Flavia Agnes, Reviewing A Decade of Failed Legislation

Fvolecling Wonen againsl VioIence?
Beviev oJ a Becade oJ LegisIalion, 1980-89

AulIov|s) FIavia Agnes
Bevieved vovI|s)
Souvce Econonic and FoIilicaI WeeII, VoI. 27, No. 17 |Apv. 25, 1992), pp. WS19-WS21WS24-
WS33
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Protecting Women against Violence?
Review of a Decade of Legislation, 1980-89
Flavia Agnes
Almost every single campaign against violence on women in the 1980s resulted in new legislations aimed at
protecting women. However, these have had littie impact. Why have these new enactments been ineffective in
tackling the problem of violence on women? So long as the attitudes of the establishment remain anti-poor, anti-
minority and anti-women, to what extent can laws bring social justice?
This article reviews laws enacted during the 1980s and their impact on women against the backdrop of
changing
perspectives within the women's movement.
IF oppression
could
be tackled by passing
laws, then this decade would be adjudged
a golden period for Indian women, when
protective laws were offered on a platter.
Almost every single campaign against
violence on women resulted in new legisla-
tion. The successive enactments would seem
to provide a positive picture of achievement.
The crime statistics reveal a different story
(Table 1). Each year the number of reported
cases of women killed or raped increased.
The rate of convictions under these lofty and
laudable laws was dismal (Tables 2 and 3).
The deterrent value of the enactments was
apparently nil. Some of the enactments in
effect remained only on paper. Why were the
laws ineffective in tackling the problem? To
answer this question requires a complex
analysis of the processes involved.
Firstly, the laws, callously framed, more
as a token gesture than from any genuine
concern to changing the status quo of
women, were full of loopholes. Also, in most
cases there was a wide disparity between the
initial demands raised by the women's cam-
paigns as well as the recommendations by
Law Commissions and the final enactment.
Many positive recommendations of the ex-
pert committees did not find a place in the
bills presented to the parliament. The acti-
vists and experts who had initiated the cam-
paigns could not participate in the process
of drafting the bills.
The defective laws were welcomed by the
movement as a first stepping stone towards
women's enmpowerment.
The questions, who
was passing these laws and for whose bene-
fit, were seldom asked. The campaigns with
their main thrust toward legislative changes
could not keep up the pressure once a law
was enacted. There was a lull and a false
sense of achievement resulting in complacen-
cy which took the pressure off the state
machinery. Hence the implementation of
these laws could be seldom monitored with
the same zeal. While one organ of the
state-the legislature, was over-eager lo por-
tray a progressive pro-women front by pass-
ing laws for the asking, the other organs, the
executive and the judiciary did not reflect
even this token concern at the level of inter-
pretation and implementation. On the whole
their functioning was totally contradictory
to the spirit of the enactments.
The campaigns themselves were limited in
scope. At times, the issues raised addressed
only superficial symptoms and not the basic
questions of power balance between men
and women, the women's economic rights
within the family and their status quo within
the society. The solutions were sought within
the existing patriarchal framework and did
not arise from a new feminist analysis
leading to empowerment of women. They
seldom questioned the conservative notions
of women's chastity, virginity, servility and
the concept of the 'good' and the 'bad'
woman in society. For instance, the rape
campaign subscribed to the traditional no-
tion of rape being the 'ultimate violation'
of a woman, reducing her to a state 'worse
than death'. It did not transcend the conser-
vative definition of "forcible penis penetra-
tion of the vagina by a man who is not her
husband".
The campaign against dowry tried to ar-
tificially link 'dowry' which is property
related, and 'death', which is an act of
violence. If the campaign had succeeded, it
could have benefited the woman's brother
and father. It would have failed to elevate
the woman's status in her matrimonial
home, nor could it have ended domestic
violence. So, any remedy, no matter how ef-
fective and foolproof, to check the super-
ficial malady, could not effectively arrest the
basic trend of violence against women which
results from women's powerlessness in a
male dominated society.
The campaigns and the ensuing legal
reforms have certain commonalities. The
campaigns were highly visible and received
wide media publicity. In each case the
government response was prompt. In most
cases Law Commissions or expert commit-
tees were set up to solicit public opinion. But
most of the recommendations which would
have had far-reaching impact did not find
a place in the final enactment. Each enact-
ment resulted in more stringent punishment
rather than plugging procedural loopholes,
providing guidelines for strict implementa-
tion, setting time limit for deciding the case
and extending compensation to the victim.
The apprehension of legal experts both
within and outside the women's movement
that stricter punishment would lead to fewer
convictions proved correct.
The question confronting us today is
whether social change and gender justice can
be brought about merely by passing stricter
laws? Each law vests more power with the
state enforcement machinery. Each enact-
ment ,stipulates more stringen t punishmcnt,
which is contrary to progressive legal reform
theory of leniency to the accused. Can pro-
gressive legal changes for women's rights
exist in a vacuum in direct contrast to other
progressive legal theories of civil rights? So
long as basic attitudes of the powers-that-be
remain anti-poor, anti-minority and anti-
women, to what extent can these laws bring
about social justice? At best they can be an
eye-wash and a way of evading more basic
issues of economic rights and at worse a
weapon of state co-option and manipulation.
The rape campaign is a classic example of
the impact of public pressure on the judi-
ciary. More favourable judgments were deli-
vered before the amendment-during the
peak period of the campaign than during the
post-amendment period, when they have
been consistently regressive. Perhaps public
pressure is a better safeguard to ensure
justice than ineffective enactments.
In the case of the Maharashtra Regula-
tion of Prenatal Diagnostic Techniques Act,
1988 the substantial participation of activists
at the initial stage of formulation of the bill
was not followed by their involvement at the
implementation level. So the law exists only
on paper. The Sati Prevention Bill can be
described as a decorative piece of legislation,
a cover-up for the state inaction at the crucial
stage of preventing the public murder of a
teenaged widow.
The worst among these is the Immoral
Traffic (Prevention) Act, 1956 which was
amended in 1986. This amendment did not
even come in response to any demand for
change. The act harms rather than helping
women as it penalises prostitutes. Under this
act, any woman who is out at night can be
picked up by the police. The only aim of the
amendment seems to be to make more
stringent the punishment. Ironically three of
the laws discussed here which purport to
protect women from violence actually pena-
lise the woman. Instead of empowering
women, the laws serve to strengthen the
state. And a powerful state conversely means
weaker citizens, which includes women.
Weaker the women, more vulnerable will
they be to male violence.
This article proposes to review the laws
enacted during the 1980s and their impact
on women against the backdrop of changing
perspectives within the women's movement.
Economic and Political Weekly April 25, 1992 WS-19
I
Campaign for Reforms in
Rape IaWs (1983k
The amendment to rape laws enacted in
1983 was the predecessor of all the later
amendments which followed during this
decade. Sections 375 and 376 of the Indian
Penal Code which deal with the issue of rape
had remained unchanged in the statute
books since 1860. The amendment was the
result of a sustained campaign against these
antiquated laws following the infamous
Supreme Court judgment in the Mathura
case.
Mathura, a 16-year old tribal girl, was
raped by two policemen within a police com-
pound. The sessions court acquitted the
policemen on the ground that since Mathura
had eloped with her boyfriend she was
'habituated to sexual intercourse' and hence
she could not be raped. Further the court
held that there is a world of difference bet-
ween sexual intercourse and rape. The high
court convicted the policemen and held that
mere passive or helpless surrender induced
by threats or fear cannot be equated with
desire or will. The Supreme Court set aside
the high court judgment and acquitted the
policemen and held that since Mathura had
not raised any alarm, her allegations of rape
were untrue. Her 'consent' was not a con-
sent which could be brushed aside as 'passive
submission'. ' The judgment triggered off a
campaign for changes in rape laws which
included public protests and wide media
publicity. The principal gain of the cam-
paign was that rape which was hitherto a
taboo subject came to be discussed openly.
Redefining 'consent' in a rape trial was
one of the major thrusts of the campaign. -
The M4athura judgment had highlighted the
fact that in a rape.trial it is extremely dif-
ficult for a woman to prove that she did not
consent 'beyond all reasonable doubt' as
was required under the criminal law. The
Supreme Court judgment had interpreted
that absence of injuries and passive submis-
sion implied consent. The major demand
was that the onus of proving consent should
shift from the prosecution to the accused.
This meant that once sexual intercourse was
proved, if the woman states that it was
without her consent, then the court should
presume that she did not consent. The
burden of proving that she had consented
should be on the accused.2 The second ma-
jor demand was that in a rape trial a
woman's past sexual history and general
character should not be used as evidence.
The response of the government to the
campaign was prompt. A Law Commission
was set up to study the demands. The Law
Commission's recommendations included
both the demands raised by the anti-rape
campaign, i e, regarding onus of proof and
the woman's past sexual history. The com-
mission also recommended certain pre-trial
procedures-women should not be arrested
at night, a policeman should not touch a
woman when he is arresting her and state-
ments of women should be recorded in the
presence of a relative, friend or a represen-
tative of women's organisations. It also
recommended that a police officer's refusal
to register a complaint of rape should be
treated as an offence.
Wowever, the bill which was presented to
the parliament in August 1980 did not in-
clhide any of these positive recommendations
regulating the police power. The demand
that a woman's past sexual history and
general gond;j-t -!Yold not be used as
evidence in a rape triai was excluded from
the bill. The demand that onus of proof
regarding consent should be shifted to the
accused was accepted partially, oply
in case
of custodial rape, i e, rape by policemen,
public servants, managers of public hospitals
and remand homes and wardens of jails.
The bill had certain regressive elements
which were not recommended by the Law
Commission. It sought to make publishing
anything relating to a rape triil a non-
bailable offence. This meant a virtual cen-
sorship of press reports of rape trials. This
was ironical because the public pressure
during the campaign was built up mainly
through media publicity and public protests.
This provision met with a lot of criticism,
hence it was referred to a joint committee
of the parliament for further debate. After
soliciting public opinion from a wide section,
the committee submitted its report in
November 1982. The regressive provisions
were not scrapped but were made slightly
milder. For instance publication of rape
trials was made into a bailable offence.-
The important provisions of the-amend-
ment were: (1) A new section was added
which made sexual intercourse by persons
in a custodial situation (police'rnen, public
servants, managers ot public hospitals and
remand homes and wardens of jails) an of-
fence even if it was with the consent of the
woman. (2) For the first time a minimum
punishment for rape was laid, down-10
years in cases of custodial rape, gang rapes,
rape of pregnant women and girls under 12
years of age and 7 years in all other cases.
Even though this was not the major demand,
it turned out to be the most important in-
gredient of the amendment.
The delaying tactics of setting up commit-
tees by the state had succeeded in robbing
the campaign of its initial fervour. By the
time the amendment was passed, the cam-
paign had virtually died down. The enact-
ment was an indication of some measure of
success to the campaign. So although it was
inadequate, it was welcomed as a progressive
step-a beginning. One assumed that the
courts would follow the spirit of the amend-
ment and give women a better deal in rape
trials.
After the amendment, the campaign lost
its alertness. There were hardly any efforts
to systematically monitor the impact of the
new law in rape trials. So the recent judg-
ment in the Suman Rani case came as a
jo)lt.' The Supreme Court had reduced the
sentence from the minimum of 10 years to
5 years in case of police rape. The review
petition filed by womenWs oups against the
reduction of sentence was also rejected.5
This brought into focus the need to review
judicial trends in rape trials since passage
of the amendment. A close scrutiny of
judgments of the decade revealed that the
Suman Rani judgment was not an exception.
