Triple Talaq- The courts, the politics, the society and the media.

Yesterday, the Supreme Court of India finished hearing arguments in a case challenging the constitutionality of the practice of ‘instant triple talaq/talaq-ibidat’, Nikah Halala and polygamy. The issue needs an intersectional analysis. It cannot and should not be seen from the sole perspective, either of law, gender, politics or religion. It is also critical to evaluate the role and quality of discourse.

First, I say this with great respect that in refusing to evaluate the constitutionality of Nikah Halala (Loosely described as a religious requirement that a divorced woman first marry and sleep with another man before returning to her husband) and polygamy and restricting itself only to triple talaq, the Apex Court has abdicated its duty. Despite being urged to do so by the government as well as the All India Personal Law Muslim Board (AIPLMB), the court has also refused to rule on whether all personal laws should come within the ambit of the Constitution of India. Instead, it chooses to continue with analysing whether a practice is essential/fundamental to the religion. This is most disheartening.

The court is not a panchayat, and it is not a priest. I am guessing that the reasons behind the court’s approach to this are (i) the court not wanting to open floodgates of litigation and causing ‘chaos’ in society and, ii) the belief that such changes must happen incrementally. The chaos reason makes no sense especially since the government itself is willing to take the responsibility of maintaining ‘order’. It is rather cruel that women must once again bear the burden of ‘preserving order’ because the court refuses to uphold their rights which are otherwise guaranteed in the constitution.

Secondly, the reasons that are being put forward against abolishing triple talaq. The AIPLMB shamelessly said that the court’s interference might revive a ‘dying practice’. This is tantamount to saying that don’t impose reform or we will wreck even more cruelty on our own brethren. Shame. Some argue that in such situations reform must come ‘from within’. There is (and reasonably so) a certain amount of anxiety being felt by a part of the Muslim community because of the timing of these developments. Is a majoritarian government on a rampage? What if this attempt at ‘liberating Muslim women’ is just a charade to fool people into believing that it is indeed secular and liberal? Flavia Agnes points out in her book Family Laws and Constitutional Claims that in such times religion becomes an even more important marker of identity. She argues that the intended reforms are rendered ineffective because such imposition pits women against their community.

The obvious question is, why didn’t these regressive practices get abolished when other governments were in power. If the intentions of the BJP are indeed mendacious, who is to be blamed for letting things coming to such a pass? The formula of incrementalism has only led to more chaos. It has only led to all political parties pandering to the regressive clergy of all religions.


Third, some people have also expressed pain at the discourse painting Muslims as this regressive, primitive community which abandons women at the drop of a hat. They ask, are there no inhumane practices in other religions? Why aren’t they being dealt with first/together? In her book, Agnes reminds us of the long, painful and continuing journey that is the reform of Hindu Personal Law. Sardar Patel, Rajendra Prasad, and the RSS opposed the right of women to divorce, the abolishing of coparcenary and inheritance to daughters amongst Hindus. Until 1955, polygamy was permitted amongst Hindus. Until 2005, daughters had limited rights in the ancestral property. Marital rape and child marriages are still pervasive across religions. These are, however, arguments in favor of abolishing all regressive laws and practices.

Fourth, the sensationalist approach of the media. The media would have everyone believe that an average Muslim man is a regressive adulterer at best and a terrorist at worst. Tragically, an average non-Muslim rarely interacts with Muslims. Again, all communities, the government, and the courts share blame for this. For instance, there is zero movement on housing discrimination being outlawed. Everyone loves their ghettos. An average non-Muslim learns about Muslims through the media which paints an astonishingly ridiculous picture. The media has failed to educate people about the reform of the personal law in every religion. It has failed to point out that instant triple talaq is not the only way (and by some accounts not even the prevalent) mechanism of divorce. It has failed to inform people that Islam and Muslims are not monoliths. It was duty bound to do so. It must reflect on the damage this failure is resulting in before it is too late.

