Saturday, February 2, 2013

Marital rape law possible….but only after police reforms

The UPA government has enacted an ordinance putting into force most of Justice Verma’s recommendations on amending rape laws and going farther on a few issues. The rape laws have been made stricter, in line with what people wanted and the punishment enhanced. There is also now a provision for death in extreme cases. Strict laws is what people want, but with an incompetent, corrupt, feudal and forensically dinosaurial police system in place, such strict laws can be abused innocent people harassed. Which is why it is impossible to have a law recognizing marital rape in India till the time we can make the police a lot more sophisticated.

Take our experience with Sec 498(A) of the Indian Penal Code. In 1983, the government added this section to protect women from harassment by their husbands and in-laws on dowry related matters. The act made such complaints cognizable (accused can be arrested without a warrant), non-compoundable (the woman cannot withdraw her complaint once filed) and non-bailable (bail has to be taken only from court). The act gave a huge amount of power to women to protect themselves from rapacious husbands and in-laws. The act also put trust in the police and judicial systems – to ensure that false complaints were quickly sifted out, and that good honest people were not harassed. At that time, it was perhaps difficult for anyone to mention the possible abuse of such a powerful law; he would have been considered to be one supporting dowry. Today we know for a fact that 498(A) has been hugely abused. A bench of the Supreme Court recently instructed the government to amend the act. As per court records, 85% of the cases registered under this act were proven to be false. It led the Supreme Court to call the matter “legal terrorism”. Thousands of innocent men suffered hugely. They were forced to spend years in jail. Clearly, ham handed police work had led to decent families being accused; and their images being permanently tarnished.

It is in this context that we should look at the concept of marital rapes. Agreed, marital rape is an issue that has to be addressed. The reasons for the same are all very obvious: wives have no voice in their homes; they dare not protest for fear of violence and so on. But equally, there is a real risk that wives may abuse the provisions of this law and harass their husbands. No one will know the truth – and no victim will ever get justice – if the police work remains as it is today. Decent men will be in jails; and battered women will not get justice. It’s a tricky situation. Not recognizing marital rape makes India a regressive country – more than a hundred countries already have similar laws. But recognizing it, with the kind of investigative mechanism we have in place, is equally dangerous.

We know how our cops are. They are happy to take bribes to stop an FIR from getting filed; or for filing a wrong FIR against someone; or for simply harassing people for crimes not committed by them. Our newspapers are full of stories of police abuse, and of hamhanded investigations. The courts have ticked off the police for incompetency and worse. In the Aarushi murder case, the cops allowed media people and neighbors to trample over the crime scene, compromising so much evidence in the process. We know that our cops can plant evidence against innocent people if the monetary incentive to them is good enough. We know that the rich and the famous often bribe their way out of difficult situations. Knowing all this, how can we give so much power to the police on a subject as difficult as marital rape? 

I don’t think we can recognize marital rape till we have police reforms. If 85% of those accused under 498(A) were innocent, then it’s unfair to enact another act which could be similarly abused. It’s too sophisticated a concept for a feudal paternalistic society and an even more feudal and paternalistic police force. We must first implement police reforms, then enact laws on marital rape. Till police reforms take place, we must live with the opprobrium of not having laws on par with the western world. But then, when we compare our laws with the West, we should not forget the link between strict laws and efficient investigative capabilities. 

The real truth is that we are simply not ready to have laws on marital rape. We simply don’t have the capability to investigate marital rape cases. Rather than making lives better for women, we may end up making life miserable for many more men. If anything, the debate must shift towards police reforms….

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