It was merely adhering to the norm of
routinely less than the minimum sentence in
rape trials during the post-amendment
period. Here is a glimpse of some impor-
tant judgments during the decade-
JUDGMENTS
It would come as a surprise to many that
the settled legal position regarding 'consent'
before the Mat hura trial was not so adverse
as one would assume. In fact, the Mathura
judgment had expressed views which were
contradictory to the settled legal position in
the Rao Harnarain Singh case of 1958. And
what is worse, in spite of the amendment,
there is every possibility of some other judg-
ment being as anti-women and negative as
the Mathura judgment even today.
In Rao Harnarain Singh vs State of Pun-
jab, the courts had held in 1958: "A mere
act of helpless resignation in the face of
inevitable compulsion, quiescence and non-
resistance when volitional faculty is either
crowded by fear or vitiated by duress cannot
be deemed to be 'consent'. Consent on the
part of the woman as a defence to an allega-
tion of rape, requires voluntary participa-
tion, after having fully exercised the choice
between resistance and assent. Submission
of her body under the influence of terror is
not consent. There is a difference between
consent and submission. Every consent in-
volved submission but the converse does not
always follow'6 This was the settled legal
position and was relied upon by many later
judgments during the pre-amendment
period. Here are some positive interpreta-
tions of consent during the anti-rape cam-
paign, i e,- 1980-83.
In 1980, the Supreme Court held: "The
Court must bear in mind human psychology
and behavioural probability when assessing
the credibility of the victim's version." The
judgiitent also cautioned against stricter
laws: "Reflecting on this case, we feel con-
vinced that a socially sensitised judge is a
better statutory armour against gender
outrage than long clauses or a complex sec-
tion with all the protections writ into it' The
judgments of the post-amendment period
have proved this statement right.7 In the
same year, in another judgment the Supreme
Court made a positive comment about the
campaign: "When rapists are revelling in
their promiscuous pursuits and half of
-humankind-womankind-is protesting
against its hopeless lot, when no woman of
honour will accuse another of rape, the
Court cannot s~tick to its fossil formula and
insist on corroborative evidence."8
In another case of 1981, in which a 16 year
WS-20 Economic and Political Weekly April 25, 1992
old girl was raped the Court held: "The fact
that there is no injury and the girl is used
to sexual intercourse is immaterial in a rape
trial.'9 In 1982, in a case of gang rape, rely-
ing upon the Rao Harnarain Singh judg-
ment, tl.e Orissa High Court held that the
consent must be voluntary. A mere inevitable
compulsion, quiescence, non-resistance or
passive giving in when volitional faculty is
either crowded by fear or vitiated by duress
cannot be deemed to be 'consent.10
In a landmark judgment* of 1983 the
Supreme Court held that corroboration
(supportive evidence) of a victim's evidence
is not necessary., The court held: "In the
Indian setting, refusal to act on the testi-
mony of the victim of sexual assault in the
absence of corroboration is adding insult to
injury. Why should the evidence of the girl
or a woman who complains of rape or sexual
molestation be viewed with the aid of spec-
tacles tinged with doubt or disbelief? To do
so is to justify the charge of male chauvinism
in a male dominated society"' The words
used in this judgment indicate that the anti-
rape campaign had an impact on it.
These judgments, pronounced before the
amendment seem to be more progressive
than the ones in the later years. What is most
relevant is the fact that even before the
amendment the law could have been inter-
preted progressively if the judiciary so wish-
ed. There was no uniformity and the pen-
dulum could swing from one extreme to the
other as in the case of Mathura. This is
precisely what the amendments were suppos-
ed to oltviate by providing certain guidelines.
To the contrary, the judgments in the post-
amendment period convey a dismal picture.
The first year after the amendment, 1984,
started off with an extremely negative view
of women's sexuality. A school teacher had
seduced a young girl, but when she conceiv-
ed he refused to marry her. The girl filed a
complaint that the consent was given under
a false promise of marriage and hence it was
not a valid consent and the act amounted
to rape. The Calcutta High Court held:
"Failure to keep the promise at a future
uncertain date does not amount to mis-
conception of fact. If a fully grown girl con-
sents to sexual intercourse on the promise
of marriage and continues to indulge in such
activity until she becomes pregnant, it is an
act of promiscuitye' This judgment was relied
upon in several later cases where girls were
duped into sex under a false promise of mar-
riage in order to acquit the accused.
12
In a case, reported in 1989, a minor girl
of 7-10 years, was raped by a 21-year old
youth in a pit near the bus stop. There were
two eyewitnesses. The girl had bite marks
and her hymen was ruptured. The sessions
court convicted the accused to life imprison-
. ment and a fine of Rs 500. The Delhi High
Court set aside the conviction on the ground
that there was injury to the accused only on
the body and not on the pe,is and that in
rape of a minor by a fully developed male,
injury to the penis is essential. While earlier
the girl had to put up sufficient resistance
to suffer injuries on her own body, the situa-
tion seems to have become worse. Now she
is expected to put up even more resistance,
so that the accused also sustains injuries-
not just on his body but precisely on his
penis! It needs to be emphasised that the girl
in question was only a child, while the rapist
was a robust man of 21 years.'3
In another disturbing judgment reported
in 1989, the Bombay High Court set aside
a conviction by the sessions court in Kolha-
pur. The girl who was in love had voluntarily
accompanied the accused to his friend's
house. During the night they slept in a small
room along with the hosts. The accused sug-
gested intercourse but the girl was unwill-
ing. The accused overcame her resistance
and raped her twice during the night. The
girl was found in the company of tie accus-
ed by the police on a complaint filed by her
father. The medical examination revealed
that the girl's hymen was torrn. There was
blood on her underwear. But no blood or
semen on any other garment. The sessions
court held that the girl was a consenting par-
ty, but was less than 16 years of age and
hence her consent was not a defence for the
accused. So the judge 'reluctantly' impos-
ed one month's simple imprisonment and a
fine of Rs 1,000.
In appeal, the high court doubted the age
of the girl and held that since there was a
discrepancy between the school certificate
and birth certificate, the benefit of doubt
should go to the accused. So the court held
that the girl was not a minor. Regarding
penetration, it was held: "In a small room
in the presence of other people, the girl
would have felt ashamed and it is difficult
to believe that the accused could have had
intercourse with her twice. It is possible that
the accused may have tried to gratify his
aroused passion by necking the girl. To over-
come this, he may have forcibly touched her
private parts with his hands. This was mis-
understood/misconstrued by her. Evidence
lacks the degree of credibility required for
recording a conviction under Section 376 of
the IPC'4 Forcible penetration of finger
does not amount to rape, under the patriar-
chal scheme of things. In this case, even
while the judge admitted that the hymen was
ruptured because oP 'forcible finger penetra-
tion, according tQ him this did not even
amount to assault. Further the judge seems
to as'sume that in a rape case, the girl can
determine when and in whose presence she
wants to get raped and that she has a choice
of 'feeling shy' during the rape.
In another case a tribal woman was raped
by a police constable who entered her house
at night on the pretext of conducting a
search. Her husband, who was a night
watchman, was away at work. The Bombay
High Court upheld the Dhulia sessions court
acquittal on the following ground: "Pro-
bability of the prosecutrix who was alone
in her hut, her husband being OUt, having
consented to sexual intercourse cannot be
ruled out. Benefit of doubt must go to the
accused and acquittal could not be interfered
with"
One of the most important ingredients of
the 1983 amendment is the clause regarding
minimum punishment of 10 years in cases
of custodial rapes and child rapes. But it ap-
pears that this clause was never meant to be
taken seriously as it contrasts totally with
the attitude of the judiciary regarding youth
offenders. Usually, in a rape case of a young
girl, the
rape
is committed
by teenaged boys
or youths. In such cases the tendency of the
courts has been to treat the accused with
leniency. Here is a glimpse of judgments in
cases of child'rapes:
A seven-year old Harijan girl was raped
by a boy of 18. She was severely injured and
left unconscious. The sessions court sentenc-
ed the accused to 5 years' rigorous imprison-
ment. In an appeal by the state to enhance
the sentence, the Rajasthan High Court
dismissed the appeal and held: "Although
the rape warrants a more severe sentence
considering that the accused was only 18
years of age, it would not be in the interest
of justice to enhance the sentence of five
years imposed by the trial cour .
Where an I -year old girl was raped by a
youth while another-kept her pinned down
to the floor and gagged her with her own
sari, the sessions court convicted the accus-
ed with 5 years' imprisonment. The Madhya
Pradesh High Court went to the extent of
stating: "Increasing cases of personal
violence and crime rate cannot justify a
severe sentence on youth offenders:"6
The positive judgments which are reported
involve rape of minor girls resulting in multi-
ple injury where the question of consent
does not arise. But even these judgments
have a conservative reasoning for the con-
viction. Here is an example of how the
judiciary looks at the issue: "Virginity is the
most priced possession of an unmarried girl.
She would never willingly part away with this
proud and precious possession:"'
TOWARDS A NEW DEFINITION
The judgments quoted above reveal that
the campaign has not succeeded in evolving
a new definition of rape beyond the para-
meters of a patriarchal value system. In fact
the same old notions of chastity, virginity,
premium on marriage and fear of female
sexuality are reflected in the judgments of
the post-amendment period. Penis penetra-
tion continues to be the governing ingredient
in the offence of rape. The concept of 'penis
penetration' is based on the control men ex-
ercise over 'their' women. Rape violates these
property rights and may lead to pregnancies
by other men and threaten the patriarchal
power structure. We have not gone beyond
this definition.>
Recently a five-year old girl was raped by
a youth of around 18 years old. The girl was
made to lie on her stomach and was raped
from the back. The girl suffered severe in-
juries. At the poIicq station the girl stated
that a finger was inserted. The police expetd
EcOnQMic and Political Weekly April 25, 1992
WS-21
a five-year ol(i to know the difference bet-
ween a penis .nd a finger, even when she was
attacked from the back. The offence was
registered as inde-cent assault under section
354 of IPC. The L-maximum punishment for
this offence is two years while rape is
punishable with life imprisonment.
In all criminal offences, injury and hurt
caused by using weapons is more grievous
than the one caused by the use of limbs but
in the case of rape, the injury caused by the
use of iron rods, bottles and sticks does not
even amount to rape. Many western coun-
tries have totally abolished the term 'rape'
and termed it as 'sexual offences'; the
punishment is determined by various factors
including the amount of injury caused. By
this definition the distinction between rape,
attempt to rape and violation of woman's
modesty is abolished and they are treated as
offences of a similar category and punish-
ment is based on the severity of the offence.
When the amendment came about, legal
experts both within the movement and out-
side, had expressed their fears that more
stringent punishment would result in fewer
convictions. The judgments of the post-
amendment period justify their fears. In-
stead perhaps there is a need to reformulate
the clause on punishment which should in-
clude compulsory monetary compensation
to the victim instead of stricter punishment.