Finally, instant triple talaq must be abolished pronto. Obviously, these are not the ideal set of circumstances in which this should have happened. But they will have to do. The society, courts and the government already compel women to bear too many cruel burdens. No more.

This article was first published in Mumbai Mirror




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The Great Betrayal

The govt has, for all practical purposes, final veto over the appointment of judges.

Judges of High Courts across the country and the Supreme Court are appointed by a ‘collegium’ consisting of the Chief Justice of India and four senior-most judges of the Supreme Court. This system was a creature of three judgments passed by the Supreme Court, popularly known as the Three Judges Cases. In 2014 the National Judicial Appointments Commission Act and the Constitution (Ninety-Ninth Amendment) Act, 2014 were passed by Parliament, thus replacing the collegium system with a commission comprising of 3 Supreme Court Judges, the Union Minister of Law and Justice, and two ‘eminent persons’. Suffice to say that the NJAC act was a horrible legislation that claimed that the collegium system gave excessive and unchecked power to the judiciary and to remedy this, the act simply gave unchecked and excessive power (over the appointment of judges) to the Parliament.

One of the many common threads running through the Three Judges Cases and the NJAC case was the question that in the event the executive and the court reach a deadlock over a prospective appointee, which organ of the state will get primacy (final veto)? This is a question not just about a procedural conflict, but also one deeply impacting independence of the judiciary. Why is the independence of the judiciary important? Because it keeps the Parliament and the Executive in check and protects citizens from excesses by these organs. Various cases decided by the Supreme Court, including the NJAC case, concluded that independence of the judiciary could not be achieved without judicial primacy over the appointment of judges. In the NJAC case, the Supreme Court held that since independence of the judiciary is an un-amendable feature (part of the basic structure) of the Constitution of India and since this independence cannot be achieved without judicial primacy over appointment of judges, a law which takes away this primacy (the NJAC act) is unconstitutional and is therefore struck down.

The judgment in the NJAC case, however, concluded by saying that the government should draft a Memorandum of Procedure (MOP) to suggest changes in the collegium system and that M.O.P would be vetted by the apex court. This was most bizarre because the changes the government wanted to suggest were being reflected in the NJAC Act. Secondly, why did the Supreme Court not bring about these ‘changes’ and ‘reforms’ in the process of deciding the case, or in the final judgment passed by the court? Your guess is as good as mine. The Union Government, which initially seemed to be reluctant to participate in this exercise, enthusiastically began the process and a to-and-fro over the MOP began. There was much that the judiciary and the government disagreed over.

Meanwhile (presumably a tactic of the government to pressurise the court) appointment of judges to various courts was more or less put on hold by the government much to the anguish, at least of the previous Chief Justice of India, T.S. Thakur, who reportedly broke down in tears over the government’s obstruction and arrogance.

One of the many clauses that were the subject of this deadlock over the MOP was the ‘national security’ clause. The government wanted a veto to reject any judges if it felt ‘national security’ was at risk. This assessment of the government was not open for discussion. The 87th report of the Parliamentary Standing Committee on Law and Justice said that this clause was a bad idea and tantamount to a veto being given to the government. Thakur said as much and expressed concern that this clause would be misused by governments. Ravi Shankar Prasad reportedly gave assurances in Parliament that the government was not seeking a veto.

According to a report in the Times of India, the deadlock over this clause has suddenly been resolved, and the court has conceded with the caveat that the government must give reasons for rejecting someone under the clause. This may look like a compromise at first glance, but the fact is that the government now has the final veto over appointment of judges. This development is contrary to the judgment of the Supreme Court itself in the Second Judges Case and the NJAC case (and therefore violative of the constitution). What was the point of long disputes over decades and especially the entire NJAC case if, finally, primacy was to be given to the executive? We are now in a bizarre situation in which a lengthy, detailed judgment was passed only for a MOP to go against the said judgment, all behind closed doors. There is no provision in the constitution of India which allows for judgments to be altered in this manner. Will this now become a custom? Each time the government is upset with a case, will it be allowed to have closed door discussions with the court, which will end in the judgment being changed? Another fact that casts a shadow over the matter is allegations of corruption against certain judges of the SC (among others) made by Kalikho Pul, the former CM of Arunachal Pradesh, in his suicide note. In an ideal world, all judges named should have recused from all work, including drafting of the M.O.P. We don’t live in an ideal world. The summary is that once again, we have been thoroughly and collectively betrayed by all the organs of the state.

