The law's blind spot | Guest column by Indira Jaising
From workplace harassment to marital rape, the gap between legal protections and women's lived realities remains stubbornly wide, exposing the need for education as much as enforcement
The Constitution and our criminal laws promise every person equality and dignity, both in interpersonal relationships and in dealings with the State. But laws are not self-acting. Merely having a law does not mean we internalise its promise in our day-to-day relationships. Each of us has the right to personal autonomy in decision-making and the right to privacy, however close the relationship. Yet, it does not follow that every woman understands that no sexual relationship can take place without her consent.
The findings of India Today Group’s consent survey indicate that women often succumb to sexual demands without really wanting sex. By far the most important reason is emotional blackmail by an intimate partner. The other is gaslighting, the internalised belief that a woman who refuses her partner will be seen as deviant and unladylike. Some findings indicate that women themselves do not necessarily believe they have the right to autonomy and privacy in an intimate relationship.
Here, I want to draw attention to the fact that the definition of rape has two distinct aspects: one is sex without her consent, the other is against her will. When a woman succumbs, sex is against her will, and is nevertheless rape. The survey indicates that this is often the case in intimate relationships.
This brings us to the issue of rape within marriage. It occurs because the true nature of marriage is not understood by the husband. Marriage is a bond of affection, caring and sharing, making sex an act of mutual satisfaction. When treated as a right available on demand against the will of the wife, it is rape, but the law does not criminalise it. This is the purest form of rape: both without her consent and against her will.
We will never have empirical data on the extent of marital rape in this country because no FIR is lodged for rape within marriage. There was a time when wives could still lodge a complaint under Section 377 of the Indian Penal Code (IPC), giving us some data on violent non-consensual sex in marriage. Although the Supreme Court decriminalised consensual anal sex in Navtej Singh Johar v. Union of India (2018), non-consensual anal and oral sex continued to be a crime. However, the Bharatiya Nyaya Sanhita (BNS), which replaced the IPC, has not retained Section 377. This has left women with no remedy against non-consensual sexual violence within marriage. A survey such as this is, therefore, our only source of information on unwanted sex in marriage.
A point often missed is that rape happens even between separated spouses. My experience as a lawyer tells me that a woman who exits a violent relationship is still sought out as personal property and raped. The violence does not end with physical separation. This is why Section 376B of the IPC and now Section 67 of the BNS recognise rape of separated wives as an offence, though with lesser punishment than the rape of a stranger.
Another finding concerns how women respond to sexual harassment: whether they deal with it, ignore it or make a legal complaint. Here too, women shy away from complaining for fear of being shamed or losing a job.
But by far the most important help is self-help: the right response is to stop a man in his tracks, confronting him in real time where possible. Very often, the abuser, not expecting such a response, is at a loss for words and can be stopped. As a victim of harassment in the busy corridors of the Supreme Court, I have had occasion to confront offending men and demand a public apology in broad daylight.
Where that is not possible, real-time documentation is necessary to prevent recurrence. This, too, does not seem to be happening, reflecting a lack of confidence in the law. Asked about staff sensitisation at the workplace, many women said it was a formality for legal compliance rather than a genuine effort to create an equal workspace. Employers must lead by example but, sadly, in most cases that I have handled, it is the boss or his favoured underlings who are the abusers, spreading a culture of impunity.
The good news is that there is now an army of trained, sensitive external committee members who, given the chance, can turn a workspace into a more equal one.
It is difficult, if not impossible, to obtain data of the kind these findings provide. The picture looks dismal on account of the internalisation of gender stereotyping and self-suppression. But the good news is the near-unanimous agreement that the only solution to preventing sexual abuse is sex education for children between 10 and 14. Given this unanimity, why is it not being done? Far from providing it, attempts were recently made to cover up the ‘dancing girl’ of Mohenjo-daro, now undone, thanks to public protest.
Free and frank discussion of sex, in schools and with parents, seems the only solution to a problem of national dimensions—women’s safety—and the only way to prevent child sexual abuse. No amount of deterrent punishment has made India safer for women and children. The solution must be found within the rule of law. It will not emerge from the barrel of a gun.