The issue needs further debate.'8 Since
there are a large number of acquittals in the
appeal courts, a demand needs to be made
that unless very strong circumstancts can be
shown to reject the verdict of the trial courts,
confirmation of conviction by courts below
should be a matter of course. Another most
important question is whether a judgment
delivered after 3-5 years, with an option of
going on appeal, can ever give justice to
women. The situation is even worse in major
cities. We need to set a strict time limit for
deciding all sexual offences. And marital
rape-the most common and accepted form
of rape in our society needs to be recognised
legally.
II
Dowry
-11984461
The Dowry Prohibition Act of 1961 is a
very small act which consists of only eight
sections (two more sections were added later
during the amendments), full of contradic-
tions and loopholes. The act laid down a
very narrow definition of dowry as "proper-
ty given in consideration of marriage and
as a condition of the marriage taking place".
The definition excluded presents in thie form
of cash, ornaments, clothes and- other arti-
cles from its purview. The definition also did
not cover money asked for and given after
marriage. Both giving and taking dowry was
an offence under the act. The offence was
non-cognisable and bailable. In legal
parlance this means that it is a trivial
offenc. The maimum punishment was six
months and/or a fince.of Rs 5,000. To make
matters more complicated prior sanction of
the government was necessary for prose-
cuting a husband who demanded dowry.
Complaints had to be filed within a year
of the offence and only by the aggrieved
person.
The ineffectiveness of the act was mani-
fested at different levels. On one level there
were hardly any cases filed under this act and
there were less than half a dozen convictions
in the period between the enactment and the
amendment. So the purpose of the enact-
ment as a deterrent factor was totally lost.
The Bombay High Court in Shankar Rao
vs L V Jadhav held that a demand for
Rs 50,000 from the girl's parents to send the
couple abroad did not constitute dowry.'9
The judgment held that since the girl's
parents had not agreed to give the amount
demanded at the time
of
marriage and as
such it would be deemed as 'consideration
for marriage'. Anything given after the mar-
riage would be dowry only if it was agreed
or promised to be given as consideration for
the marriage. This absurd interpretation was
in total contrast to the spirit of the act and
defeated the very purpose for which it was
enacted. Secondly, in total defiance of the
act, the custom of dowry had percolated
down the social scale and communities
which had hitherto practised the custom of
bride price were now resorting to dowry. At
the other level all the violence faced by
women in their husbands' homes was being
attributed to dowry and the term 'dowry
death' became synonymous with suicides
and wife murders.
AGAINST DOWRY: A M ISPLAC[D
CAMPAIGN
Most cities in India witnessed public pro-
tests against dowry deaths which received
wide media coverage It came to be accepted
both nationally as well as internationally
that dowry death or bride burning as it was
termed, was a unique form of violence ex-
perienced by Indian women, more specifical-
ly by Hindu women. A logical extension of
this argument was that a more stringent law
against dowry would effectively curb dome-
stic violence and stop wife murders. An over-
simplified analysis of domestic violence,
which is a far more complex and universal
phenomenon, was put forward by activists
and responded to by law makers.
To plug some of the glaring loopholes of
the act, a private member's bill was introduc-
ed in parliament by Pramila Dandavate, MP
in June 198020 The bill was referred to the
joint committee of both the houses. The fin-_
dings of the committee were that the defini-
tion of 'dowry' was too narrow and vague;
the act was not being rigorously enforced.
The stipulation that complaints could be fil-
ed only by the aggrieved party within a year
from the date of the offence narrowed down
its application. Also punishment of im-
prisonment for six months and/or fine up
to Rs 5,000 was. not formidable enough to
serve as a deterrent.
The committee suggested that the woras
"in consideration for the marriage" ought
to be totally deleted from the definition of
dowry. The committee also felt that the ex-
planation which excluded presents from the
definition of dowry nuiified the objective
of the act. It recommended that the gifts
given to the bride should be listed an'd
registered in her name. In case she dies dur-
ing the first five years the gifts should revert
back to her parents. In case she is divorced,
the gifts should also revert back. The
presents could not be transferred or dispos-
ed of for a minimum period of five years
from the date of marriage whithout the prior
permission of the family court on an appli-
cation made by the wife. These provisions
were aimed at ensuring the bride's control
over the gifts. The committee also recom-
mended the appointment of Dowry Prohibi-
tion Officers for the enforcement of the act.
Retrospectively, it appears that the recom-
mendations were based on an erroneous
premise that the girls can exercise a choice
either at the time of marriage or later in their
husbands' homes. It also did not take into
consideration the desperation of parents to
get their daughters married and keep them
in their husbands' homes at all costs. It also
ignores the fact that most of the women in
this country have no consciousness of their
legal rights..
Unfortunately, the bill which was intro-
duced in 1984 failed to take into considera-
tion some of the positive recommendations
of the committee. The main feature of the
act was that it substituted the words 'in con-
nection with marriage' for the words 'as con-
sideration for the marriage'. It was felt that
the simple omission of the words 'as con-
sideration of marriage' would make the
definition too wide. The suggestion of
imposing a ceiling on gifts and marriage
expenses did not find a place in the act.
The important feature was the increase in
punishment to five years and a fine up to
Rs 10,000 or the value of dowry whichever
is more. But again the section did not apply
to presents given to the bride or to the
bridegroom. The one year limitation period
was removed and it was now possible for the
girl's parents, relative or a social work in-
stitute to file a complaint on her behalf. The
requirement of prior sanction of the govern-
ment for prosecuting a husband who
demands dowry was dropped and dowry was
made into a cognisable offence.
Before the impact of the amendment
could be gauged the act was again amrended
in 1986. Rarely are acts amended within such
a short span. It had taken over 100 years for
the rape laws to change. The discriminatory
laws concerning Christian divorces enacted
in 1869 have not yet changed. But suddenly
the government expresses great concern for
the well-being of women and amends a law
within two years.
The amendment of 1986 was aimed at
making the act even more stringent. The fine
was increased to Rs 15,000. The bLrden of
proving the offence was shifted to the ac-
cused and dowry was made into a non-
bailable offence. A ban was imposed on
advertisements. If the woman died an un-
natural death, her property would devolve
on her children and in the event of her dying
childless would revert back to her parents.
In fact all the loopholes pointed out by the
committee were now plugged. So the stage
was all set to abolish 'dowry death'. (The act
also amended the IPC anid created a new
category of offence called 'Dowry Deaths';
(S 304B.) This provision will be discussed in
detail in the next chapter, i e, domestic
violence.
In spite of these amendments nothing
changed. Women continued to get burnt in
their homes. Reported cases of suicides and
murders steadily increased in every major
city (see Table 1). The demands for dowry
in the form of gifts to the bride and groom
and continued demands for money became
a predictable way in which young brides
would be humiliated. The parents of the girls
(some of whom who would not spend
money on educating the girls or in making
them independent) spent huge amounts of
money on lavish weddings to impress the in-
laws and tried to meet all demands for gifts
and valuables with the hope that the girl
would never return to her native home,
creating a 'stigma'. Young women discover-
ing that there was no place for them in their
parents' homes resorted to committing
suicide in a desperate bid to escape humilia-
tion snd violence. At times when they had
a premonition of the impending disaster, and
had sought the parents' help just before the
murder, the parents had sent them back to
be murdered.
The problem of dowry arose not at the
time of the marriage but only after the girls
had died, in order to avenge their deaths and
retrieve the gifts. The death of the daughter
did not in any way change the reactionary
and conservative approach to marriage and
the parents were all set to marry their next
daughter with an equal amount of dowry to
the boy of their choice. 7temendous pressure
would be exerted on girls who wanted to ac-
quire professional skills, live independently
or marry a boy from a different class, caste
or religious background. In such cases the
parents who cry hoarse against dowry would
go all out and disinherit their daughters.2'
Protests against doWry were often initiated
at the instance of people who conformed to
this value system. They would usually have
a total contempt for the ideology, values or
life styles of the members of women's
organisations. These factors made,the ac-
tivists reassess their stand on the issue of
dowry. The article in Manushi by Madhu
Kishwar 'Rethinking Dowry Boycott' created
a lot of controversy and a public debate.22
The women's organisations began question-
ing the role of the girl's parents in driving
her to death. Organising dowry protests
could no longer be treated as a simple
--bvious demand. Individuals and groups
began to feel that thie campaign against
dowry was wrongly formulated because it
did niot link the issue of dowry with that of
a woman's property rights in their parent's
homes.:If
violence is a manifestation of a
woman's powerlessness in her husband's
house, not reeiving any dowry or gifts from
her parents would make her even more
vulnerable to violence and humiliation.
III
Domestic Violence 11983 and
19861
The discussions on the two amendments
to the criminal laws (with a specific reference
to Sections 498A and 304B of IPC) are
usually carried on as an appendix to the
discussion on dowry. Here a conscious ef-
fort is made to evaluate them within the
framework of domestic violence because
they in fact deal with (or at least ought to
deal with) t ie issue of domestic violence-
cruelty and harassment of wives and wife
murders.
Three major acts govern criminal trials
and punishment: The Indian Penal Code
(IPC) lays down categories of offences and
stipulates punishment. The Criminal Pro-
cedural Code (CrPC) lays down procedural
rules for investigation and trial and the
Indian Evidence Act prescribes the rules of
evidence to be followed during a trial.
Till 1983 there were no specific provisions
pertaining to violence with in the home.
Husbands could be convicted under the
general provisions of murder, abetment to
suicide, causing hurt and wrongful confine-
ment. But these general provisions of
criminal law do not take into account the,
specific situation of a woman facing violence
within the home as against assault by a
stranger. The offence which is committed
within the privacy of the home by a person
on whom the woman is economically and
emotionally dependent needs to be dealt
with on a different plane.
In criminal offences it is the state which
is the prosecuting body. Hence it is extremely
important to safeguard the right of an in-
dividual accused against the state machinery
during a criminal trial. So strict procedures
of investigations have to be followed and the
rules of evidence have to be strictly adhered
to.
It was extremely difficult for women to
prove violence by husbands and in-laws
'beyond reasonable doubt' as was required
by the criminal jurisprudence. There would
be no witnesses to corroborate her evidence
as the offence is committed behind closed
doors. Secondly even if the beating did not
result in grievous hurt, as stipulated by the
IPC the routine and persistent beatings
would cause grave injury and mental trauma
to the woman and her children. Different
criteria had to be evolved to measure injury
and hurt in a domestic situation. Generally
complaints can be registered only after an
offence has been committed. But in a
domestic situation a woman needs protec-
tion even before a crime is committed when
she apprehends danger to her life as she is
living with her assaulter and is also depen-
dent on him.
Even though provisions of the IPC could
be used against the husband for assaulting
the wife it was very seldom done The police
being committed to the value system which
condones wife beating wvould not register a
complaint against a husband for assaulting
the wife even when it had resulted in serious
injury which was punishable under Sections
324 or 326, i e, causing grievous hurt with
or without weapons. It is generally assumed
that a husband has a right to beat his
wife/ward.
On the contrary, a wife who actually
mustered enouigh courage to approach a
police station would be viewed as brazen and
deviant. Instead of iegistering her complaint,
the police would counscl the wo'nan about
her role in the hoes- nrd emp ain that she
must please her husband as-d ob-y h.m. She
would be sent back without eve,-i :gistering
a complaint. So a special law +;as needed to
protect a woman in her o%?n home.23
A WRONG STRATEGY
Following the public protests in cases of
rape and dowry deaths in all major cities and
towns in India during the eaEly 80s, a large
nunber of women came out of their cloisered
silence and started seeking help to prevent
domestic violence. Since the police refused
to register their complaints under the ex-
isting provisions of the IPC a demand was
raised for a special enactment. Many western
countries passed laws against domestic
violence in the 70s. Unfortunately, in India,
the women's movement did not raise the de-
mand for a similar law at that stage. Initially,
only dowry-related violence was highlighted
by women activists. All violence faced by
women within homes was attributed to
dowry by activists as well as by the state.
