily accepted –“Right Wing” as their identity marker and self-definition despite the fact that the term is used as a pejorative by the Left for any one & everyone who dares differ with their partisan and authoritarian politics. Moreover, “left” & “right” are terms borrowed from European history. They have no real equivalence in Indian history nor are they a reliable guide for understanding India’s contemporary politics. By allowing the opponent to decide the terms of the battle, including naming the ideological terrain, we end up as losers even before we have begun the battle.

As is well known, the political terms Left and Right were coined during the French Revolution (1789–1799), referring to the seating arrangement in the Estates General: those who sat on the left generally opposed the monarchy and supported the revolution, including the creation of a republic and secularization, while those on the right were supportive of the traditional institutions of the Old Regime.

The term was later applied to republicanism during the French Revolution in the 18th century, followed by socialism,[communism, anarchism, and social democracy in the 19th and 20th centuries. Since then, the term left-wing has been applied to a broad range of movements including civil rights movements, feminist movements, anti-war movements, and environmental movements, as well as a wide range of political formations.

I have no problem if Europeans or Americans who share a common cultural and ideological heritage feel comfortable using these constraining, archaic and opaque terms to define their political and social identities. But they become absolutely nonsensical when applied in a country like India, which has never witnessed political and social divisions on these lines.
Intellectual slavery to the West is built into the DNA of the Left because they have steadfastly borrowed their ideological paradigms from the West, with Marxism as the core followed by its many hybrids— modernism, structuralism, deconstructionism, subalternism, post modernism and so on. But why should those who want to break out of the intellectual slavery of the West accept as their self-view -the pejorative term “Right Wing” along with all the negative connotations it is loaded with? 

Leftists dub others as “right wing” as a short hand for damning that person as being anti-poor, pro-rich, anti-minorities, anti women, anti freedom, anti-progress, trapped in obscurantism, and anti every positive human value—even though the person may be guilty of no bigger crime than merely differing with or pointing to serious factual infirmities in the political narrative chosen by the Left.

Conversely, the leftists assume that by merely labeling themselves “Left”, they magically acquire for all times to come unquestioned monopoly over all the positive human traits and progressive values known to history—never mind that in reality their track record on all these is mostly disgraceful. In countries or (states within India) where Communists actually came to power, they wrecked the economy, adopted the most tyrannical and oppressive systems of governance and in Soviet Union, China, North Korea etc. carried out genocides against their own people on scales and with brutality that matched Hitler’s extermination of the Jews.

It is noteworthy that none of the leading social reformers of 19th century used such terminology for themselves. Even during the freedom movement, barring leaders of the self professed Communist parties only a small minority of westernized leaders like Nehru used the term Leftist for their worldview. The tallest leader of all–namely Mahatma Gandhi—refused to accept for himself the political binaries presented by Communists who dubbed him “right wing” even though his pro-poor, pro women, pro minorities, pro Dalit credentials as well as track record of mobilizing the people of India against the oppressive colonial regime, were far superior to that of the entire spectrum of leftists of those days.

But Communists could not stomach Gandhi because right from its inception, the Communist Party of India made Hindu-bashing as an essential qualification for being a progressive even while they willingly pandered to Islamists, including Jinnah’s demand for Partition.  A self respecting Hindu is the biggest threat to “secularism” in the eyes of leftists. After Narendra Modi’s rise to power their aversion to anything “Hindu” has assumed pathological dimensions.

Leftists better realize that those who can’t find a self respecting, self chosen nomenclature for their worldview and continue aping ideas which have been discarded even by those who first offered them, are not capable of providing intellectual leadership to their society. Likewise those of us who don’t wish to live by borrowed, outdated ideologies of the West, better not accept the abusive terminology of Leftists as our self-definition. Mahatma Gandhi succeeded in marginalizing the Left in large part because he refused to let them define the rules of the game or its turf. That is why today, Leftists in western countries after firmly discarding Marxism, Leninism, Stalinism, Maoism etc., seek inspiration from Mahatma Gandhi.

First published in, 21st October, 2016, see link (

Sunday, 3 July 2016

Why Salman Khan Doesn't Owe Anybody an Apology

How NCW is Raping its Own Dignity

One can understand frenzied feminists descending like vultures on Salman Khan for his alleged insult to women with his rape analogy.  But for the National Women's Commission ( NCW) to send a summon to Salman Khan with the threat of suing him, is to rape the dignity of NCW-or whatever little there is left of it in this otherwise ineffective and toothless institution.