This article was first published in The Mumbai Mirror

On Police Reforms

If you love conspiracy theories, I have one. February has been designated as ‘beat up someone for not being patriotic enough month’. Last year it was Kanhaiya Kumar, this year self-proclaimed patriots are beating up students and professors in Delhi University. Patriotic people are also threatening Gurmehar Kaur with rape and murder for basically saying there should be peace between India and Pakistan. Many people are also claiming that Gurmehar is, in fact, an agent of the ISI. The ISI has a very simple recruitment policy. All you need to do is express an opinion different from the currently popular brand of patriotism.

But worry not, because we have a proactive government in power and the matter is being dealt with at the highest level. Kiren Rijiju, minister of state for home affairs, has expressed anguish. I am no longer sure what the home ministry’s job is, but Wikipedia says it is responsible for the maintenance of internal security and domestic policy and is also the cadre controlling authority for the Indian Police Service. Therefore you will be satisfied to know that the anguish Rijiju expressed was about how Gurmehar’s mind is being polluted. Priti Gandhi, a spokesperson of the BJP, tagged Gurmehar and told her that Gurmehar’s deceased father would be ashamed of her. All is well. I, however, agree with Rijiju. Anyone who wants to talk about peace and interrupt a country in the middle of an orgy of rage certainly has a polluted mind.

I am not going to launch into yet another rant about crazy ideas like freedom of expression or fascism that no sane person cares about. Instead, I have another radical idea: that the police should prevent/promptly hold accountable anyone engaged in violence regardless of the emotions in the mind of the person committing the violence. Even a motive/emotion as exalted as patriotism. To ensure that the police do this, it needs to become professional and free of political control. Politicians survive on popular opinion, if popular opinion is murderous, or if politicians provoke people to become murderous then they often direct the police to look away from people committing violence. Sometimes they also direct the police to frame people who haven’t committed any crime.

Even in matters free of political ramifications/crimes that the average Joe/Jill often becomes a victim of, the common perception is that the police are corrupt. That access to influence and/or wealth is critical to ensure that the police will treat you with respect /discharge its duty well. A friend whose car got stolen went to the police station only to be told by a head constable that he had two options: a) leave twenty-five thousand rupees in a packet, and the car would be delivered to him the next morning b) Scream and shout about this demand of bribery and get the FIR for car theft registered and wait for justice. He paid, and the car was duly delivered.

In 2006, in a PIL filed by Prakash Singh, who retired as the Director General of the BSF, the Supreme Court of India delivered a judgment directing the State and Central governments to bring about police reforms. The judgment, inter-alia, directed governments to ensure that the function of investigation is handled by a part of the police force free of all other duties (this would radically improve the quality and pace of investigation); form a police establishment board that would decide on transfers below the rank of Superintendent of Police; fix a minimum tenure for police officers etc. All this was intended to free the police force of political interference. More than ten years later no government has seriously implemented these reforms. Yesterday even the Supreme Court seemed resigned to this fate. During a hearing in the case seeking implementation of the judgment, the court observed: “Nobody listens to our orders”.

The BJP, which rode to power promising to remove all corruption, overhaul all institutions, and is being led by the greatest prime minister in the world, has also done zilch to implement these reforms. Which is understandable because the home ministry is occupied with the urgent task of identifying each and every anti- national person in India. The police can stay the way it is, patriotism will cure everything.

