Manoj Mitta | TNN
Persisting differences within the Cabinet on the rape Bill will not just make it harder to replace the ordinance on rape laws before it lapses in less than a month (April 4)—the government may also have to amend the Protection of Children from Sexual Offences Act (PCSO) which was passed by Parliament just 10 months ago. This is because the differences over the rape Bill, however they are resolved within the Cabinet and in the two Houses, are unlikely to remove all the anomalies thrown up by the hurriedly drafted ordinance promulgated last month following the outrage over the Nirbhaya gang rape.
The inconsistencies between the sexual offences pertaining to adults and children underscore the failure of policymakers to think through the provisions. Consider the extent of the legislative mess that remains to be cleared on so crucial an issue as gender crimes.
AGE OF CONSENT|This is one of the sticking points because PCSO had, in a controversial move, raised the permissible age for consensual sex from 16 to 18 years. Then, in a bid to make the statute book consistent, the government introduced a legislative proposal on December 4, increasing the age of consent to 18 even in the general law, the IPC. But the J S Verma Committee, set up in the wake of the Nirbhaya incident, applied a corrective by recommending that the age of consent remain 16 as it has been for over seven decades. The government, however, disregarded this advice. While the parliamentary standing committee endorsed the government’s stand, feminist groups demanded that consensual sex among teens should not be criminalised unless the age gap was more than four years. The upshot is that if the government decides to retain the age of consent in IPC at 16, it will have to amend PSCO to bring it in alignment with the new policy.
|The government is also under pressure to depart from the radical approach adopted in the ordinance where the term “rape” was replaced with the broader, genderneutral offence of “sexual assault”. The ordinance is contrary to the Verma report as well as the demands made by feminist groups. The argument in favor of retaining the term “rape” as a crime committed by men is that the gender-neutral provision will make women, “the real victims”, even more vulnerable to sexual crimes. The possibility of counter-complaints against women would have a chilling effect on their ability to seek legal remedy after being subjected to sexual offences. If it does not abandon its gender-neutrality proposal, the government runs the risk of enacting a law that is opposed by the very section it is meant to protect.
MARITAL RAPE | PCSO and the ordinance are at odds on this issue. PCSO, which applies to all children below 18, makes no exception for the rape of a girl by her husband. But marital rape is penalized by the ordinance only when the wife is below 16. The wives above 16 are statutorily barred from accusing their husbands of non-consensual sex. This one-sided restriction means that a husband can accused wife of rape while the wife can make such an allegation only if she is below 16.
LESSER PUNISHMENT FOR CRIMES AGAINST CHILDREN
| This is a reversal of the global pattern of prescribing greater punishment for crimes against children. Consider some of the anomalies that need to be fixed. While the minimum punishment in PCSO for a non-contact sexual assault is seven years, the minimum in the ordinance for the same offence is 10 years. If the offender touches the private parts of a girl under 18, the punishment under PCSO ranges from three to five years. But if the victim is a woman over 18, then the punishment under the ordinance ranges from 10 years to life imprisonment.
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