Sharp differences within the government and the anxiety shown by some ministers over some harsh provisions, forced the union cabinet on Thursday to defer the approval to the criminal law amendment bill. The proposed legislation was scheduled to be brought before Parliament next week for replacing the Ordinance issued on February 3 to protect women in the wake of a gang-rape of a medico in the national capital in December.
The concerned ministries of law, women and child and home affairs were torn on at least three issues: lowering the consensual sex age from 18 to 14 years, replacing the words "sexual assault" inserted in the ordinance for gender neutrality with the word "rape" and bringing voyeurism in the ambit of serious crimes against women. Sensing an open confrontation between the ministries, prime minister Manmohan Singh dropped the bill from the cabinet agenda and asked both the ministries to arrive at a consensus as soon as possible.
The law ministry though approving the cabinet note prepared by the home ministry had affixed a “note of caution” against several provisions in the draft bill. The ministry of women and child development also lodged protest for the home ministry ignoring its suggestions.
Information and broadcasting minister Manish Tewari expressed concern over the provision criminalising voyeurism as recommended by a three-member jurist panel headed by former Chief Justice of India JS Verma. According to sources, Tewari maintained that the provision will be misused and open up a Pandora box of the male harassment.
On the lowering the age of consent for sex to 16 years instead of 18 fixed through a law only last year, women and child minister Krishna Tirath believed it was an open invitation to abuse children. In the draft bill submitted to the cabinet for consideration, the Home Ministry had suggested that this consensual sex age be lowered to 16 to prohibit the sexual intercourse under the age to be covered as rape. But the law ministry had another plans. In its note to the cabinet, it had suggested to lower age further to 14 since girls become mature by that age to know difference between the rape and consented sex.
The law ministry note also objected to the home ministry replacing the world “sexual assault” with "rape" under the pressure of women organisations . The word"sexual assault" included in the ordinance covers all kinds of sex crimes not only against women but also against men by men or by women. The law ministry has pointed out a case pending in the Supreme Court on the sodomy as a crime under the Indian law and the gay movement gathering support in the country.
Some ministers endorsed the view that lowering the age of consent will stop the criminalisation of teen sex and prevent the police and parents abusing the law to harass young couples who decide to marry against their wishes.
As per the regulations, the ordinance shall cease to operate "at the expiration of six weeks from the re-assembly of Parliament" and as such the government has time only up to April 4 to adopt the law.
Further, parliament is also going into a recess for a month from March 22, therefore making it far more necessary for the government to seek parliament nod to the bill before the recess. The plan, however, seems having gone awry for the time being. Cabinet sources, however, told DNA the ministries have been asked to sit in a day or two to finalise the draft to enable the cabinet to approve it at its next meeting.
Some political parties like the Samajwadi Party (SP) and the Bahujan Samaj Party (BSP) are already up against rushing the bill in parliament without facing the scrutiny of the standing committee, as done with all important legislations. The only option before the government may be to re-issue the ordinance, but that can be done only after parliament session concludes on May 10.
Senior BJP leader M Venkaiah Naidu, chairman of the standing committee, believes there was no need to keep the bill hanging by referring it to the committee in view of the present atmosphere and urgency to provide maximum protection to women. He has already tabled committee's report on the earlier Criminal Laws (Amendment) bill, 2012 in the Rajya Sabha last Friday. His report also covers issues of the sexual assaults. The proposed bill is also supposed to incorporate the pending 2012 bill with changes as suggested by the standing committee, getting a go-ahead by it to the ordinance provision of death penalty if the rape leads to death of the victim or leaves her in a vegetative state or if the accused commits the repeat offence of the rape.
Immediately after the cabinet meeting, opposition parties jumped over the government dithering on the anti-rape law. Manish Tewari, however, rejected their criticism pointing out that "the fact that we came out with an ordinance shows that we are committed to women safety."
Most of the salient features of the ordinance have been, however, kept in the draft bill, with even some new provisions like one prescribing the life imprisonment for rest of the natural life to a person in authority convicted of the charge of the rape. The person in authority has been described as a police officer, a doctor or a staffer of a hospital, a jailer or a warden of a remand home. There is, however, no mention of the army personnel in the category who have been enjoying protection under the Armed Forces (Special Powers) Act, 1958.
While the ordinance said the statement of the victim may be videographed, the draft bill makes the provision mandatory. It also makes the presence of a woman officer - whether police or civil — to be present when the statement of the victim is being recorded. On the issue of voyeurism, the Law Ministry has opposed a provision that if someone takes pictures of a woman with her permission, it would not amount to an offence. "We have asked the home ministry to remove the exception as a woman will find it difficult to prove that she had agreed to such a thing," an official said.