To be fair, Narendra Modi has done one thing: coined an acronym. In 2014, he said the police need to become S.M.A.R.T. = Strict and Sensitive, Modern and Mobile, Alert and Accountable, Reliable and Responsive, Techno-savvy and Trained.

Unless we enjoy being distracted by this frenzy of patriotism, maybe it is about time we become smart too.

 

This article was first published in Mumbai Mirror

National media’s silence on Kalikho Pul’s suicide note is deafening

First, the facts. A former Chief Minister of a state commits suicide. He leaves behind an emotional suicide note running over 60 pages. The suicide note contains allegations against several politicians, including a sitting Chief Minister, sitting Supreme Court Judges and senior lawyers/legal officers (to the effect that he was asked to pay bribes by people claiming to act on behalf of these judges to swing a decision in his/his party’s favour).

Also Read: Late CM Kalikho Pul’s Tainted SC Judges and Fixed Vetting Process

In any other democratic country, with even an iota of shame, nay, pretence of shame or even notions of integrity, this event would have shaken the country. Everything else would have stopped. Television news channels would have been debating the matter day and night. This would have been a front page news for months in any newspaper which continues to believe that speaking truth to power or demanding accountability is still fashionable.

At least one politician or a judge would have resigned fearing outrage. The government would have probably sanctioned an inquiry headed by a lame-duck pliable person out of need, just to show that something was being done. One would expect nothing less than 2.5 years after so many people came on the streets protesting ‘corruption’ and of course, a Lokpal.

The Brazen Impunity of Ignoring Pul’s Suicide Note

Is any of this happening?

Jaane bhi do yaaron.

What is happening can only be described in two words: brazen impunity. The person who committed suicide was the former Chief Minister of Arunachal Pradesh Kalikho Pul. According to a report here, his wife has petitioned the Chief Justice of India, seeking that a FIR be registered and investigation into the allegations against judges be commenced. The permission of the Chief Justice of India (CJI) is necessary before any FIR can be registered against a Supreme Court Judge.

Also Read: ‘Receipt’ Could Nail SC Judges Who Took Bribes From Late CM Pul

She has reportedly also requested the CJI to place the petition before another judge “in accordance with the judgment in the Veeraswami case for consideration of my request.” The Veeraswami judgment inter alia says that if allegations are being made against the Chief Justice herself, then they must be placed before his brother/sister judge to decide whether the allegations prima facie merit investigation.

Also Read: Exclusive: Kalikho Pul’s Wife Says She’s Lost Faith in Judiciary

Suicide Note Doesn’t Mean an Investigation Can’t be Launched

At the center of this controversy is the suicide note. What is the evidentiary value of this suicide note?

In this case, while the note by itself cannot be a decisive clincher for the allegations contained therein, the first step, (if anyone is interested in investigating the matter that is) is would be to prima facie establish the authenticity of the note. The note is reportedly signed by Kalikho Pul.

Also Read: Late CM Kalikho Pul Blames Corrupt Law Officers in Suicide Note

At the very minimum the authenticity of his signature can be easily established. The second step would be to begin investigation insofar as the allegations are concerned. For instance, the note talks about Pul having met x/y person at x/y Five Star Hotel, this can be easily verified by obtaining the CCTV footage of these hotels.

There are just examples and I’m giving them to counter a narrative which says merely because a sentence is written about someone somewhere does not mean that an investigation should be commenced; especially when senior constitutional functionaries are involved.

Let me make this clear: the fact that today, all we have is a suicide note, is no bar against an investigation being launched. It would be incorrect for anyone to hold that an investigation cannot be commenced merely because there is nothing else, besides the suicide note.

SC Should Take the Lead

While it is important to understand, and discuss the evidentiary value of such a note in strictly legal-technical terms, in my opinion that in an ideal world, a world where the dignity of the highest court of the land was considered sacrosanct and precious, the Supreme Court would, especially in the facts of the case, take the lead in saying that to preserve this dignity we don’t need to wait for enquiries.