When is the last time you heard or saw the NCW do something meaningful or memorable for women?  Most of its chairpersons have been political appointees and have therefore used the office to emote profusely while doing very little constructive work. It is also a poorly administered institution without fine tuned systems for responding to challenges that women of India face today. Therefore, all we get from NCW are knee jerk responses to trivial events rather than a well thought out vision and program of action for improving the lot of women.

Left: Lalitha Kumaramangalam-- Raping the dignity of National Commission for Women
Right: Salman Khan--Hounded by frenzied feminists on frivolous charges
At a time when, on a daily basis, we are being confronted with gruesome reports of gang rapes of women and kids, thousands of children being abducted every year for inhuman forms of trafficking, millions of women been sucked into the flesh trade every year, countless women becoming victims of cyber crimes; the NCW had to pick up the most ridiculous issue to flex its muscles. Its chairperson is acting as though a man using the word ’rape’ commits a far more heinous crime than actually raping women. We, however, have not seen such macho threats issued to actual rapists.

Before I offer my reasons for coming out in defence of Salman Khan, let me refresh the readers' memory by quoting, from the original source, the exact statement as well as the background of the controversial remarks.  In response to a reporter's question as to what kind of effort he put in to get the character of wrestler Sultan (in a soon to be released film of the same name, depicting the life of a Haryana’s wrestlers ) physically right, Salman said:

It’s a tough process. You need ample training like the wrestlers. The training Aamir Khan and I have been through is similar or probably a little more than what the wrestlers go through. If we didn’t do it, we wouldn’t be able to fight convincingly in the ring…. I underwent weight training. Then I perfected the moves. I spent 2-3 hours in the day practising those because in the film, I go from the village level akhada to the mat-based ring and then the MMA arena. So I had to do a lot of punching and kicking. I had to be convincing or else I’d look like a fraud.

The reporter then comments, "The shoot must have been gruelling..." To this Salman responds:

While shooting, during those six hours, there’d be so much of lifting and thrusting on the ground involved. That was tough for me because if I was lifting, I’d have to lift the same 120-kilo guy 10 times for 10 different angles. And likewise, get thrown that many times on the ground. This act is not repeated that many times in the real fights in the ring. When I used to walk out of the ring, after the shoot, I used to feel like a raped woman. I couldn’t walk straight. I would eat and then, head right back to training. That couldn’t stop.

Far from finding these remarks offensive, I was actually moved by them for the following reasons:
Salman did not make a casual light hearted comment about rape, nor referto it as an enjoyable sport.  He offers his analogy to refer to the kind of physical pain and torture an actor has to go through in order to do those macho roles involving what is light-heartedly referred to as Bollywood style dishum-dishum, which many youngsters think is a lot of fun.  But describing the gruesome battering the body takes to prepare for, rehearse, and enact those roles for the camera, Salman is in fact de-glamorizing the entire exercise.  He describes the vulnerabilities of screen heroes in real life and how such situations can even lead to grievous and life threatening injuries, as they did in the case of Amitabh Bachhan on the sets of the blockbuster film Coolie’.

If a man who has been put through the grueling experience described by Salman Khan compares it to the physical battering of a raped woman, the analogy is not so inappropriate as to cause a media uproar especially considering that a majority of rapes don't lead to a Nirbhaya like catastrophe.

True, rape is far more than physical trauma—it’s also a violation of a women's selfhood and dignity whereas Salman is undergoing that grueling predicament voluntarily -- for money, name and fame.  But the seriousness of the occupational hazard should not be undermined just as the occupational risks involved in being a pilot flying and dropping provisions to soldiers based in Siachin can’t be lightly dismissed by saying ‘well, he was paid for the job and chose it voluntarily.” Similarly, no one is dismissive of the risks taken by a mountaineer going up  Everest by saying he is well paid and chose to climb the treacherous peaks for name and fame! Remember what a tsunami of national sympathy flowed for Bachhan when he nearly died during the dishum dishum sequence of Coolie!

Moreover, analogies -- whether negative or positive -- are not meant to be taken literally.  For instances, if a poet compares the beauty of his beloved to the radiance of a full moon, it doesn't mean the woman has to have a perfectly round, silver blue face which can be taken as a replica of the moon as seen from the earth.  Likewise, when you say someone eats like a pig, it doesn't mean that the man actually eats muck.

While Salman used the rape analogy to describe a life threatening situation during shooting, in fact, the analogy is often used light heartedly to refer to a range of situations, not just by men but also women.  I have heard young female students describe the experience of sitting through the classes of aggressive teachers who act like bullies vis a vis their pupils as "intellectual rape".

Recently, a well known author talked about the "Rape of the Rupee." Environmentalists often use the phrase "Rape of Mother Earth" to describe the the callous manner in which governments, corporates and other vested interests are plundering and vandalizing this planet unmindful of its consequences for future generations.

