Defining sexual assault

The Other Half

Defining sexual assault

KALPANA SHARMA

The sentence in the Ruchira Talwar case is a small step in rectifying an anomaly in the law. The draft Criminal Law (Amendment) Bill 2010 now seeks to tighten laws dealing with sexual assault…

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What is important is that women are made aware of what their rights would be if the law is passed.

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The enhancement of the sentence of former Haryana DGP S.P.S. Rathore, charged with molesting 14-year-old Ruchika Talwar, from just six months to one and a half years, is a very small step in rectifying the glaring anomaly in the law that allowed him to almost get away with a serious crime. In the absence of the popular furore over what happened, and the determined efforts of the young woman's friends and family, it is possible that Rathore would have continued to hold office and escape the jail sentence awarded to him. But even as many will believe that 18 months is hardly adequate punishment for a crime that led to a young woman taking her own life, the sentencing is the beginning of an important process of change in our antiquated laws dealing with sexual assaults of all kinds.

Ruchika's is only one case. There are hundreds of such cases in India that never reach the point of conviction. And many more incidents that are never even reported. But because more such cases are coming out in the open, the demand for a change in the law has built up to the point that the government has finally taken note.

Change, finally

The draft Criminal Law (Amendment) Bill 2010 aims to tighten current laws dealing with rape and sexual assault. This has happened not because of a sudden flash of enlightenment by those who make laws but because of the sustained campaign by women's groups for well over three decades. The fact that such a law is finally on the anvil illustrates yet again how important it is that civil society groups exert pressure and provide detailed alternatives when opposing existing laws.

For, in this case, what women's groups have done is not just to point out the obvious, that the existing provisions in the Indian Penal Code (IPC) dealing with rape are antiquated (based on a 19 {+t} {+h} century law) and ineffective but have also submitted to the government detailed suggestions on how these provisions can be changed. The National Commission on Women has also provided the government with a draft law. Such interventions ensure that the discussion does not remain in the area of generalities but actually deals with the specifics.

But here is where the problems often begin. While civil society groups work on changes based on their actual experiences of dealing with cases — such as those of rape, sexual assault, child abuse etc — the bureaucrats who draft laws appear to have a different set of concerns. So some of the suggestions are incorporated but loopholes are allowed to remain that will permit offenders to slip through.

Yet, despite its apparent weaknesses, the Criminal Law (Amendment) Bill 2010, also popularly referred to as Sexual Assault Bill, will herald important changes in the sections of the IPC dealing with rape. It has enlarged the definition of rape to sexual assault, thereby bringing under the aegis of the law many other forms of assault on women that so far have not been considered rape and that have allowed offenders to get away with the minimum punishment of just two years. This is a welcome change. (The entire draft is available on the Union Home Ministry's website:http://mha.nic.in/writereaddata/12700472381_CriminalLaw(Amendment)Bill2010.pdf)

It has also specified that such a crime would be treated more seriously when the offender is a police officer, a public servant who has taken advantage of his official position, a person on the management or staff of a jail or remand home, a person on the management or staff of a hospital, the relative or a person in a position of trust or authority etc. The punishment would be a minimum of 10 years extending to life. Clearly, if such a provision had been in place earlier, Rathore would never have escaped with such a light sentence.

The draft law has also included specific provisions on child abuse that should be welcome. Groups working on children's rights have been demanding a separate law dealing with this but lawyers point out that having specific provisions within the IPC helps as the police usually act on the basis of these provisions. Thus the punishment for sexual abuse of a minor (defined as under the age of 18) will now be a minimum of seven years extending to life.

Women's groups are not entirely happy with the version of the law presented by the government because they hold that it is poorly drafted, is vague in some parts and could provide offenders a window through which they could escape. Their detailed responses have been sent to the Home Ministry and one hopes that they will be taken on board seriously.

What is important at this stage is that these provisions in the law are debated and that people, and particularly women, are made aware of what their rights would be if the law is passed. In India, a major problem is the absence of accurate information on important laws. And the media does not always help as the manner in which these issues are reported leads to a misunderstanding of the law.