In an ideal world, the judges named would want to set extraordinary standards of probity and would resign or recuse from further judicial work. The Supreme Court will not be seen doing justice if all continues as usual despite the dark cloud of those allegations hanging over its head.

They would do this to uphold and practice the principle of natural justice that “Not only must Justice be done; it must also be seen to be done.”

When the Lokpal ‘movement’ was at its peak, many people expressed concern and said the authority of the parliament was being undermined. They said that populist sentiment and mobs should not be dictating the parliament.

Many lamented that if only people at large believed that the Parliament was doing its job and had faith; then maybe things would not have come to such a pass and would have urged elected representatives to reflect.

I say this with complete humility; perhaps there is a lesson in this for the judiciary as well.

 

This article was first published on Quint

Stings being a woman in law.

At a get-together in Delhi which was full of lawyers, I overheard this conversation:

A: Do you know of this (woman) lawyer who’s recently become quite famous?

B: Yes, I have. Why?

A: Well, you know how she’s getting all this coverage and fame? She’s sleeping around.

B: C’mon, how can you possibly know that?

A: Someone told me. And when I met her she was adjusting her attire provocatively.

At a different get-together three months later where the gentlemen in conversation weren’t present, another person spoke about the same lawyer, this time to me:

C: Is that woman your friend?

Me: I know of her, but we aren’t friends. Why?

C: Boss, all her success is happening because she sleeps around. She even dresses provocatively and uses her body language to attract men.

The fascinating thing about these two conversations was that even the words used to describe the woman’s alleged bearing were the same. I knew for a fact that C had never met A or B. So I said “Have you considered that she may just be dressing or acting like she wants to and it is you who are objectifying her? Maybe it is you who feel that if a woman is dressing or moving in a certain way it is obviously for someone’s pleasure and not because that’s how she wants to be? That a woman can have multiple partners only to “get ahead” in life and not because that’s her choice?

C said I was misunderstanding him and that even the quality of the woman’s work was poor, citing how he had witnessed some of this “substandard” work. I found it surprising that criticism of the woman’s work was not the main argument but a supporting claim. Besides, there are plenty of incompetent lawyers who are famous men, why isn’t anyone talking as much about them?

The practice of law is a profession that is extremely hostile to women. Litigation is perceived to be this adversarial contest where victory goes to the person whose style is aggressive, who can shout the loudest, and so on. Women, on the other hand, are generally perceived to be incapable of this aggression. This also surprises me, because most men don’t tire of making jokes about how terrified they are of their wives.

You will be hard-pressed to find a woman lawyer who hasn’t been patronisingly told that this profession is not for them and they should join a company as an in-house counsel. Or clients who when they are recommended a female lawyer don’t ask “Will she be able to argue?”

You will also hear the ‘arranged marriage’ crowd advising bachelors to avoid marrying a lawyer at all costs since she will know too much about her rights, and presuming how an aggressive successful lawyer must be in a terrible marriage because she can’t be coy or submissive. A very senior lawyer I met once proudly told me that he did not “let” his wife practise law because most women lawyers were “loose”.

Despite all these obstacles, when women still choose to pursue law and somehow succeed, the perception is that their success must be because of reasons that have nothing to do with their competence.

Since late 2014 there has only been one woman judge in the Supreme Court, whose total strength after the recent elevations will be 28. Five judges have been recently promoted; not one of them is a woman. As per a report of the Department of Justice cited by legal news website livelaw.com, across the high courts in the country, there are 67 women judges out of the total working strength of 646.

A friend whom I was speaking to recently wondered: Shouldn’t competent judges be chosen regardless of their gender? The truth is, the numbers cited don’t reflect a lack of competence, they only reflect overwhelming prejudice and hostility.