Their initial demand was for a law to pre-
vent dowry-related violence. This turned out
to be a narrow, shortsighted and wrongly
formulated programme. Placing dowry
violence on a special pedestal denied recog-
nition and legitimacy to the need for pro-
tection against violence by all women under
all circumstances.
While the government was over-eager to
pass laws even when there were adequate
provisions within the IPC for crimes such
as sati, obscenity and procuring minors for
prostitution, in case of domestic violence in-
stead of a new legislation, the government
was content to amend the provisions of the
Criminal Acts. The Criminal Acts were
amended twice during the decade-first in
1983 and again in 1986, to create special
categories of offences to deal with cruelty
to wives, dowry harassment and dowry
deaths.
Prior to the amendments, although the
IPC did not specifically deal with violence
in a domestic situation, it had a chapter
which dealt with offences against marriage.
Another chapter dealt with offences affec-
ting the human body-murder, suicide, caus-
Economic and Political Weekly April 25, 1992
WS-25
ing hurt, etc. It is interesting to note where
the first enactment concerning cruelty to
wives (or dowry harassment as it is popularly
known) is placed. Chapter XX is entitled
'Offences Related to Marriage' and includes
the following sections:
S 493-Cohabitation caused by a man
deceitfully including a belief of lawful
marriage.
S 494-Marrying again during the lifetime
of husband or wife.
S 495-Concealment of former marriage
from a person with whom subsequent marri-
age is contracted.
S 496-Going through a fraudulent marri-
age ceremony without lawful marriage.
S 497-Adultery (only a man is punishable
under this section for committing adultery
with a married woman).
S 498-Enticing or taking away or detain-
ing with criminal intent a married woman.
Chapter XVI of the IPC deals with of-
fences affecting the human body. This is fur-
ther divided into offences affecting life-
murder, suicides, abetment to murder and
suicide, abortion, etc-Ss 299 to 318; those
involving hurt which include simple and
grievous hurt, with or without weapons
(Ss 323-338); wrongful restraint and wrong-
ful confinement (Ss 341-348); assault, in-
decent assault (molestation), kidnapping,
abduction of minors, buying or selling a
minor for the purpose of prostitution,
unlawful labour, rape and unnatural sex, etc
(Ss 352-377).
The first amendment, cruelty to wives, is
not situated within Chapter XVI.-offences
affecting the human body either under the
section 'causing hurt' or under the sections
dealing with assault, etc, where it would have
been more
appropriate.
Instead it is ironical-
ly placed as an appendix to S 498. This is
an obnoxious and extremely derogatory pro-
vision which treats women as the property
of men. The section gives every husband a
right to prosecute any man who takes away
his wife even though this has been done with
the wifes consent. Ss 497 (adultery) and 498
are a constant reminder to women about
their subordinate status within the IPC. Ter-
ming this new and important section as
S 498A, ought to have been a cause for pro-
test. But surprisingly, it did not raise any
criticism from legal experts either within the
movement or outside.
Fortunately, although conceived as a pro-
tection against dowry harassment, the word-
ing of the section was wide enough to apply,
to other situations of domestic violence The
section is worded thus:
Whoever, being husband or the relative of
the husband of a woman, subjects such
women to cruelty shall be punished with im-
prisonment for a term which may extend to
three years and shall also be liable to fine.
Explanation-for the purposes of this sec-
tion 'Cruelty' means
(a) any wilful conduct which is of such a
nature as is likely to drive the woman to com-
mit suicide or to cause grave injury or danger
to life, lirnb or death whether mental or
physical of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or
any person related to her meet any unlawful
demand for any property or valuable security
or is on account of failure by her or any per-
son related to her to meet such a demand.
Although the aim was to deal with dowry
harassment and suicide, explanation (a) does
not use the word dowry to define cruelty. It
also includes mental cruelty. Hence it is wide
enough to be used in situations of domestic
violence and mental cruelty. Where it falls
short is by the use of 'grave' in explanation
(a). This precludes the evcryday violence suf-
fered by large number of women. Even with
this limitation, the section can. be an effec-
tive deterrent to violent husbands if only the
judiciary and the police interpret and enforce
it in the right spirt.
Initially, the police refused to register cases
under this section unless specific allegations
of dowry harassment were made. But as a
result of constant agitations and interven-
tions, it is now accepted that the section
ought to be used in all situations of cruelty
and domestic violence. This-~Was a small vic-
tory to those who have been campaigning
for law on domestic violence. Because the
police would not register a comtAaint under
this section unless dowry harassment Xis
specifically mentioned, vague allegations of
dowry demands were added on to genuine
complaints of wife beating. This tends to
caste aspersions on the credibility of the
whole complaint, the case cannot then stand
through the legal scrutiny in a criminal court
and results in acquittal of the husband. At
the other level, statistics compiled by the
police
department
erroneously convey the
impression that all violence is dowry related,
leading to a false assumption that if dowry
is curbed, violence on women will disappear.
There is a misconception among the
police and the criminal lawyers that the sec-
tion is misused by women. While it is true
that a significant number of cases filed
under this section are subsequently with-
drawn, the complexities of women's lives,
particularly within a violent marriage, have
to be taken into account. The conviction of
the- husband may not be the best solution
to her problems.
The various alternatives that she has to
choose from, each one in itself a compro-
mise, may make it impossible for her to
follow up the criminal case. Let us examine
some of them.,Since the -section does not
protect a wonian's right to the matrimonial
home, or offer her shelter during the pro-
ceedings she may have no other choice but
to work out a reconciliation. At this point
she would be forced to withdraw the com-
plaint as the husband would make it a
precondition for any negotiations. If she has
decided to opt for a divorce and the husband
is willing for a settlement and a mutual con-
sent divorce, again withdrawing the com-
plaint would be a precondition for such
settlemnent.
Thirdly, if she wants to separate or eworce
on the ground of cruelty, she would have to
follow two cases, one in a civil court and the
other in a criminal court. Anyone who has
followed up cases in cdurt would well under-
stand the tremendous pressure thiswould in-
volve for a woman at a stage of rebuilding
her life, finding shelter, job and childcare
facility. Under the civil law she would at least
be entitled for maintenance, which would be
her greater priority. If she has to choose bet-
ween the two proceedings, in most cases
women would opt for the civil case where
they would be entitled to maintenancce, child
custody, iniunction against harassment and
finally a divorce which would set them free
from their violent husbands.
But this is not to imply that S 498A has
no use for women. Most women find it ex-
tremely useful as a deterrent. Women may
not be in a position to Fee it through to its
logical end. But this is not to deny its
usefulness in bringing husbands to the nego-
tiating table. Since the offence is non-
bailable, the initial imprisonment for a day
or two F^lps to convey to the husbands the
message that the wives are not going to take
the violence lying down any longer. Ulti-
mately most of the criminal cases which are
followed up are the ones where the woman
has died and the case is followed up by her
relatives.
In this context a recent judgment of the
Bombay High Court comes as a welcome
respite. In a case where the husband had in-
itiated criminal proceedings against the wife
and made baseless allegations agains6 her
character, the wife filed a complaint under
section 498A stating this amounts to cruelty.
The husband was convicted by the judicial
magistrate, Pune, and was awarded six
months' imprisonment and a fine of
Rs 3,000. On appeal, the sessions court set
aside the imprisonment and enhanced the
fine to Rs 6,000. The wife filed an appeal
in the Bombay High Court against the
reduction of sentence on the ground that it
has resulted in miscarriage. Madhuri Chitnis,
herself an advocate, appeared in person and
urged that the degree of leniency shown to
the husband cannot pass the test of judicial
scrutiny and it would be a mockery of justice
to permit the accused husband to escape the
extreme penalty of law when faced with
evidence of such cruelty. To reduce the
sentence would render the judicial system
suspect and the common man would lose
faith in courts, she submitted. The high
court upheld the conviction but considering
the age of the husband (which was around
50 years) did not impose imprisonment but
enhanced the fine to Rs 30,000. The amount
would be awarded to the wife as compensa-
tion. Subsequently, the Supreme Court has
upheld the Bombay High Court judgment
and commended the Bombay High Court
for its progressive stand on women's
issues.24
But this judgment comes after a series of
negative judgments under S 498A by various
high courts including the Bombay High
Court. Before analysing the judgments
however, it is nrcessary to mention the
second amendment to theA IPC which was
enacted in 1986. Both the amendments have
also amended the CrPC and Evidence Act.,
The amendment of 1986 introduced a new
offence of dowry.
304B IPC-Dowry death: Where the death
of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal
circumstances within seven years of her mar-
riage and if it is shown that soon before her
death she was subjected to cruelty or harass-
ment by her husband or any other relatives
of her husband for or in connection with any
demand for dowry, such death shall be called
'dowry death' and such husband or relative
shall be deemed to have caused her death.
The offence is punishable with a minimum
of seven years and a maximum of life im-
prisonment. The presumption of guilt is on
the accused and he would have to prove that
he is innocentt. This section unlike S 498A
gives no scope to be used in situations where
the violence is not linked to dowry. Since do
record is mainitained and no complaints
made at the time of meeting the dowry
demands, while the girl is alive, it is extreme-
ly difficult to prove a dowry death under this
section. The section also presumes that
women are harassed for dowry only within
the first seven years of marriage Overall, this
section is not li kely to benefit women to deal
with domestic violence.25 The other sec-
tions of the IPC which have been used in
cases of wife m urder are S 302 -punishment
for murder, S 306 abetment to suicide. Here
are some judgments where these sections as
well as S 498A have been negatively inter-
preted by the courts in casesof wife murder.
In a case of abetment to suicide under
Section 306 lPC, the Punjab and Haryana
High Court set aside the conviction and
acquitted the husband on the ground that
presumption as to abetment to suicide is
available only if husband is proved guilty of
cruelty towards wife.26 In another case, the
Madhya Pradesh High Court set aside the
sentence of three years and acquitted the
mother-in-law. The court held that since the
deceased ended her- life by self immolation
when none of the in-laws were present in the
house at the time of suicide: "Suicide in all
probability was committed out of frustration
and pessimisim due to her own sensitiveness.
The court held that case of harassment and
humiliation was not proved'27 In a case
under Section 498A IPN, the Bomnbay High
Court held that it is not every harassment
or every type of cruelty that could attract
S 498A. It must be established that beating
and harassment was with a view to force the
wife to commit suicide or to fulfil illegal
demands of husband or in-laws. The court
held that beating and harassment with a
view to force the wife to commit suicide or
to fulfil the illegal demands of the husband
was not established_28 In the famous Man-
jushree Sarda case, the sessions court, Pune,
convicted the husband of murdering his wife
by poisoning. The Bombay High Court con-
firmed the order. But the husband was
acquitted by the Supreme Court. The court
held that the guilt of the husband was not
proved beyond -reasonable doubt and the
wife might have committed suicide out of
depression.29
In the case of Vibha Shukla, Vibha was
found burnt while the husband was present
in the house. A huge amount of dowry was
paid at the
tipie
of the wedding and there
were several subsequent demands for dowry.