Skewed balance

For example, instead of looking more closely at provisions in the draft law, some newspapers have been emphasising the opinions of little known groups that insist that the law will victimise men. This is an amazing form of “balanced” reporting where you place on an equal footing the very real problem facing millions of women who have been sexually assaulted, and their rights, with small, fringe “men's rights” groups who are given equal or sometimes even more media space.

Instead, what we need to consider is why the graph of assaults against women has been steadily climbing in this country, and why the rate of conviction remains pitifully low. According to the latest figures for 2008 assembled by the National Crimes Records Bureau, there has been a five per cent increase in crimes against women — from 1,85,312 in 2007 to 1,95, 856 in 2008. These crimes include rape, molestation, kidnapping and abduction of girls, sexual harassment, trafficking (defined as “importation of girls”) and cruelty by husband and relatives. The last has the largest number of recorded cases — 81,344, followed by 40,413 of molestation, 22,939 of abduction of girls, 21,467 of rape and 12,214 of sexual harassment.

It goes without saying that a change in the law by itself will not reduce crimes. But in this instance, the important expansion of the term “rape” into the much more specific term of “sexual assault” is long overdue. The real challenge, if and when the law is tabled in Parliament, and hopefully passed, will be how well it is implemented.

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Motherhood at peril

Motherhood at peril

ANANTHAPRIYA SUBRAMANIAN

Are the mothers of India safe? A vast majority of them do not have access to basic health care...

Every year, 50 million women in the developing world give birth at home with no professional help whatsoever.

Are the mothers of India safe? A vast majority of them do not have access to basic health care...

Every year, 50 million women in the developing world give birth at home with no professional help whatsoever.

PHOTO: RAGHU RAI FOR MAGNUM/SAVE THE CHILDREN

PROFESSIONAL CARE : Crucial for safety.

Thirty-year-old Naseem Bano is a mother of five who makes a living rolling beedis at home in Tonk district of Rajasthan. Naseem's last child was born in a hospital. Her first four children were delivered at home. She had one miscarriage before her last son was born. According to Naseem, “she was too scared to go to a hospital for delivering her first four children.” Crucially, her husband would not allow her to go to a hospital with a male gynaecologist.

Naseem's story is shared by millions of women in India and across the developing world. Today, the world over, a day has been dedicated to celebrate the mother. Underlying the warm eulogies of the woman donning different roles as mother, sister, wife, etc, there is another subaltern narrative of the woman who has never been to school, who has no control over resources in her own home, and who will be dictated to by her husband and the elders in the family on whether she can go to hospital to deliver her child.

No infrastructure

Every year, 50 million women in the developing world give birth at home with no professional help whatsoever. And every year, nearly 350,000 women die during pregnancy or childbirth. Almost all these deaths happen not because of untreatable complications but because these mothers do not have access to basic health care services or if these are available, they are of very poor quality.

Most of these deaths could be prevented if skilled and well-equipped health care workers were available to serve the poorest, hardest to reach mothers. However, there is a very strong link between whether a woman can access skilled health care and her level of education. Poorer and less educated women, and especially those living in rural areas, are far less likely to give birth in the presence of a skilled health worker than better educated women who live in wealthier households.

A UNESCO report says worldwide, 39 million girls are not attending school and millions more complete only a year or two of schooling. In India, female literacy stands at a disappointing 53.67 per cent. Women like Naseem with little or no schooling lack the confidence and authority to make decisions for their own health and the health of their children.

Moreover, social and cultural barriers often prevent women like Naseem from visiting health providers. Typically, in rural areas, husbands and elder family members often decide whether a woman may go for health care outside the home and women themselves often choose to forego health care if the provider is male due to social stigma. In such circumstance, the presence of a skilled female health care provider could mean the difference between life and death for the mother and her newborn child.