But, why do we need more women judges? Patricia Wald, a former appellate judge in the US and justice on the International Criminal Tribunal for what was once Yugoslavia, was in 2012 quoted by Americas Quarterly, a policy journal of Cornell Law School, as saying: “Being treated by society as a woman can be a vital element of a judge’s experience… A judge is the sum of her experiences and if she has suffered disadvantages or discrimination as a woman, she is apt to be sensitive to its subtle expressions or to paternalism.”

Therefore, by appointing more women judges, institutions are only improving the quality of justice. And no institution which is so thoroughly unjust as to leave out women has any business believing that whatever it is doing is anywhere close to the idea of dispensing justice.

This article was first published in the Mumbai Mirror

Muzaffarnagar 2013: Lest we forget.

Dozens of women are gang raped. Seven (including at least two who were raped in front of their own children) gather the courage to come forward and fight for justice. The accused seem to have powerful friends. They use every trick in the book to abuse the criminal justice machinery. The women and their families are intimidated, the accused secure bail and delay trial by not appearing in court despite court orders.

The police do their best to delay the trial by not registering FIRs, not filing charge-sheets, not ensuring that the witnesses and the victims receive sufficient security. All odds are set against the victims who are fighting institutions which are veterans in this kind of a battle.

Here’s what these institutions (the government, politicians, the police, the courts) appear to be saying to the victims: this may be your first case, but we have done this over and over again. We will crush you. Now comes the twist in the tale. Ordinary folks like you, witness all this happening and refuse to stay quiet. They refuse to forget. They decide to tell these institutions – you may think these women are alone but they’re not. We have had enough. They decide to tell those women that they are not alone. All over the country, people hold candle marches, write to their elected representatives, start tweeting, demanding justice.

Suddenly the fight becomes a little equal. Because the one thing all these institutions fear is ordinary folks, especially angry ordinary folks, especially thousands of them. I don’t know what happens next. If you were writing this story, what do you think would happen next? If this was going on in a movie, let’s call it Rang De Muzaffarnagar, what would need to occur in the script to make you feel happy? Or even proud?

Everything I have shared in the paragraph above is true in the context of the gang-rapes in Muzaffarnagar in 2013. Except for the bit about the Aam Janta deciding to lend their voice to the victims. The gang-rapes in front of children, police delaying FIRs and charge-sheets, courts granting bails on the condition that the accused will not seek adjournments. The accused repeatedly seeking adjournments and no one batting an eyelid. No convictions.

Women and their families being intimidated and receiving death threats. Women being forced to withdraw their cases. In some cases, the investigating officer himself terrorizing the victims. Some of these cases are still going on. In at least one the charge-sheet has not been filed till date. The State government appears to be continuing under the belief that no one is watching. Continuing with the hope that delay will kill the victims who they are not able to scare, or harass to the point of exhaustion.

Why am I repeatedly talking about the failure and/or collusion of the government? Some context is necessary: these rapes happened during the riots in Muzaffarnagar. In 2014, the Supreme Court put the blame for the riots squarely at the door of the Samajwadi Party-led state government. Sangeet Singh Som, who is a sitting MLA of the BJP, is one of the chief accused in the case for allegedly making provocative speeches and uploading incendiary fake videos. Justice Vishnu Sahai Commission’s report on Muzaffarnagar riots of 2013 has also concluded that Sangeet Som was guilty of instigating people to riot. A member of Parliament from BSP has also been accused of giving incendiary speeches and was sent to Judicial Custody in December 2013.

What I’m saying is, the political class has sufficient cause to be united and probably is united. We do, too. The political class has a lot of power at its disposal. We do too. As I’m writing this, I receive a message from a friend. He has shared a quote by Alice Walker: “The most common way people give up power is by thinking they don’t have any.” Those in power seem to be doing their best to crush these victims and to also crush us, because, mark my words, every act of violence against a woman that no one is held responsible for leads to many more acts of violence against women.

