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Out of sync
In 1940, the tide was yet to turn against Hitler's armies in World War II. Jinnah's Muslim League adopted the fateful Pakistan resolution and Gandhi was still two years away from launching the Quit India Movement. Raj Kapoor, who is credited with introducing the genre of teenage romance by casting his son Rishi Kapoor in Bobby, was himself still seven years away from getting his break in the lead role in Neel Kamal. It was also the year in which the colonial government fixed 16 as the age of consent for a girl to engage in sex, irrespective of whether she was married to her partner or not. In the 72 years that have lapsed since then, when Raj Kapoor's grandson and Rishi Kapoor's son, Ranbir Kapoor, has emerged as a teenage heartthrob, Indian society has suddenly turned conservative. Or so, the Cabinet headed by Manmohan Singh would have us believe. For, on the recommendation of a parliamentary standing committee, the Cabinet decided on April 26 to introduce a Bill increasing the age of consent from 16 to 18 years. This unexpected development raises sociolegal questions: How can a freedom enjoyed by the fans of two generations of the Kapoor family be withdrawn from those growing up on the films of the scion of the third generation?
How can a colonial legacy, which has been embraced by the Republic without a demur for the first six decades of its existence, be suddenly rejected as a Western notion alien to Indian culture? Would the criminalisation of consensual sex among teenagers between 16 and 18 not drive it underground and prove counterproductive?
Whether the two Houses of Parliament will address such questions when the Bill comes up for voting remains to be seen. What is surprising is that there is little explanation available in the December 2011 standing committee report, although that is the whole basis of the proposed far-reaching change. The standing committee's failure to make a case for raising the age of consent is a tacit admission that its recommendation is out of sync with social mores.
It is a pity that reactionary elements have been allowed to hijack the Bill which was originally meant to redress the legal lacunae exposed by the December 2009 verdict in the Ruchika Girhotra molestation and suicide case. The light sentence of six months received by a former DGP of Haryana at the conclusion of a 19-year trial provoked an outrage over the absence of any special law dealing with molestation of children. The Bill - as cleared by the Cabinet - threatens to create fresh problems for children (by criminalising teenage sex) even as it tackles some existing ones (by prescribing severe penalties for their molestation).
The government has yielded to rightwing pressures on the age of consent issue at a time when it has otherwise come up with some long overdue and very progressive Bills. The discussion in the Rajya Sabha last week over a Bill amending marriage laws is a case in point. Besides seeking to make it easier for couples to obtain divorce by mutual consent, the Bill has introduced irretrievable breakdown of marriage as a ground for divorce. On Opposition leader Arun Jaitley's suggestion, law minister Salman Khurshid has agreed to consider strengthening the financial safeguards for the wife in the event of divorce. Another heartening example of a progressive Bill is the one dealing with sexual harassment at the workplace. The government, on a standing committee recommendation, has extended the protection of the Bill to domestic maids as well. Unlike in the case of employees of big organisations, the complaints of domestic maids are proposed to be taken up by a machinery that will be set up in each ward.
Despite such efforts to enact laws responding to perceived needs of society, there is a huge backlog of subjects mired in all sorts of gender prejudice. A checklist of gender anomalies that have long been clamouring for the attention of lawmakers:
THE ANACHRONISTIC DEFINITION OF MARITAL RAPE
While the marriageable age for girls is 18, the age for consummation is 15. This anomaly is a tacit admission of the lax enforcement of the child marriage prohibition law. It also betrays an anachronistic definition of marital rape in the Indian Penal Code (IPC): the offence is committed only when the wife is underage. IPC provides for two levels of punishment depending on the age of the wife. The penalty is greater if the wife is below 12 and less if she is between 12 and 15. Thanks to this notion of hinging marital rape entirely on the age factor, India is lagging behind at least 100 countries which penalise non-consensual sex in which the perpetrator is the victim's spouse.
WHY CAN'T THE WIFE BE AGGRIEVED BY ADULTERY?
Betraying the Victorian prejudice of treating the wife as a chattel (movable property ), Section 497 of IPC defines adultery in such a manner that only the cuckolded husband can be aggrieved by it. The wife is disallowed from initiating criminal proceedings against the husband on the charge of adultery. Though several expert reports have denounced this blatantly discriminatory provision, Parliament has so far not touched it. Nor has it acted on the alternative of turning adultery purely into a civil offence.
WHY CAN'T THE MOTHER BE THE NATURAL GUARDIAN?
Under the Hindu law, the "natural guardian" of a boy or unmarried girl is "the father, and after him, the mother". This led to bizarre situations like the Reserve Bank of India not allowing author Githa Hariharan, as brought out by a 1999 Supreme Court verdict, to buy a bond in the name of her minor son without the signature of her husband. The statutory presumption that the father was a more natural guardian than the mother also has a bearing on custody battles. Wary as they are are of upsetting a deeply entrenched patriarchal order, successive governments have steered clear of redressing this gender inequity.
REFORMING THE DRACONIAN DOWRY HARASSMENT LAW
This is a classic example of "good intentions gone wrong". Responding to the growing incidence of dowry harassment, the government grafted Section 498A into the IPC in 1983. Its stringent provisions on bail opened up scope for reverse harassment: in a lot of cases, the husband and his family members were found to have been wrongly detained. Things came to such a pass that two years ago, the Supreme Court called upon the government to make "suitable changes" in this notoriously misused provision. At the government's instance, the Law Commission gave a report four months ago recommending that dowry harassment be made compoundable with the permission of the court. This means that, even after the initiation of criminal proceedings, the warring spouses be given the option of arriving at a compromise. Other expert bodies (the Justice Malimath Committee, for instance) suggested that the offence be also made bailable. The challenge before Parliament is to reduce the rigors of Section 498A without giving impunity to dowry harassment.
SHOULD KHAP PANCHAYATS BE ALLOWED TO ANNUL MARRIAGES?
Given the spate of "honour killings" triggered by khap panchayats, Parliament would do well to take on this traditionsanctified crime. It is just as well that the Law Commission set the ball rolling by releasing a consultation paper last year on reining in caste bodies that are interfering with the freedom of matrimonial alliances. It has even drafted a Bill prohibiting people from congregating to condemn a legal marriage allegedly for bringing dishonuor to the caste or community. One of the radical provisions of the draft Bill is the presumption of guilt against every person who participated in the unlawful assembly. Though the Law Commission is expected to give its report shortly, it is far from certain whether political parties, compromised as they are by caste considerations, will muster the will to criminalise khap panchayats. They find it expedient to criminalise teenage sex, pandering to the same lynch mob mentality of denying individual autonomy.
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