—The author is an eminent Supreme Court lawyer, author and Founder, Lawyers Collective
The Constitution and our criminal laws promise every person equality and dignity, both in interpersonal relationships and in dealings with the State. But laws are not self-acting. Merely having a law does not mean we internalise its promise in our day-to-day relationships. Each of us has the right to personal autonomy in decision-making and the right to privacy, however close the relationship. Yet, it does not follow that every woman understands that no sexual relationship can take place without her consent.
The findings of India Today Group’s consent survey indicate that women often succumb to sexual demands without really wanting sex. By far the most important reason is emotional blackmail by an intimate partner. The other is gaslighting, the internalised belief that a woman who refuses her partner will be seen as deviant and unladylike. Some findings indicate that women themselves do not necessarily believe they have the right to autonomy and privacy in an intimate relationship.
Here, I want to draw attention to the fact that the definition of rape has two distinct aspects: one is sex without her consent, the other is against her will. When a woman succumbs, sex is against her will, and is nevertheless rape. The survey indicates that this is often the case in intimate relationships.
This brings us to the issue of rape within marriage. It occurs because the true nature of marriage is not understood by the husband. Marriage is a bond of affection, caring and sharing, making sex an act of mutual satisfaction. When treated as a right available on demand against the will of the wife, it is rape, but the law does not criminalise it. This is the purest form of rape: both without her consent and against her will.
We will never have empirical data on the extent of marital rape in this country because no FIR is lodged for rape within marriage. There was a time when wives could still lodge a complaint under Section 377 of the Indian Penal Code (IPC), giving us some data on violent non-consensual sex in marriage. Although the Supreme Court decriminalised consensual anal sex in Navtej Singh Johar v. Union of India (2018), non-consensual anal and oral sex continued to be a crime. However, the Bharatiya Nyaya Sanhita (BNS), which replaced the IPC, has not retained Section 377. This has left women with no remedy against non-consensual sexual violence within marriage. A survey such as this is, therefore, our only source of information on unwanted sex in marriage.
A point often missed is that rape happens even between separated spouses. My experience as a lawyer tells me that a woman who exits a violent relationship is still sought out as personal property and raped. The violence does not end with physical separation. This is why Section 376B of the IPC and now Section 67 of the BNS recognise rape of separated wives as an offence, though with lesser punishment than the rape of a stranger.
Another finding concerns how women respond to sexual harassment: whether they deal with it, ignore it or make a legal complaint. Here too, women shy away from complaining for fear of being shamed or losing a job.
But by far the most important help is self-help: the right response is to stop a man in his tracks, confronting him in real time where possible. Very often, the abuser, not expecting such a response, is at a loss for words and can be stopped. As a victim of harassment in the busy corridors of the Supreme Court, I have had occasion to confront offending men and demand a public apology in broad daylight.
Where that is not possible, real-time documentation is necessary to prevent recurrence. This, too, does not seem to be happening, reflecting a lack of confidence in the law. Asked about staff sensitisation at the workplace, many women said it was a formality for legal compliance rather than a genuine effort to create an equal workspace. Employers must lead by example but, sadly, in most cases that I have handled, it is the boss or his favoured underlings who are the abusers, spreading a culture of impunity.
The good news is that there is now an army of trained, sensitive external committee members who, given the chance, can turn a workspace into a more equal one.
It is difficult, if not impossible, to obtain data of the kind these findings provide. The picture looks dismal on account of the internalisation of gender stereotyping and self-suppression. But the good news is the near-unanimous agreement that the only solution to preventing sexual abuse is sex education for children between 10 and 14. Given this unanimity, why is it not being done? Far from providing it, attempts were recently made to cover up the ‘dancing girl’ of Mohenjo-daro, now undone, thanks to public protest.
Free and frank discussion of sex, in schools and with parents, seems the only solution to a problem of national dimensions—women’s safety—and the only way to prevent child sexual abuse. No amount of deterrent punishment has made India safer for women and children. The solution must be found within the rule of law. It will not emerge from the barrel of a gun.
—The author is an eminent Supreme Court lawyer, author and Founder, Lawyers Collective