Those in power are counting on you to forget. Let me confess, I had forgotten too until I read a thorough report authored by Amnesty International on the matter. Much of the information I have shared here is sourced from their report. The victims, on the other hand, are probably hoping what each of us who have been in such a situation and who, heaven forbid, may one day be in such a situation would be thinking. Fervently hoping justice is done, praying with every iota of our being that we get all the support we can.

Wanting to be told – you’re not alone. Like I said, those in power are hoping you forget. The victims are hoping that you don’t forget, and don’t let anyone forget. From here on, the script is yours to write.

This article was first published in Mumbai Mirror

Explainer on some laws that govern violence against women.

My neighbor once came to me and said she was being followed by a man every day, from the bus stop to her home. He would keep saying “Hi Madam”, “You are cute Madam”, and continued this behavior even after she implored him to stop several times. She wondered something could be done about this. “Surely a person following and saying hi/hello could not be a crime?” she asked me. I dialed 100 and told the police that she was being stalked. The cops’ response: “Is the culprit still there? If not what can we do about it? If he isn’t harming her, how is it a crime? Just ask her to ignore him and he will go away.”

Stalking is a crime, but in this instance even though the letter of the law clearly spelled this out neither the victim nor the cops seemed to know that it was. As far as the police are concerned one of the following three reasons lies at the heart of their giving wrong advice/information:

1 Incompetence (genuinely not aware).

2 Laziness (don’t want the hassle).

3 Malice (have vested interest in discouraging the victim).

This article is an attempt to explain some of the laws that deal with crimes against women, especially some of the changes brought about in the law via amendments in 2013 and some advice on countering the attempts by cops to stonewall a victim trying to file a first information report (FIR).

Indian Penal Code Section 354A (1) which criminalises i) “physical contact and advances involving unwelcome and explicit sexual overtures”, ii) “a demand or request for sexual favors” iii) Showing pornography against the will of a woman and iv) “making sexually colored remarks”.

The punishment for ‘i’ to ‘iii’ is minimum zero to maximum 3 years imprisonment or the payment of a fine, or both. The punishment for ‘iv’ is maximum 1-year imprisonment or a fine or both.

What is an “unwelcome and sexual overture”?

What is unwelcome depends on the consent of the person who is being subjected to this ‘overture’. Something as simple as keeping one’s hand on a woman’s shoulder can be an unwelcome and sexual overture. However, there is nothing draconian about this. It is best to expressly ascertain and respect the personal physical boundaries set by every person.

Let us now take a step backward in the chronological scheme of the Indian Penal Code and discuss Section 354 (as opposed to 354A) which talks about assault or criminal use of force coupled with “outraging the modesty of a woman” (punishment minimum 1 year, maximum 5 years imprisonment+ mandatory fine). What constitutes the “outraging of modesty” and how is it different from, for instance, “physical contact and advances involving explicit overtures”? The act of assaulting and disrobing a woman used to be covered under Section 354, but it is now a separate crime under 354B after amendments in 2013.

Is the act of groping covered under Sections 354 or 354A?

In theory, the answer is that if there’s an “assault”, it will fall under the former, if not, it falls under the latter. The purpose of this discussion regarding the difference between the two provisions is not to confound you with complicated legalese, but to mildly digress and point out that because several provisions appear to overlap and cover the same crime, corrupt cops often try to dupe a victim and draft the FIR in a manner that it results in registration of offences that attract lesser punishment.

The first thing that you must do while filing a complaint is to ensure that the incident is recorded in as much detail as possible. Insist on recording the incident in words that best describe the matter according to you and don’t get persuaded by cops who insist on telling you what words/sentences to use. Pertinent to point out here that even if cops do have their way and record a distorted version of what happened, this can be challenged before the court.

Under Section 354B, the intentional act of assault/use of criminal force+disrobing a woman or the ‘abetment’ (enabling) of this act by someone else can lead to imprisonment of minimum 3 years and maximum 7 years, and a mandatory fine.