Experience in many countries has shown that modest investments in female community health workers can have a strong impact on mothers surviving in rural communities. Between 1990 and 2008, Bangladesh has cut its maternal mortality rate dramatically by 53 per cent. In 1997, the government launched a safe motherhood initiative aimed at improving emergency obstetric care and training 17,000 skilled birth attendants to work at the community level. Though still more than 116,000 mothers die each year in Bangladesh mainly because of inadequate care during childbirth, a vibrant home-grown NGO sector has shown that health workers with limited education and training can have a significant impact on the survival of mothers.

Recent findings presented in The Lancet indicating a 1.5 per cent yearly rate of decline in maternal mortality since 2005 is good news. In India, the National Rural Health Mission has completed five years this year. Despite good schemes, their implementation leaves a lot to be desired. A recent Comptroller and Auditor General report found that institutional deliveries have not really taken off due to several irregularities in the States where maternal mortality and infant mortality rates are high. Only 47 per cent of women give birth attended by skilled health attendants.

Poor health care

In 2000, India, along with 189 Heads of State and government committed to reducing the numbers of mothers dying by 2015 in their Millennium Declaration. Despite a decline in maternal mortality rate, the question arises if we are doing enough to save the lives of thousands of mothers who are still dying because there is no health care provider nearby to spot complications early on and intercede on behalf of these mothers before it is too late.

A worldwide survey done recently by Save the Children finds India at 73 out of 77 middle-income countries in terms of the best country to be a mother. To paraphrase Nehru, you can tell the condition of a nation by looking at the status of its women. In a country that has glorified women in mythology and fiction, it is incongruous to have a reality where women have no control over their destiny and indeed their lives and, are dying because they cannot access basic health care.

Ananthapriya Subramanian is Media and Communications Manager with Save the Children

Educating India

Educating India

KALPANA SHARMA

The Annual Status of Education Report, 2009, is out… pointing out yet again that what stands between rural girls and a good education is often basic facilities like transport and proper toilets…

Photo: A. Muralitharan

Soldiering on: How long before they are forced to drop out?

Swati and Anita are two young women from rural Maharashtra. They have one thing in common. Both dropped out of school once they completed Standard VIII. They wanted to complete their schooling. Both spoke passionately to me when I met them about their desire to study. Even their parents wanted them to study further. But circumstances would not permit this.

Both girls faced an identical dilemma. While the school up to Standard VIII was in their village or close by, the high school was some distance away. The only way to go there was by the local State Transport bus. While going to school was not such a problem as it was during the day, at the end of the school day, they had to wait several hours before they could catch the bus back. If for some reason the bus was cancelled, and this would happen with alarming frequency, they would have had to walk back to the village in the dark, something their parents would not contemplate. Hence, the only option was to drop out of school. In contrast, the brother of one of the girls faced no such problem. As soon as he was through with his classes, he would hitch a ride on a passing truck and make his way back. This was not an option open to the girls.

Tragic situation

What is tragic is that both these girls are as bright as any you would meet in a city like Mumbai. The only reason they will not become the engineers and doctors of the future is because there is no reliable transport linking their village to the nearest school. And theirs are not remote villages in the interior of Maharashtra. Swati lives a mere hour away from Pune. If this is the story of Swati and Anita, think how many millions more like them must be chafing at being deprived for no other reason than a safe mode of transport.

We also know that many more girls drop out even before Standard VIII for another reason: the lack of toilets in schools. The latest ASER (Annual Status of Education Report) 2009, a comprehensive survey of government and private schools in 575 out of 583 districts in India, revealed that only 50 per cent of government schools have toilets and that four out of 10 government schools did not have separate toilets for girls. Even where there were separate toilets for girls, as many as 12-15 per cent were locked and only 30-40 per cent were “usable”. I visited a school in Bihar where toilets had been constructed but within days their doors had been stolen and the toilet pans smashed making them unusable. If girls dropout when they reach adolescence, it is often for no other reason than the lack of toilet facilities. Even in a city like Mumbai, the dropout rate amongst girls attending municipal schools is markedly higher than that of boys because of the absence of toilets for them.

