The recent Supreme Court (SC) judgement in response to a public interest litigation (PIL) seeking a wider definition of rape and sexual abuse, has brought some relief but also disappointment to groups working on the issue.
Sakshi, a women's resource centre working with victims of sexual abuse, filed the PIL in 1997 after the Delhi High Court declared that the case of an eight-year-old child, penetrated in three orifices by her father, could not be considered either as rape or an `unnatural offence'.
The PIL questioned the legal procedures during a trial and urged the apex court to alter the definition of sexual intercourse [with reference to section 375 of the Indian Penal Code (IPC)]. During hearings of sexual abuse and rape cases, insensitive questions like 'Were you ashamed to take off your clothes in front of your grandfather?' and 'Did you like what your uncle did to you?' deter victims of abuse from pursuing their cases. Many don't file a complaint against their perpetrators out of fear that they would have to relive the trauma in court.
The May 26 (2004) judgement sought to reduce the trauma of the victim (of rape or sexual abuse) when it directed that the latter cannot be forced to answer insensitive and crude questions during court trials. From now on, defence lawyers will have to give their questions in writing to the presiding officer, who will, if necessary, temper the language to ensure the questions do not cause embarrassment or humiliation.
The SC admits that the objective of the questions (asked by defence lawyers) is that "out of a feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused". The SC also accepted that the mere sight of the perpetrator induces fear in the mind of the victim, who is then unable to relate the details of the incident.
Further, the SC has now directed that a screen (or something similar) may be used so that the victim does not have to undergo the trauma of seeing the perpetrator. And that victims should be allowed sufficient breaks as and when required while testifying during the trial.
"Yes, one could say that this is a landmark judgement in terms of it facilitating victims to give evidence in court and enhancing incentives to report the incident. They now don't have to fear being humiliated in court," says Karuna Nandy, a lawyer who also worked on the Sakshi case.
However, Naina Kapur, Director of Sakshi, is very disappointed. "What is the point of (introducing) procedural changes if the abuse doesn't fall within the definition of rape or outrage of modesty or 'unnatural acts' as laid down by our law? I think this was a chance to really get justice for victims of sexual abuse by widening the definition of sexual abuse. But the judge (G P Mathur) has missed the opportunity and, by letting the law remain as it is, has rendered the whole exercise purposeless," she says.
She contends that the main plea of their PIL had been to get a broader definition of sexual intercourse, to mean all kinds of sexual penetration on any type of orifice of the body and not the intercourse understood in the traditional sense. So that sexual abuse other than what is defined as rape could also be included.
"Our PIL was based on the case of an eight-year-old girl who had been abused by her father. She had been violated mentally and physically. But rape laws only recognize sexual crimes involving penile penetration. Here the violation was oral, anal and involved finger penetration. This is why we wanted a broader definition and not a rigid technical definition. If the judge wanted, he could have done this. We gave him several cases from South African and Canadian courts, the International Tribunal where the law has been broadened to include all kinds of sexual abuse," Kapur says.
By not legislating a broader definition, the SC has reflected how far removed it is from reality, contends Raka Sinha, General Secretary of Angaja Foundation, an organization working with victims of child sexual abuse and rape. "While I am happy with the procedural changes like the screen, I am deeply disappointed by the judgement," she says.
Sinha is concerned that their PIL - filed in SC in May 2004 - also asking for widening of the definition of sexual abuse in addition to certain procedural changes, may not be taken up at all now. "I don't know whether our plea for a separate law on child sexual abuse will be considered now. We will just have to wait until the hearing (slated to come up in July)," says Sinha.
Ironically, by its own admission, the court noted that child sexual abuse is on the rise. Yet, it failed to clearly define sexual abuse and stated: "An exercise to alter the definition of rape...by a process of judicial interpretation is bound to result in a good deal of chaos and confusion and will not be in the interest of society at large..."
Child abuse cases are still dealt with under the laws on rape (Section 375 of the IPC), sexual molestation (Section 354) and sodomy (Section 377). According to Kapur, the narrow understanding and application of rape under section 375/376 IPC only to the cases of penile/vaginal penetration runs contrary to the understanding of rape as an intent to humiliate, violate and degrade a woman or child sexually. Kapur says the law has to understand the sense of violation victims of sexual abuse experience.
As there is no clear definition of sexual abuse, victims are largely at the mercy of legal discretion, says Anuja Gupta of RAHI (Recovering and Healing from Incest), a support centre for women surviving incest. "Sexual abuse is something which can no longer be denied and this judgement will help victims open up in court. But I don't know how far it will act as an impediment," says Gupta.
Despite conceding in his judgement that "an appropriate legislation in this regard is urgently required", the judge "hopes and trusts that the Parliament will give it serious attention and make appropriate legislation".
However, by leaving the responsibility of bringing legislation against child abuse to Parliament, the court has shied away from its responsibility to ensure the safety of every child in the country.