Another addition to the Indian Penal Code via the 2013 amendment is the offense of voyeurism. Watching, recording (photographs/video) a woman engaged in a ‘private act’ or the dissemination of such image/video(s) is punishable by imprisonment for minimum 1 year and maximum 3 years plus a mandatory fine when the offence is committed for the first time, and for a minimum 3 years and maximum 7 years for every subsequent offence. The phrase ‘private act’ includes acts where the “victim’s genitals, posterior or breasts are exposed or covered only in underwear; the victim is using a lavatory, or the victim is doing a sexual act that is not of a kind ordinarily done in public”.

Needless to add that as far as the mere act of recording is concerned, this offense gets invoked only if such recording is done without the consent of the victim and while the victim is engaged in such act in a private place where the victim has the reasonable expectation of privacy. For example, the mere act of ‘recording’ a person stripping and running on the streets is not an offense. If the victim has consented to the recording but not to the dissemination, this offense will get triggered.

Getting back to the issue of stalking. It is now a criminal offense, defined as the act of following a woman and contacting her, or attempting to, to initiate a personal interaction despite a clear expression of disinterest by the woman. In case there is any ambiguity over this, a woman saying “no” once is sufficiently “expressing disinterest”. Stalking is punishable by maximum imprisonment of 3 years for the first commission of the offense and maximum 5 years at every subsequent commission.

A most welcome step has been the expansion of the definition of rape to include:

i) The act of inserting the penis not only in the vagina but also in the mouth, and/or urethra of a woman.

ii) Inserting any other part of the body into the anus, urethra or vagina of a woman.

iii) Applying the mouth to the vagina, urethra or the anus of a woman.

iv) Manipulating a woman’s body in a manner to cause penetration in the anus, urethra or the vagina of the woman.

v) Compelling the woman to do any of the above acts with any other person.

The said acts are a crime only if they are done against the will or the consent of the woman. “Against the will” and “without her consent” are phrases used in the provision criminalising rape and the difference between the two is that the latter refers to situations where either consent is obtained by coercion or deceit. It is critical to note here that the absence of resistance by itself does not constitute consent. Without reproducing the letter of the law, I think it suffices to say that unless the woman expresses a firm and clear yes, please believe that consent is absent.

Shifting focus to the procedural aspects, it is critical to know that the registration of a FIR cannot be denied on grounds of ‘territorial jurisdiction’ — an excuse cops often use. They say they are helpless as the crime did not occur in their area. The truth is they are duty bound to register a case and if territorial jurisdiction is lacking, they register what is called a ‘Zero-FIR’, which is subsequently transferred to the relevant police station.

If the information about any of the aforementioned crimes (and many others such as throwing of acid) is given to the cops, their refusal to file a FIR can in fact land them in prison for a minimum period of 6 months and a maximum period of 2 years besides the payment of a mandatory fine. I often tell people that the moment cops refuse to register a FIR in any of the aforementioned cases, the first thing one should do is dial 100 and report that the police thana in question is refusing to lodge a case. You can also report the non-filing of the FIR to senior officers or to the nearest magistrate. If the victim is herself reporting the crime, the FIR must be mandatorily recorded by a woman police officer. If the victim is temporarily or permanently mentally or physically disabled, then the FIR must be recorded at the residence of the person who wants to report the offense or at a place convenient to the person. Moreover, this needs to be done in the presence of a special educator or an interpreter as the case maybe. In such cases, the process of recording the FIR must be video-graphed.

It is important to remember that the FIR need not necessarily be filed by the victim and can be filed by a bystander or any person requested to do so by the victim. The police have no business questioning the authority of the person filing the FIR. The officer writing the FIR is duty bound to read the FIR back to the complainant who must make sure that he/she has noted everything correctly. If not, then corrections must be made. Finally, the complainant is entitled to a free copy of the FIR.

The government of the day needs to do a lot more to make sure that more people are made aware of the provisions of such laws, failing which most of them will remain a dead letter.