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.

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 19^th 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 www.dnaindia.com, 21st October, 2016, see link (http://www.dnaindia.com/analysis/column-the-nonsensical-left-right-binery-2265967)