Vibha's father-in-law was an Assistant Com-
missioner of Police in Bombay. When Vibha
had delivered a daughter the family did not
accept the child and she was left behind in
Vibha's parents' house. In spite of all this,
the Bombay Highz Court set aside the order
of conviction of the sessions court acquit-
ting the husband of the charge of murder
and harassment under section 498A. The
court held that the offence of murder could
not be proved beyond reasonable doubt and
further that occasional cruelty and harass-
ment cannot be construed as cruelty under
Section 498A IPC.30
Again in the recent judgment delivered on
March 6, 1991, in yet another well publicis-
ed case of the murder of Geeta Gandhi, the
Bombay High Court set aside the conviction
by the sessions court, Nagpur and acquit-
ted the husband and father-in-law of the
charge of murder under section 3202 IPC.
The body of Geeta Gandhi was burned
-beyond recognition, the flesh roasted and
charred right up to the bones. Her body was
recovered from the bathroom at around 5.30
am. The father-in-law and the husband who
were presumably sleeping in- the very next
room had made no attempt to put out the
fire. Instead, the brother-in-law had called
the fire brigade. Geeta, a post graduate in
microbiology, who stood Ist in the MSc
exam, was in the process of setting up her
own pathology clinic. She was married in
January 1984 and died in April 1985. At the
time of her death she was four months preg-
nant. She had a previous miscarriage when
she had jaundice and also occasionally suf-
fered from minor ailments. The court, while
acquitting the husband and father-in-law,
presumed that Geeta might have committed
suicide because of depression caused by her
ill health.3"
While laws have proved inadequate to deal
even in this blatant form of violence, newer
forms of violence against women are coming
to light. The debate can no longer be
restricted to violence by husbands and
mothers-in-law. The decade has witnessed
not only newer forms of killing female
children through sophisticated means like sex
determination tests but also the well plan-
ned suicide pact by the Sahu sisters32 Kan-
pur, followed by similar instances in other
parts of the country. The well publicised case
of the Thakkar sisters, two unmarried
women killing their married sister-in-law in-
dicates yet another facet of the issue of
domestic violence. Incidences point out that
a whole new complex approach is needed to
deal with issues of domestic violence.
Before conclusion two cases need to be
mentioned specifically which will be relevant
to the issue of domestic violence in future:
In the first instance, a man and his wife
were sentenced to death by the Jaipur High
Court in a case of wife murder and recom-
mended that they be publicly hanged. The
judgment received widespread approval. It
was generally felt that women's organisations
would see this as a victory. Manushi, a
women's journal, expressed their shock at
the judgment and were highly critical of the
judgment. The authors argued thst the solu-
tion to domestic violence does not lie in
death sentence to the accused but creating
alternatives for women whereby they are
strengthened.)4 The second case concerns a
woman who had killed her husband by
strangulating him with a rope when he was
attempting to rape their 14-year old
daughter. The woman, her daughter and her
younger sori were convicted under S 302 of
IPC by the sessions court. In appeal the
Madras High Court acquitted them and held
the murder was committed in self defence.35
IV
Prostitution
11986)
Every act discussed earlier was in response
to the demands raised by a sustained cam-
paign for legal reforms. There was a basic
presumption or at least a facade of safe-
guarding the rights of a woman victim and
protecting her dignity. In this context, Sup-
pression of Immoral lRaffic in Women and
Girls (SIT) Act, 1956, stands apart because
it has no such pretensions. In fact it penalises
the victim. The conservative approach to
prostitution rests on the premise that the
society is divided into two sets of women-
the good and the bad. The good women are
within the homes-the submissive docile
wives and daughters who can be battered,
burnt or raped within the home but who
need to be protected from the big bad world
TABLE 1: REPORTED CASES OF DOMESTIC
VIOLENCE IN GREATER BOMBAY
Year Murders Suicides Harass-
under, Sec- under Sec- ment
tion 302 tion 306 under Sec-
IPC IPC 304B lion 498A
1PC of IPC
and under
Sections
3,4,5 of
Dowry
Prevention
Act
1986 4 38 41
1987 12 45 143
1988 2 56 152
1989 13 103 177
1990 9 72 143
Source: Social Service Branch, CID, Bombay.
Cited in The Lawyers, Bombay, April 1991.
IPC = Indian Penal Code.
WS-27
outside. And t he bad women are out on the
street who are to be treated with contempt
and taught a lesson or two. And while one
set of women needed to be protected from
the other, the men can have access to both.
Prostitution is viewed as a 'necessary evil'
which provides an easy outlet for the sup-
posedly uncontrollable male sexuality. So
while it is tolerated, the rest of the soiety
needs to be protected from thes evil women.
So prostitution needs to be contained within
certain areas of the city. By an extension of
this logic the Sil Act prohibits a prostitute
from public places and forces her to work
only in certain areas. This caused the pro-
stitute to be confined to 'ghettoL-like
areas.36 By penalising her, the act subjects
her to further exploitation and forces her to
live like a criminal in constant fear of police
harassment. In keeping with the basic pre-
mise that prostitution is a necessary evil to
serve men's interest, the client is not punish-
ed by the act. E-ven the male pimps and touts
can go scot-free. Why was the act necessary?
If it is only to prohibit trafficking in women
were there no other provisions which could
be used for this purpose?
The Indian Penal Code has various pro-
visions for restraining kidnapping and
abductions of minors. Under Ss 366, 366A
IPC, kidnapping, abduction and procure-
ment of a minor girl is an offence punishable
with 10 years' imprisonment and fine. The
offence is triable by a court of sessions.
Under Ss 372, 373 buying and selling minor
girls for prostitution is punishable with im-
prisonment of 10 years and fine. But it does
not penalise a prostitute. Perhaps for this a
new act was necessary! The act was sup-
posedly passed in pursuance of the interna-
tional convention for prevention of immoral
traffic.
Prostitution was defined as the act of a
female who offers her body for promiscuous
sexual intercourse for hire, whether in money
or in kind. Th be called a prostitute under
the act, two ingredients had to be satisfied.
(i) The female has to offer her body for in-
discriminate sexual intercourse and (ii) she
should do so for some payfhent. It is the
continuous act of offering her body for hire,
which satisfies the definition.
This is the legal definition. But the term
can be applied to any woman -who does not
subscribe to the conservative norms regard-,
*ing women laid down by sciciety. 'Prostitute'
is a general abVsive term used against any
woman in any situation. l'he police do not
have any other criteria for deciding which
woman is a prostitute. The police decide
which woman is a prostitute by her manner,
walk, make up, dress, the hour of the day
when she is out or by any other criteria
which they may choose to apply at that par-
ticular point of time. This can also be an ef-
fective way to humiliate women or force
them to adhere to conservative norms of
society regarding manner of dressing,
behaviour and restrict her movement. Any
woman can be picked up, harassed, molested
or rapeV by the police on the pretest that she
is a prostitute and was soliciting in pub!ic.
So the adt, while protecting men exposes all
women to the danger of police harassment.
Here is an example of how it affects women
in their day-to-day life:
On February 21, 1991, Madhushree Dutta,
an activist of the women's movement was
molested and assaulted by three men at a
railway station. They touched her below the
breasts and on her shoulder. When she cried
for police help they smirked and said they
were the police and that they would arrest
her and lock her up for six months. When
she asked them for their identity cards they
kicked her on her stomach and bashed her
on the face. Scared out of her wits she ran
away.37 How did the police talk so con-
fidently and arrogantly? From where did
they derive their power? The power is
bestowed on them by the act whereby any
woman can be picked up, abused, molested
and locked up on the pretext of soliciting in
a public place.
In spite of her awareness of her legal
rights, there was hesitancy in filing the com-
plaint because of the possibility of repercus-
sions. Further on the advice of all the friends
and well-wishers she did not mention the fact
that she was assaulted at the railway stall
while buying cigarettes late at night. This has
led to a discrepancy between the FIR and
the later statements. Why did she not men-
tion it? The answer is obvious. But what is
worse, as soon as the police found out this
fact, they mentioned it in a press statement.
Public opinion was turned and overnight she
lost credibility. What sort of a woman was
she to be out at night at 2.30 am buying
cigarettes at railway stall? There is only one
answer. Fortunately for her, perhaps because
of her involvement with the theatre and the
women's movement, she could still maintain
her balance as certain sections of the press
continued to give her favourable publicity.
But not every woman will be so lucky. This
is how the society and the police define a
prostitute.
The act stipulates imprisonment up to six
months or fine or both for soliciting. A pro-
stitute can be convicted if she makes any
gesture, says words or wil fully exposes
herself, even from her own house for the
purpose of prostitution. In addition, under
the Bombay Police Act, the prostitute can
be arrested for indecent behaviour. Judging
by th'e number of arrests, there seems to be
large-scale rounding up of prostitutes under
both these acts. The act is used more to
harass prostitutes and extract bribes-both
sexual and monetary-than to prevent pro-
stitution. The Madras High Court observed
that merely to indulge in some flirtation with
a stranger, or to behave in such a way as to
attract the attention of the person of the op-
posite sex may be regrettable or immodest,
but it does not amount to any offence38
The dismal facts are that SITA is a penal
statute and welfare provisions are alien to
it. Only one section considers that a woman
or girl may want to get out of prostitution.
Under the act an application may be made
by a woman or a girl to be placed in a pro-
tective home or in the care of the court. But
a prostitute who is illiterate and totally
ignorant of her rights and who is constantly
intimidated would rarely have the confidence
to do so. Also given the deplorable Condi-
tion of the rescue homes, unless a woman
is desperate she would not even want to.
When the brothels are raided by the police,
the women are hustled around, sent to re-
mand or protective homes and tlhn releas-
ed into the hands of the very brothel keepers
who pose as their guardians.
The amendment of 1986.does hiot change
the basic framework nor provide any clarity
on the issue. It does not decriminalise pro-
stitution nor offers any safety and protec-
tion against harassment and indignity. As
in other amendments, the main thrust of the
amendment is enhancement of punishment
and creation of newer categories of offences.
The act is given a new name after the amend-
ment, 'The Immoral Traffic (Prevention)
Act, 1988'. It recognises that children or even
men can be sexually abused and exploited
for commercial purposes. The provision
which penalises a prostitute is retained in the
amendment.39 The younger the age of the
person who is sexually exploited, the greater
is the magnitude of punishment of her ex-
ploiters. The amendment also increases
punishment for living on the earnings of
prostitution of a child or minor to an im-
prisonment term of not less than seven years
and not more than 10 years. The conviction
for living on the earnings of prostitutibn of
majors is imprisonment up to two years and
fine up to Rs 1,000 or both. The act provides
an increase in the prison term for offenders
convicted for procuring majors and also
makes provisions for life imprisonment for
offences against children.
Increased punishment of detention of any
person on premises where prostitution is car-
ried on is also introduced. These provisions
also include (I) Imprisonment may be ex-
tended to life on conviction, (2) The presence
of a child in a brothel presumes the offence
of detention of a child, (3) Sexual abuse of
a child or minor in a brothel presumes that
he or she has been detained for prostitution
or sexual exploitation. The amendment seeks
to plug the loopholes provided to landlords,
tenants and other occupiers of premises to
escape punishment for brothel-keeping
under the defence of 'lack of knowledge'.