 Alexander Pope's satirical poem "Rape of the Lock" is till date taught as a literary classic the world over, including in India even though it uses the term "rape" to poke fun at the foibles, vanities and fantasies of 18th century British women.  Had it been a 21st century Indian male who wrote a similar poem using the term "Rape" in a satirical manner, our frenzied feminists would have stopped at nothing short of seeking the death penalty for him!  Even with Salman many of them menacingly declared that a "mere apology" won't do. Who knows with the majestic Women's Commission leading from the front, they might not be satisfied with anything less than castration or life imprisonment for Salman!  Would the NCW dare demand a ban on Alexander Pope's writings? 

Unfortunately, by making a mountain out of a molehill and hyper-ventilating for days on end on prime time television--self appointed thekedars of women's rights have made activist  women a laughing stock of the nation. Those who cry for frivolous reasons have created conditions for serious backlash on women's issues.  As it is there is a great deal of anger and outrage brewing in society over the all too frequent misuse of the draconian anti rape law which lends itself to easy abuse but has failed miserably to provide relief to genuine victims of brutal rapes, leave alone help in curbing the growing frequency of sexual crimes in our society.

However, women who descend on police stations after a failed live-in relationship to allege that the concerned man was raping them for X number of years on promise of marriage have found it easy to get their estranged lover arrested and locked up in jail even before the start of the trial. This is because the anti rape law mandates that the mere allegation by a woman is enough to book someone for rape, no matter how flimsy the charge. How can a man you voluntarily lived in with for three or four years suddenly become a rapist—all because he doesn’t want to tie the knot of matrimony? Women for whom holy matrimony is so important should not risk fashionable live-in relationships whose basic premise is that both partners are free to walk out if things don’t work out.

Remember the false rape charge made on prime time TV shows by a young woman against film director Madhur Bhandarkar—all because he did not yield to her demand for the role of a film heroine. He had to go all the way up to the Supreme Court to get his name cleared.  Imagine the trauma, not just for the man but his entire family including children, of having your name splashed all over the media as a rapist, when you haven’t been guilty of it. 

Sadly enough, it has become fairly common for an increasing number of women to make totally false allegations of rape for the purpose of extortion and blackmail because the ultra feminist law makes it easy to do so without inviting any punishment. As a result a lot of employers have begun to avoid hiring women in their offices especially if it involves direct contact with them during day to day dealings. While the draconian anti rape law has not really come to the rescue of many genuine rape victims, it has brought into play new prejudices and fears against employing women.

Have our zealous feminists—both male and female—ever objected to trivialization of rape law by such unscrupulous women even though it is causing incalculable damage to women’s credibility and dignity? They would cry murder if any attempts were made to build safeguards against easy misuse of such laws even though it has ruined many innocent lives.

The most bizarre part of this entire saga is that most of those who are baying for Salman's blood go hysterical when it comes to government censorship over pornography or even minor cuts in films like Udta Punjab which are replete with the foulest abuses which are highly sexist. They don't want censorship over pornography which is highly demeaning to the female dignity and filled with gross forms of violence on female bodies treating them as virtual sex slaves.

But they support "verbal censorship" of the most tyrannical variety in our daily conversation. Any attempt by state institutions to curb vulgarity, violence is rejected as unwanted ‘moral policing’ and sign of authoritarianism.  But TV anchors and sundry feminists think they have a god given right to impose their moral code and censorship even on casual conversations.

Do they expect public figures to submit advance script of their daily conversation to the Women's Commission or TV anchors? Such verbal policing would make women the new “Unmentionables” of our society even while they would not be ‘Untouchable” as far as violence against them is concerned.

We must say a firm 'No’ to this fake and frivolous manifestation of political correctness which is distorting public discourse and hence distracting attention from serious issues. 

And my sincere advice to Salman Khan, please don’t buckle under the illegitimate pressure NCW is putting on you to apologize publicly for your comments. Dekhna hai zor kitna bazzoye kaatil mein hai! (Lets see how much power this tyrant is capable of exercising)  Best not to yield to such blackmail because once these viragoes taste blood, there is no stopping them. Would be interesting to see if they dare take the matter to court in which case they may well get a sound drubbing for their frivolity so that next time round these zealots will think ten times before going unleashing their fury on soft targets.

At the same time, you have a good case to file a defamation suit against NCW for humiliating, hounding and blackmailing you publicly day after day on prime time TV!

An edited version of this article was published on July 2, 2016 in (  This is the full version of the same article.

Madhu Kishwar

Madhu Kishwar
इक उम्र असर होने तक… … … … … … … … … … … … … … … … … … … … … … …اک عمر اثر ہونے تک

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