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.