The annual ASER study, facilitated by the NGO Pratham, is a constant and important reminder of the state of education in this country. In 2009, ASER surveyed 16,000 villages, 300,000 households and 700,000 children. There is nothing on this scale done by an agency outside government, hence its importance. But each year, when ASER results are made public, we are reminded that education is not just about quantity, or the number of children who enrol in school — a number that is increasing — but the quality of the education these children get. And that, although it is getting better in some states, is still shockingly poor.

Conducting simple reading and mathematics tests in schools, the survey reveals that a little over half of all children in Standard V in government schools cannot read a Standard II text book. This means a 10-year-old cannot read what a seven-year-old is supposed to be able to read. What then are these children learning even if they become a statistic showing increased enrolment and attendance in schools?

Disturbing trend

Precious little, it would seem. What they cannot learn in school, they do so by paying for private tuitions. One of the more disturbing statistics in the survey reveals that one in four children in Standard I in private schools is sent for private tuitions as are 17 per cent of Standard I students in government schools. Can you imagine that? Little six-year-olds being sent for private tuition. By the time they reach Standard VIII, over one third try and learn what they are clearly not taught in school through private tutoring. An analysis of the budget of poor people would reveal what a chunk of their earnings goes into such tuitions because they hold on to the belief that education will pull them out of poverty. But given the poor quality of education in these schools, their children will never be able to compete with those with ability to pay for better quality schooling.

Fortunately, not the entire ASER report is gloom and doom. One of the brighter moments in it is the fact that in Bihar, the state considered a basket case on most counts, the dropout rate for girls in the 11-14 age group has reduced from 17.6 per cent in 2006 to 6 per cent in 2009. So Bihar must be doing something right. In fact, one of the striking sights in Bihar today is of girls on bicycles, given by the government if they clear Standard VIII, going to the nearest high school.

The desire to ensure that children get a good education runs deep in most Indian families. Parents will sacrifice and save to invest in their children's future. Even poor families, including the homeless with no secure shelter, find a way of sending their children to school. The increase in the enrolment rate in India — 96 per cent of children between the ages of 6-14 are enrolled in school, government and private — is proof of that.

What urgently needs to be tackled is the quality of education, basic facilities like toilets and running water, and transport, particularly for girls. Even this will not suffice unless there is a notable change in the status accorded teachers who ultimately decide whether and what children learn. Instead of the inordinate amount of attention that continues to be paid to institutes of higher learning, or private institutions that promise to prepare rich children for studies abroad, something much more simple and basic can and needs to be done to educate India and Indians.

Sentenced to death

Sentenced to death

Kalpana Sharma

Asserting one's independence in something as vital as marriage in many parts of India can end in death. That's the price of modernity. How can we still call ourselves a civilised society?

What a week we have had — full of symbols of nooses and death. On the one hand, there was the pronouncement of the death sentence on Mohammed Ajmal Amir Kasab, convicted for the terror attack on Mumbai on November 26, 2008 by a special court in Mumbai. On the other, the death of a young woman, 22-year-old Nirupama Pathak, found hanging from a fan in her parents' home in Koderma, Jharkhand. Suicide, said the parents. “Honour killing”, said her boyfriend. The parents had opposed Nirupama's desire to get married to Priyabhanshu Ranjan as she was from a higher caste. The case is unresolved and getting murkier by the day. But the symbol of death in both cases was the noose.

The demands for Kasab's hanging, with people enacting mock hangings in front of television cameras and even the public prosecutor who conducted the case holding up graphics of the noose to illustrate his demand for the death sentence, raises disturbing questions about the role of the media in encouraging irrational emotions. More than one television channel aired the views of people who demanded that Kasab be handed over to “the people”, or hung from the nearest lamppost. Only then would they be satisfied. But mob justice is no justice, even when the person concerned is a “terrorist”. Should the media be inflaming these passions or is its role to bring about some balance and perspective?