While punishment for every other section is
increased, the male clients are not affected
by the amendment. The Bill mitigates the of-
fence committed by male pimps and touts
by providing them imprisonment between
seven days and three months.
Following are the only two provisions of
the amendment which might marginally
benefit a prostitute:
The first one recognises the abuse of
power by the police during raids. The
amendment prohibits male officers em-
powered under the act from making a search
without a warrant unless accompanied by
at least two women police of ficers. Interro-
WS.28 Economic and Political Weekly April 25, 1992
gation of women have to be carried out by
women police officers failing which the
questioning of such women or girls can be
done on;y in the presence of a lady member
of a recognised welfare institution or
organisation. Women and girls'rescued from
brothels or other premises have been known
to be harassecl for money or sexual payment
by male police officers. This clause curtails
police power at least to the extent of main-
taining the prostitute's dignity. It also man-
dates a medical examination of such persons
to determine age or detection of injuries
caused by sexual abuse.
Secondly, it incorporates a new clause
concerning rehabilitation. It stipulates that
protection homes should have appropriate
technically qualified persons, equipment and
other facilities. The act mandates that pro-
tective homes should not only allow women
and girls to live in dignity but also to find
gainful employment. But these marginal
safeguards can in no way undo the harm
caused-to a woman driven to prostitution,
if she continues to be viewed as a criminal
under the Act.
V
Indecent Representation of
Women
11986)
The bill against indecent representation of
women was introduced in the Rajya Sabha
in August 1986 by Margaret Alva, supposed-
ly in response to the demand raised by the
women's movement against derogatory
depiction of women in the media. The act
came into effect from October 1987. The ap-
parent aim of the act is "to prevent the depic-
tion of the figure of a woman in a manner
which is derogatory to women or denigrating
women or which is likely to corrupt public
morality". The act confuses the issue of in-
decent representation of women with morali-
ty by introducing the test of 'anything that
which tends to deprave and corrupt'. The act
also does not specifically state that depic-
ting women in positions of servitude is 'in-
decent representation'. The vagueness of the
definition has left the ground open for its
misuse. It was criticised because of the ex-
cessive powers it conferred on the state. The
act and the events leading up to its enact-
ment raise many questions: (1) whether the
campaign itself confused the issue of
obscenity and a prudish concept of morali-
,ty with indecent representation of women;
(2) whether there was any provision within
the existing statute which could have effec-
tively dealt with the issue; and lastly (3) how
will the courts interpret 'indecent rEpresen-
tation of women' and whose interests will
be served by the act.
The answer to the first question is in-
trospective in nature. The women's groups
have mainly agitated against films and
advertisements which showed women in the
nude or sexually suggestive poses. This rein-
forced the notion that anything sexual is
obscene and that respect for women is
equivalent to treating them as sexless.40 The
puritanical notion of women as sexless be-
ings did not in any way help to liberate or
empower women. liken to its logical end,
it leads to women's segregation, curiails
women's movement and manner of dressing,
reinforces the concept of women's chastity
and purity and compartmentalises women
further as 'good' and 'bad' It subscribes to
and strengthens the patriarchal, reactionary
and fundamentalist notions regarding
women and their sexuality..
Such a focus would adversely affect the
crucial work in the area of sex education
which is essential to empower women, par-
ticularly young girls. Such education would
help women gain a scientific and feminist
consciousness about their bodies. and may
also lead women to explore their sexuality
beyond the confines and dictates of hetero-
sexual and subordinate relationship within
a traditional and arranged marriage. Under
the new act, such educative material can be
termed as "that which depraves and corrupts
public morality'" Conversely, the equation
of indecency with nudity and sex allowed all
other portrayals of women to pass off as
'decent'. When women, clad in sari, were
depicted in servile stereotype roles, these im-
ages were not attacked as indecent. So the
campaign did not help to clearly distinguish
between 'indecent representation' and
'obscenity' as defined in the IPC.
This brings us to the second question. Sec-
tion 292 of the Indian Penal Code (IPC)
deals with obscenity. The concept of
obscenity was based, on the nineteenth cen-
tury Victorian notions of prudery which
considered anything concerning sex as dirty
and obscene. Under this section a writing or
representatiorn is considered obscene if it is
"lascivious or appeals to the prurient interest
or if its effect is such that it tends to deprave
or corrupt the persons who are likely to read
or see it". The definition was vague and its
interpretation was governed by subjective
views of individual judges. Over the years
the focus of obscenity shifted from the out-
dated concepts of explicit sex per se to depic-
tion of sex with crime or violence or depic-
tion of women in se.ally humiliating
situations.
In Samaresh Bose vs Amal Mitra,4' the
Supreme Court distinguished between the
vulgar and the obscene and held that what
is vulgar need not necessarily be obscene.
Provisions of this section were wide enough
and vague enough to deal with 'indecent
representation of womeii' The section also
gave wide enough powers to the police to
deal with the issue. But the powers were not
as arbitrary as the ones under the new act.
Even so, it could be misused by people in
power for their own vested interests. The re-
cent case against The Illustrated Weekly is
a concrete example of this misuse.42 One
hopes that it is not a .ointer towards the
future. In the issue dated May 18-24, 1986,
The Illustrated Weekly of India had publish-
ed an article regarding the alleged sexual
aberrations of the chief minister of Orissa,
J B Patnaik. The issue was one of public in-
terest. The obvious remedy was a suit for
damages to protect his reputation, which the
chief minister filed much later. But as a first
response, the Bhubaneshwar police registered
a criminal case under S 292 (IPC).
In a subsequent issue dated August 3-9,
1986, the magazine published the affidavits
which were submitted in court to substan-
tiate their statements in the article. The
copies of this issue were seized and con-
fiscated by the police immediately on their
arrival in Orissa. On behalf of the Weekly
TABLE 2: DISPOSAL OF RAPE CASES IN BOMBAY, 1985-1989
Number of Cases 1985 1986 1987 1988 1989
I Registered 101 102 85 108 108
2 Accused charge sheeted 93 96 76 104 100
3 Accused convicted 8 1 2 1 1
4 Accused acquitted 8 3 1 - 2
5 Accused pending trial 81 91 72 102 95
Source: The Lawyers, Bomb-y, 1990.
TABLE 3: ACQUITrTALS AND CONVICTIONS IN APPEAL COUwRS 1980 1r 1989
Reported tases 1980 81 82 83 84 85 86 87 88 89
I Sessions Court
a) Acquittal 2
-
1 3 1 3
b) Conviction 5 6 4 5 3 2 2 8 6 14
2 High Court
a) Acquittal upheld - - - - 2 - - I I I
b) Acquittal reversed -
- - - - -
1 2 2
c) Acquitted by appeal
court - 2 1 2 1 1 - 1 2 5
d) Conviction upheld 5 4 3 3 2 1 2 7 4 8
e) Sentence reduced/
modified 1 2 1 1 - I 1 3 1 6
Source: The Lawyers, Bombay, February 1990.
Economic and Political Weekly April 25, 1992 WS-29
it was argued that there was nothing obscene
about the publication of the affidavits filed
in court. But the magistrate refused to
release the seized magazines on the ground
that the photographs of semi-nude women
(which were also published in the same issue
but totally unconnected to the issue concer-
ning the chief minister) were obscene, highly
lascivious and appealing to prurient interest
and the sum total of the effect tends to
deprave and corrupt persons who are likely
to read it. The order also mentioned that the
affidavits reproduced were obscene in nature
The magazine continued to be in circulation
in the rest of the country. So the aim was
not to protect the public at large from
depravity and corruption but under the
pretext of preventing 'indecent representa-
tion of women' the aim was to deny the peo-
ple in Orissa their right to information con-
cerning a person holding a high public of-
fice. Within a few days of this incident the
new bill was introduced in Parliament. The
excessive powers vested with the state under
the new act need to be viewed within con-
text particularly when the definition of 'in-
decent representation' is left vague. It gives
power to the en forcement, machinery to enter
any home and seize any material on the
ground that it constitutes 'indecent represen-
tation of women'.
Since its enactment there are hardly any
cases which have been decided by the courts
where the definition regarding 'indecent
representation' has gained clarity. But the
Pati Parmeshwar case decided by the Bom-
bay High Court is an indication of how the
issue of 'indecent representation' is likely to
be interpreted bV our courts.43
The film Pati Parmeshwar was denied cer-
tification under the Cinematograph Act of
1%2 on the ground that it was violative of
guideline 2 (iv-a) which was issued under
Section 5-B of the Cinematograph Act of
1952.44 The producer challenged the refusal
of the censor board to grant the film certi-
fication on the grounds that the guideline
was ultra vires of Article 19(l)(a) of the Con-
stitution (freedom of speech and expres-
sions) and the Cinematograph Act. The film
depicted the leading woman, Rekha, in a
position of servility. It glorified the inhuman
treatment meted out to her by her husband
and in-laws and her quiet acceptance of this
humiliation as an ideal for all Indian wonen.
The four judges of the Bombay High
Court who heard the case expressed four dif-
ferent views and offered four ,different inter-
pretations of the legal issues involved. Justice
Pratap, the single judge who heard the case
opined that the character of Rekha was not
depicted as being servile within the meaning
of guideline 2(iv-a). According to him Rekha
exhibited praiseworthy commitment to sav-
ing her marriage and exemplified the inner
strength and character of Indian woman-
hood. He saw the abuses which Rekha was
forced to withstand as ennobling. He con-
cluded that the film was not violative of
guideline 2(iv-a). He left the issue of con-
stitutionality of the guideline open.
The government appealed against these
judgment. The case was heard by a two-
judge bench consisting of Justices Lentin
and Agarwal who disagreed with each other
on every issue and gave totally contradictory
judgments. Justice Agarwal found the guide-
line to be ultra -vires of -both-Section 5-B
of the Cinematograph Act as well as Article
19(iXa)
of the Constitution. Further he held
that even if the guideline was constitutional,
the depiction of Rekha would not be viola-
tive of it. He held that servility is not igno-
ble but worthy of praise. On the other hand,
Justice Lentin found that guideline 2(iv-a)
falls within t he notion of decency and
morality mentioned in Article 19(2) Qf the
Constitution and 5-B(i) of the Cinemato-
graph Act. He reasoned that the notion of
decency and morality precludes depiction of
women which is denigrating to them. Fur-
thermore, he decided that the guideline was
most certainly violated by the depiction of
Rekha, as the film epitomises ignoble ser-
vility being presented as a praiseworthy
quality. He commented that Rekha was
depicted as servile 'to the point of
repugnancy'.
On account of the difference between the
judges the matter was referred to Justice
Shah who agreed with Justice Lentin that
the guideline is not unconstitutional nor is
it beyond the scope of Section 5-B(1) of the
Cinematograph Act. He reasoned that
ignoble servility itself is indecent because it
is not acceptable under our contemporary
standard of propriety within society. But
strangely, Justice Shah did not find that
Rekha's depiction was ignoble servility. He
agreed with Justice Agarwal that the film
is not violative of the guideline. He reason-
ed that because the film was seen by a
primarily Hindu audience there was nothing
wrong with Rekha's servility. He ordered that
the film be certified.