More disturbing

But Kasab apart, the far more disturbing issue is that of the alleged suicide of Nirupama Pathak and what that represents in terms of the growing incidence of honour killings. Until recently, most such instances came from rural or semi-urban areas. Many of them were located specifically in Haryana where the system of khap panchayats rules on questions of marriage and opposes the marriage of two people from the same gotra. If young people defy this tradition, they either have to run away and hide or face death. There does not seem to be any other civilised alternative.

With Nirupama's death, the issue of honour killings has come closer to home for the middle class. Here was an educated girl, a journalist, from a middle class family who agreed to her studying and working away from home. Yet, what they did not grant her was the right to choose who she could marry. Even if murder is not proved in her case, it is clear that she was under immense pressure to break her relationship with Ranjan for no other reason than that he was from a lower caste.

Dubious claim

The horrifying nature of some of the honour killings that have been recorded — and there are probably many more that go unreported — make one wonder how we can claim to be a civilised society. Statistics are difficult to collate, as deaths due to honour killings are not listed as such in the National Crime Records Bureau data. But we cannot deny that their numbers are growing. According to one survey, there are at least 100 honour killings each year in just Delhi, Haryana and UP.

How do you define honour crimes? Human Rights Watch gives the following definition: “Honour crimes are acts of violence, usually murder, committed by male family members against female family members, who are held to have brought dishonour upon the family.”

And how do you bring this “dishonour” on your family? In India, this translates into marrying into another caste, another religion or even another class. On October 26, 2009, the reported murder of the daughter of an Assistant Commissioner of Customs in Patna, who eloped with the son of a Class IV employee, was one such instance where class was an issue.

Only in one honour killing case so far, has the court come down hard on those involved. In what will be seen as a historic judgment, a Sessions Court in Karnal, Haryana, sentenced to death five people and gave life imprisonment to one for the murder of Manoj (23) and Babli (19) of Karora Village in Kaithal district. Their crime? The khap panchayatruled that as they belonged to the same gotrathey could not marry.

The common thread that runs through all these incidents is the decision of the boy and girl to choose their own partners rather than letting families decide. And that is at the root of the societal problem we face, irrespective of caste or creed or region. For, modernity is ensuring that girls and boys are getting educated, moving away from their homes, finding jobs, watching images of people of their generation making free choices. Yet, the deadly reality of their lives is that on this one issue of marriage they really have no choice. And if they defy entrenched traditions and attitudes, they are sentenced to death, no less.

Can anything be done? Even if the deeper issue of societal change cannot occur overnight, are there steps that can be taken to curb such regressive influences?

Unfortunately, instead of being discouraged, such elements are being directly and indirectly supported. For instance, Haryana's khap panchayats are now demanding an amendment in the Hindu Marriage Act 1954 so that it prohibits marriages within the same gotra. The government's response, and for that matter of most political parties, is to throw up their hands and say that in matters of caste or religion, they can do nothing. Even younger politicians, such as the Congress MP from Kurukshetra, Navin Jindal, have not taken a stand. Jindal has praised the khap panchayats and stated, “I and my family have always respected society's traditions, customs, beliefs and culture.”

In response to demands for a special law, Union Home Minister P. Chidambaram has ruled out enacting a new law to deal with honour killings, although he is open to defining the crime specifically and has come out strongly against the caste panchayats, saying they should be treated as murder accomplices. He argues that the reason “sati” invited a specific law was because it was disguised as suicide. But then so too were dowry deaths in the initial years. And can we be sure that honour killings too are not disguised as suicides? Apart from the Nirupama Pathak case, another instance reported this month was that of 22-year-old Arvind and 19-year-old Dewanti in Kushinagar, UP. The couple committed suicide by consuming poison because their families had arranged for them to marry other people. Would these young people have taken such a step if they were sure that they could make an independent choice? Did the families not abet their suicides?

The law in any case can do only so much. What has to change are attitudes and traditions. How can we talk of independence, or empowerment, if on an issue as basic as marriage, women and men are told they have no choice? And worse, that defying tradition means inviting the death penalty. How can such a situation be accepted by a civilised society? How many more young women, and men, must die before some sense prevails?