So out of the four judges who heard the
case three judges held that glorifying servili-
ty of a wife does not amount to 'ignoble ser-
vility' under guideline 2(iv-b). What is even
more disturbing is that the judges also in-
terpreted the secular Constitution of our
country which forbids discrimination on the
ground of religion, along religious lines and
held that different role models apply and
norms of decency and morality apply for
Hindu women and a Hindu audience. The
final outcome of this case is an indication
of how the act will be interpreted by our
courts. With wide powers vested with the
state it leaves no doubt as to whose interest
it will serve. The wrongly formulated
demands have served to strengthen state
power.
VI
Sati
11987)
There were widespread protests following
the public murder of an 18-year old girl,
Roop Kanwar in Deorala, Rajasthan in
September 1987. One of the demands was
for legislation to deal with the' issue. The
government which had become expert in
passing laws on women's issues responded
promptly. This time there was no pretence
of 'expert committees' to look into the
issues. No delaying tactics. Before the
embers of the funeral pyre of Roop Kanwar
cooled down, the law came into effect. The
state law, the Rajasthan Sati (Prevention) Or-
din4nce,' was passed in October 1987. This
was soon followed by a central legislation
in January 1988-the Commission of Sati
(Prevention) Act which was passed through
both bouses with a minimum of debate or
amendment.
"Is the Indian Penal Code dead when it
comes to crimes against women?" Indira
Jaising, the legal expert on women's issues
asked in her editorial of The Lawyers.45 "It
was not lack of a law but the lack of a will
that resulted in its failure to intervene,"
remarked Madhu Kishwar, editor of
Manushi.46 By now at least a certain sec-
tion within the women's movement had
become wary of the government's eagerness
to pass ineffective laws, and were highly
critical of the new law.
The passing of the law has taken the clock
back a century. The first legislation against
sati was promulgated in
lP27
in Bengal; this
was followed by similar legislations in
Madras and Bombay. The act was challeng-
ed in the Privy Council by pro-sati religious
factions on the ground of freedom of reli-
gion. This was countered by the argument
that there could be no freedom or'religion
that could go beyond what was comrpatible
with the paramount claims of humanity and
justice. The argument of a woman's choice,
which was the main premise in the defence
of the Roop Kanwar murder was not put for-
ward then.47
The preamble of the Madras Sati Regula-
tions stated: "Without intending to depart
from one of the most important principles
of the Government in India, that all classes
of the people be secure in the observance of
their religious usages, so long as the system
can be adhered to without violation of para-
mount dictates of justice and humanity,
government has deemed it right to establish
the following rules..."
When the Indian Penal Code was enacted,
a special provision to prevent the commis-
sion of sati was not incorporated. But it was
considered that the sections on murdet,
suicide and abetment to suicide could ade-
quately deal with the problem.
By passing a law, the government has
bestowed a special status to the public
murders of widows and a religious and
cultural context to the issue. The act con-
cedes that sati constitutes a special offence,
distinct from murder and suicide. Shifting
the onus of proving the offence on the' ac-
cused vests further arbitrary powers with the
statwwhich will be used not to prevent the
commission of sati but to curb civil rights
of people in general.
Most of the people who were arrested
after the incident were mere bystanders.
Under the new act the onus of proving in-
nocence will be on them. This violates one
of the basic premise of criminal juris-
prudence that the accused is innocent till
proved guilty. While conceding that it might
be necessary in the interest of justice to
depart from this principle in crimes of a
private nature like rape and wife murder, it
was totally unwarranted in the case of sati
where-the crime is committed publicly. At
a time when most countries are considering
abolition of the death sentence as it has pro-
ved futile as a way of reducing the crime rate,
it is ironical that under the pretext of pro-
tecting women's rights, we are introducing
it for newer categories of offences. The final
irony of the act is that in its zeal to protect
the women's rights, the act stipulates punish-
ment to the victim. A woman who attempts
sati is to be imprisoned for one to five years
and fined of Rs 5,000 to Rs 20,000.47
VII
Sex Determination Tests
11988k
On May 10, 1988, the government of
Maharashtra brought into force the Maha-
rashtra Regulation of Use of Pre-Natal
Diagnostic Techniques Act, 1988. This
moment which ought to have been one of
jubilation turned out to be a moment of
doubt and misgivings. Amniocentesis, a
technique through which the sex of an un-
born child can be determined, was originally
dis'covered for the detection of genetic ab-
normalities. But in India where being born
female Itself is treated as a deformity, the
tests were widely used for sex determination
with the specific intention of aborting the
female foetus. The abortions which had to
be carried out in the second trimester of
pregnancy were extremely dangerous to a
woman's health. The issue had hit the head-
lines when a male foetus whose father hap-
pened to be an influential government of-
ficial was erroneously aborted.A
The ban on misuse of the technology in
government institutions had led to its
privatisation and commercialisation. Sex
determination clinics mushroomed all over
the country. Unscrupulous doctors were
using the technology to cash in on the
societal abhorrence towards females to make
a quick buck. The wide popularity of these
tests was a stark reflection of the hatred
towards females by members of their own
family.
In the last century this phenomenon caus-
ed the colonial rulers to overstep their policy
of non-interference in matters concerning
religious practices and enact two laws. One
preventing the gruesome public murders of
widows and the second, banning of an even
more gruesome, practice-the private killing
of female babies by their own parents.
The instant popularity of sex determina-
tion (sd) tests indicated that this hatred per-
sists. Progress and development have ap-
parently not contributed towards changing
the basic attitude. But with the aid of science
and technology it had acquired sophisticated
forms and precipitated the killings from the
born to the unborn stage. The tests also rais-
ed the issue of neutrality of science and
technology and the indifference of the
medical community to issues of social
justice.
The campaign was initiated by concerned
individuals from women's groups, civil liber-
ty, health and people's science movements.
In October 1984, a broad coalition, the
Forum Against Sex Determination and Sex
Preselection (FASDSP) was set up to carry
on a sustained campaign against sex deter-
mination. The FASDSP worked on many
levels-conducting research studies and
surveys, disseminating information through
seminars, workshops and articles in the
popular press and working towards a new
legislation. Innovative ways of creating
public opinion were used. Morchas in which
-prominent personalities marched with their
daughters; children's day programmes which
focused on the girl child and a month long
'Nari Jeevan Sangharsh Yatra' all over the
city to create public awareness, etc. The camn-
paign gained momentum and the issue
received wide media publicity and sympathy
and support from a wide section of people.
This campaign stands out against others
mentioned earlier, not only for its systematic
follow-up of the issue but also for constant
introspection. It is only through this process
the layers of complexities could be disen-
tangled and a clear perspective emerge
within which the demand for regulating the
tests could be firmly placed.
The issues which had to be confronted
were not so simple and straightforward as
they had initially seemed. In the first phase
of the movement, the focus was on the
woman's health and the dangers of abortion
in the second trimester of pregnancy;
chances of wrong diagnosis and abortion of
male foetus and of unscrupulous doctors
routinely informing the gullible parents that
the foetus is female, etc. But while the
campaign was gaining momentum, the tech.
nology was also gaining ground and it
became possible to detect the sex of the
foetus in the first trimester. So the argument
of unsafe abortion became baseless. There
was also the possibility of even more
sophisticated technology through which sex
could be pre-selected at the time of concep-
tion. So the argument of repeated pregnan-
cies affecting the health of the woman or
even diagnostic errors would not hold. The
basic issue, that of protecting the female
species, had to be addressed directly without
any frills and cover-ups. This too was not
easy. The arguments supporting an indi-
vidual female foetus's right to life were too
close to the conservative pro-life argument
against abortion which was one of the
crucial issues facing the women's movement
in the west. If extended further, it would
jeopardise women's right to safe abortion.
Once again extreme caution had to be exer-
cised to formulate the framework.
In India abortion was an offence under
the IPC until 1971. But the Medical Termina-
tion of Pregnancy (MTP) Act, 1971 laid
down liberal grounds through which women
obtained the right to safe, scientific and legal
abortions. The purpose of the act was not
so much for women's rights as population
control. The MTP Act laid down certain
selective grounds under which the pregnancy
could be medically terminated. Grounds like,
'failure of contraceptives' were wide enough
for any woman to avail of this facility. While
protecting the female foetus it was impor-
tant to ensure that the provisions of the
MTP Act are not narrowed down, which
would curb the crucial right of every woman
to have a safe abortion.49
It was extremely difficult to establish a
nexus between sex determination and selec-
tive abortions. At times they were not even
conducted at the same clinic. Women could
go to a private clinic for the test and then
approach a government hospital for a free-
abortion. So the issue had to be dealt with
at the level of the sex determination test and
not at the level of constraining a woman's
right to abortion. A petition was filed by a
women's group in Bombay, the Mahila
Dakshata Samiti, in the high court after the
death of a woman who had undergone the
test in September 1986.50 The news received
a mixed response from the campaign group
as it was based on a dangerous ground that
sex determination tests are violative of Ar-
ticle 21 of the Constitution-the right to life,
the same argument used by pro-life groups.
A private bill introduced by Sharad Dighe,
MP from Bombay to amend the MTP Act
to prevent sd tests was also opposed. The
only logic on which all the arguments could
be based was that sex determination leading
to selective abortions amounts to sex
discrimination and is violative of Articles 14
and 15 of the Constitution-equality before
law and prohibition of discrimination on the
grounds of sex.
The question of a woman's choice also
had to be debated in depth. If a woman has
a right to limit the number of children, ex-
tending the same logic further, does she not
have a right to have a child of a particular
sex? This was the argument widely used by
those with vested interests in support of the
tests. The doctors claimed that they were do-
ing -a service to women by aborting their
female children because in our society to be
a woman is bad enough but to be a mother
of girls is the worst humiliation.
Other arguments in favour of the tests
which received publicity in the media were
(1) as per the theory of supply and demand
if females become scarce in society their
value and status would be enhanced; and
(2) since a female child would be subjected
to great hardships after birth, getting rid of
the child before her birth would save her
from greater humiliation. The arguments
were based on the premise that subordina-
tion of women in our society is an immu-
table and irreversible state which had to be
accepted and not countered. While the group
was trying to change soc-ial attitudes through
various means of propaganda, the demand
for a legislation was raised mainly to pre-
WS-31
vent the medical community from misusing
the technology for its own vested interests.
In 1986, the group succeeded in getting
a private members' bill introduced in the
state legislative assembly by Mrinal Gore
of Janata Party, Shyam Wankhede, and
Sharayu Thakar of Congress(I). The govern-
ment was now forced to respond. A survey
of sex determination clinics was commis-
sioned. This helped the activists obtain of-
ficial statistics to support their contention
about the widespread misuse of the tests in
the city. The government also set up an ex-
pert committee before the bill could come
up for discussion. Representatives of
FASDSP were invited to be on the commit-
tee But a doctor who vociferously defended
the tests and who was running a sd clinic
was also invited. So the motive of the
government became suspect. Anyway it was
decided that it would be advisable to
monitor its functioning from within rather
than boycotting it totally. In any case the
option to resign could be exercised at any
point of time.
The report of the committee submitted in
May 1987 gave the campaign a boost as it
had included all its demands in its recom-
mendations. The main recommendations
were as follows: (i) The misuse of pre natal
diagnostic techniques for sd should be total-
ly banned, (ii) This use should be restricted
only to government institutions, (iii) These
techniques should be used for the detection
of congenital abnormalities only, (iv) The
state government should enact a special law
for this purpose, (v) The state government
should pressurise the central government to
enact a similar legislation at the national
level, (vi) The MTP Act, if required, may be
amended so as to include in it a clause ex-
plicitly stating sex-selective abortion as a
legal offence (except where therapeutically
justified), and (vii) The law can succeed only
if it is supported by a well-planned long-term
movement for health education and con-
sciousness raising. The government should
take suitable steps to that effect.
The report of the expert committee was
nee rleased nor discussed. It was apparent
that the government was buying time,
waiting for the tempo of the campaign to
slacken. On December 31, 1987, out of the
blue, almost as a New Year gift, the chief
minister announced that the cabinet had ac-
cepted all the recommendations of the com-
mittee. The campaign group was pleasantly
surprised. The FASDSP team was very
happy but cautiously responded that the real
test would lie in its implementation. In April
1988 the government suddenly announced
that the- bill would be discussed in the
assembly on the following day. With dif-
ficulty a copy of the bill could be procured.
The team was shocked to find that all the
objectionable clauses had been incorporated:
(I) The bill provided for granting licences
to private centres/laboratories while the ex-
pert committee report and even the chief
minister's announcement had categorically
stated that licences would be given only to
government centres/laboratories.
(2) The bill provided for punishment to
the 'woman undergoing the test. Although
the clause said that such a woman would
normally be assumed to be innocent, it pro-
vided for the punishment if it was proved
that she went for the test 'on her own'. Under
the present social context there was every
possibility of the in-laws getting away scot-
free and the woman being punished for
undergoing the test.
(3) The right tQ move the court rested only
with the official organs of the implementing
machinery i e, the state appropriate authori-
ty and the state and local vigilance commit-
tees (SAA, SVC and LVC). But no time
limit was set for their constitution, without
which there could be no imWlementation.
(4) In the conditions listed for undergoing
the test the crucial words 'potentially
teratogenic' were dropped which meant that
the woman could undergo the test even for
a minor infection or after consumption of
any routine drug.
The group was in a dilemma. If the bill
was passed in the present form it would
represent a purely symbolic victory for the
campaign. Opposing the bill would seal the
fate of the campaign once and for all. Refer-
ring it to another expert committee would
mean indefinite postponement. So finally it
was decided to suggest some amendments.
Only two amendments were accepted-the
words 'potentially teratogenic' were added
to narrow the scope of misuse of sd and the
clause giving blanket powers to government
to exempt institutions from the application
of the regulation was dropped.
For the success of the act it was necessary
that a few cases be lodged against the
violators of the law within the first few
months and that the legaf action be high-
lighted in the media. But it was not possi-
ble to move the court as the SAA, SVC and
LVC were not set up till 1989 and the action
could be initiated only through these bodies.
In 1989 when they were finally set up, there
was no public announcement. A list of the
members could be obtained only with dif-
ficulty. None of the FASDSP members were
included. Persons with high standing in the
field of medicine, whose names had been
suggested because of their commitment to
the issue were also not included. Among the
members was a doctor who had been con-
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WS-32 Economic and political Weekly April 25, 1992
ducting the test. Finally t hrough public
pressure she had to resign.
Although limited in scope, the passing of
the act created on optimism for similar cam-
paigns in other states. The number of sd
clinics declined significantly after the act.
The credit for this cannot be attributed to
the new act but to the sustained campaign
preceding it. After the bill was passed the
campaign slackened and it needs to be seen
whether the campaign can sustain itself to
monitor the effective implementation of the
act.
In April 1984, the government of India
announced the formation of an expert dcm-
mittee to draft a central legislation. After
prolonged discussions by active members a
draft legislation was finalised and circulated
to all state governments. In spite of alert in-
terventions, all the objectionable clauses of
the Maharashtra Act were also included in
the central bill. Before this bill could be
presented to the Parliament, t he government
collapsed and so it remains on the shelf col-
lecting dust until a new government thinks
it important enough to introduce in Parlia-
ment or alternatively, if sufficient public
pressure is generated, and the government
is forced to introduce it. But this kind of
tempo is difficult to sustain indefinitely.
VIII
Conclusions
While discussing the enactments against
violehce on women during the decade it is
also important to mention briefly certain
developments in the other laws concerning
women, particularly within marriage. The
Muslim Women (Protection of Rights on
Divorce) Act passed in 1986, denied Muslim
women the right to maintenance after
divorce. The Christian women's demand for
a reform in their antiquated, discriminatory
and sexist personal laws was not conceded.
The issue of a secular non-sexist civil code
has been consistently pushed under the
carpet and even when it does come up, in
the present political context, it may well be
more anti-minority than pro-women.
A Bombay High Court judgment held
that a woman has no right to enter her
matrimonial home. The demand for a 25 per
cent job reservation for women was not con-
ceded. No viable alternatives for women to
opt out of marriage in terms of jobs and
housing have evolved. Wherever the econo-
mic or political power base would have been
upset, the government has not passed any
laws. The laws which have been given for the
asking and which confer excessive powers to
the state need serious requestioning. Perhaps
the movement has been short-sighted in rais-
ing such demands in the first place and fall-
ing right into the manipulative schemes of
the government. The women's movement is
too insignificant at this moment to monitor
the implementation of these laws and pre-
vent their misuse. The power acquired by the
govecrnment in the name of protecting
womuen becomes all the more frightening in
the present political context of rising com-
munalism and criminalisation of the
political process.
Notes
I Tukaram and Another vs State of
Maharashtra 1979 AIR 185 SC.
2 Flavia Agnes (1990), 'Fighting Rape-Has
Amending the Law Helped?' The Lawyers
(February), p 4.
3 Criminal Law (Amendment) Act 1983 (Ap-
pendix 1).
4 Premchand and Another vs State of
Haryana, Criminal Law Journal (1989),
p 1246 SC.
5 State of Haryana vs Premchand land
Another, Criminal Law Journal (1990).
6 Rao Harnarain Singh vs State of Punjab,
Criminal Law Journal (1958), p 563.
7 Krishnalal vs State of Haryana, AIR 1980
SC, p 926.
8 Rafiq vs State of Uttar Pradesh, Criminal
Law Journal (1980), p 1344.
9 Harpal Singh and Another vs Himachal
Pradesh, Criminal Law Journal (1981), p I
SC.
10 Bijoy Kumar Mohapatra and Others vs
State of Orissa, Criminal Law Journal
(1982), p 2161.
11 Bharwada, Bhogibhai Hirjibhai vs State of
Gujarat, Criminal Law Journal (1983),
p 1096 SC.
12 Jayanti Rani Panda vs State of West Bengal,
13 Mohammed Habib vs State, Criminal Law
Journal (1989), p 137.
14 Ravindra Dinkar vs State of Maharashtra,
15 Bhai Singh vs State of Haryana Criminal
Law Journal (1984), p 786.
16 Vinod Kumar and Another vs State of
Madhya Pradesh, Criminal Law Journal
(1987), p 1541.
17 Babu vs State of Rajasthan, Criminal Law
Journal (1984), p 74.
18 Flavia Agnes (1990), 'Journey to Justice-
Procedures to be Followed in a Rape Trial',
Majlis, p 67.
19 L V Jadhav vs Shankar Rao Aba Saheb
Pawar (1983), 4 SCC 231.
20 Gayatri Singh (1986), 'Dowry Prohibition
Law', The Lawyers, Grey page 1.
21 Madhu Kishwar (1985), 'Dowry to Ensure
Her Happiness or to Disinherit Her,
Manushi, No 31 (November-December),
p 31.
22 Madhu Kishwar (1988), 'Rethinking Dowry
Boycott', Manushi, No 48 (September-
October), p 10.
23 Madhu Kishwar and Ruth Vanita (1985),
'Can Police Reform Husbands?' Manushi,
No 31 (November-December), p 38.
24 Flavia Agnes (1987), 'There's More to
Violence than Dowry and Death', Indian
Express, May 24.
25 Madhuri Mukund Chitnis vs Mukund
Markand Chitnis-Bombay High Court
(unreported) reported in Indian Express,
dated March 20, 1991.
26 Ashok Kumar vs State of Punjab 1987,
Criminal Law Journal, p 412.
27 Padmavati vs State of MP 1987, Criminal
Law Journal, p 1573.
28 Smt Sarla Prabhakar Wagmare vs State of
Maharashtra 1990 Criminal Law Journal,
p 407.
29 Sharad Sarda vs State of Maharashtra,
Criminal Law Journal, 1986.
30 State of Maharashtra vs Ashok Chhotelal
Shukla (unreported)-Bombay High Court
Judgment dated January 14, 1986, 1986 in
confirmation case No 4 of 1986.
31 Dilipkumar Tarachand Gandhi and Another
vs State of Maharashtra-Bombay High
Court Judgment dated March 6, 1991 in
Criminal Appeal No 51 of 1991.
32 Navneet Sethi and K Anand (1988), 'A Life
of Humiliation, Manushi, No 45 (March-
April), p 19.
33 Gayatri Singh (1986), 'Crime and
Punishment-The Thakkar Sisters: The
Lawyers (May), p 15.
'Legalised Murder is No Solution-High
Court Recommendation of Public Hang-
ing', Man ushi, No 31 (November-
December), p 38.
35 'Acquitted for Killing in Self Defence, The
Lawyers, December 1987, p 21.
36 Nilima Dutta (1986), 'SITA and Prostitu-
tion, The Lawyers.
37 'Madhushree Dutta Case', The Afternoon
Despatch and Courier, February 28, 1991.
38 AIR, 1966, p 312.
39 Nilima Dutta (1986), 'SIT (Amendment)
Bill, 1986: The Lawyers (September), p 8.
40 Madhu Kishwar and Ruth Vanita (1986)
'Using Women as a Pretext for Repression'
Manushi, No 37, (November-December),
p 2.
41 AIR, 1986, SC p 967.
42 Indira Jaising (1986), 'Obscenity-The Use
and Abuse of the Law, The Lawyers
(October), p 4.
43 Indira Baising (1988), 'The Ignoble Servility
of Pati Parmeshwar', The Lawyers,
(D?cember), p 6.
44 Section 5-B(l) of Cinematograph Act 1952:
"A film shall not be certified under this Act
if, in the opinion of the authority compe-
tent to grant the certiticate, the tilm or any
part of it is against the interests of the
sovereignty and integrity of India, the
security of the State, friendly relations with
foreign states, public order, decency or
morality or involves defamation or con-
tempt of Court or is likely to indicate the
commission of any offence'.
Guideline 2 (iv-a) provides that: "visuals or
words depicting women in ignoble servility
to man or glorifying such servility as a
praiseworthy quality in women are not
represented".
45 Indira Jaising (1987), 'The Murder of Roop
Kanwar, The Lawyers (October), p 3.
'The Burning of Roop Kanwar' Manushi,
No 4243, (September-December), p 15.
47 Maja Daruwala (1988), 'Central Sati Act-
An Analysis'. The Lawyers (January), p 17.
48 R P Ravindra (1990), 'Campaign Against
Sex Determination Test: Study of Action,
Women's Studies Unit, TISS.
49 Amar Jesani (1988), 'Hands off the MTP
Act' The Lawyers (October), p 22.
50 Deepti Gopinath (1986), 'Amniocentesis
Petition Adm itted, The Lawyers (October),,
p 14.
Economic and Political Weekly April 25,
1992 WS-33

Flavia Agnes, Reviewing A Decade of Failed Legislation

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Beviev oJ a Becade oJ LegisIalion, 1980-89

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