Is going to war with Pakistan the solution to infiltration?

Gurdaspur, Pathankot, and now Uri: Yet another Indian Army Base was ambushed again. And yet again, for over two days since the heavily armed militants stormed a battalion headquarters of the Indian Army in north Kashmir's Uri, killing at least 17 soldiers and injuring 10 other personnel, all Indians including some attention seeking politicians are baying for Pakistan's blood.

The Hindustan Times highlights that the incident was the single deadliest attack on the Indian Army in at least 26 years. As expected, given the proximity of the attack to the Line of Control (LoC), the line demarcating India-administered and Pakistan-administered Kashmir, and the sophistication of the fidayeen (suicide squad) attackers, Indian leaders were swift in blaming Pakistan. Basis a primary research, the Indian authorities believe that Pakistan-based Jaish-e-Mohammed (JeM), the same group responsible for the strike earlier this year on the Pathankot Air Force base in Punjab, carried out the Uri strike. The Pathankot attack, along with the July 2015 attack on a police station in Gurdaspur in Punjab, highlights a growing frequency of high-profile fidayeen attacks against hard targets. All three attacks have come in relatively quick succession after a relative lull in alleged Pakistan-sponsored attacks in India after the 2008 Mumbai attack, which, by contrast, involved a large-scale coordinated strike against softer civilian targets. It is also believed that the time and place of the Uri attack is of special significance since the Indian Army is already facing criticism for its heavy-handed tactics in suppressing protesters in Kashmir following the killing of Burhan Wani, a Hizbul Mujahideen militant, earlier this summer. It is said that this attack is timed by Pakistan to move the international focus to the Kashmir-issue.

But, all this is for political analysts to probe. What I am appalled by is the fact that the entire nation is screaming for a war. So much so that you cannot not tell anyone that this issue should be looked at more objectively. There was this article in the Hindustan Times which mentioned which state three of our slain soldiers belonged to. While most of the people commenting on the story were asking India to open a war against Pakistan and take not just Kashmir back but also Pakistan over, I had simply commented that mentioning the regions or religions plays to divide people and that what is important is that all the soldiers who lost their lives were brave and courageous. I did not mention "war" or "Pakistan" and was therefore called out as a "bloody liberal Hindu". I think it is insane - the whole reaction to the situation is insane.

I want to understand how waging a war against Pakistan will solve our internal problem of failure of our national intelligence services to identify a security breach. Because that is exactly what this was - a security breach and a mega failure to identify the same. Be it Gurdaspur or Pathankot or Uri, in all cases a bunch of fidayeens not only cross border but enter heavily armed and supposedly secure areas and kill our very well trained soldiers. And what's more abominable is that every successive attack in this series has been deadlier and more ghastly than the previous one. This only means that they are not only growing more confident by the day but they also realise that the Indian Intelligence system is probably not equipped even now to identify the contravention. This is what we need to counter; this is what we need to work out; and this is what we need to tackle right now before the next big lapse and loss of our brave lives. No Sirs and Ma'ams, we don't need a war against Pakistan. We need a drastic and expeditious improvement in our intelligence networks. Let's put our time, effort, money and focus at the right place - at the root cause. The war against Pakistan would only lead to more problems, political, social and financial. Even if we assume we go ahead and accomplish what all Indians are shouting, we take Kashmir back and even add Pakistan to our territory; we would only be bringing in terrorists from across the borders to within are own and that's not a very smart thing to do seriously.

FAQs On Law, Sexual Violence And Section 375 & 376 Of The Indian Penal Code

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In a recent engagement with people in the comments section of the Facebook page of Feminism in India, it dawned on me that while sexual violence and advocacy for the survivors is a concern for most readers, many readers have questions about legal provisions in India relating to sexual violence. Questions that popped up, included fundamentals like: Exactly what is rape? Are rape laws gender neutral? Does rape require penetration?

Laws are constantly evolving and the criminal justice system often witnesses the complex interplay of many laws, in any given case. Lawyers need to keep themselves updated and study the facts of a case before coming to a legal opinion.

However, for lawyers and non-lawyers alike, who want to have conversations about sexual violence, the law on sexual violence is a very important component. To enable meaningful conversations on the law, everyone, must have access to information on fundamental questions. To that end, this article is a modest attempt at some sort of ‘F.A.Q’, on laws relating to sexual violence in India.  Given the fact that this is a large topic, the posts will be divided up in parts.

This part, will focus on ‘Rape’ as defined in Section 375 of the Indian Penal Code (Sometimes, as and when relevant it will touch upon some other laws, other Sections, and particularly the POCSO Act).

FAQ 1: Who can commit rape, under the purview of the IPC?

The language of Section 375 of IPC is clear. It begins with ‘A man is said to commit rape if…’

In so prefacing the definition of Section 375, it is clear that in the Scheme of the Indian Penal Code, the perpetrator of rape can only be a man.

However, as far as child victims of sexual abuse are concerned, the Protection of Children from Sexual Offences Act, 2012, is gender neutral. The offence of penetrative sexual assault (defined in Section 3 of the POCSO Act), is materially equivalent to the offence of rape, as defined in the Indian Penal Code. In case of child sexual abuse, both the victim and the perpetrator can be male or female, and it is in this context that female perpetrators are recognized by the law.

FAQ 2: Who can be the victim of rape, in the eyes of the law?

Section 375 of the Indian Penal Code only recognizes women as survivors of rape. The POCSO Act does recognize that any child (irrespective of gender) can be the victim of penetrative sexual assault. However, this leaves out adult male survivors of penetrative sexual assault, who the law does not recognize, as victims of rape.

Adult male survivors of penetrative sexual assault, as a category, are left out of the ambit of Section 375 of the IPC. It is a glimpse into the patriarchal construct of our laws that an adult male survivor of penetrative sexual assault will have to take recourse to Section 377 of the Indian Penal Code, a relic from a rather draconian past that seeks to punish ‘carnal intercourse against the order of nature’ and does not differentiate between consenting adults and non-consenting participants. This creates a tragic legal fiction that deems that ‘men can be sodomized but not raped’.

FAQ 3: What acts are required to constitute the act of rape? Is penetration necessary?

Before 2013, the law did not recognize as ‘rape’ incidents of forced anal penetration, or oral sex. This led to an anomalous legal position where if someone was forced to have anal sexual intercourse, they could only be charged under Section 377 of the IPC, and not for rape. This had a significant impact on the Aruna Shanbaug case, where the perpetrator was never charged under Section 377 IPC, reportedly to save the fiancé of the victim from ‘embarrassment’. The perpetrator was convicted or attempted murder and robbery.

With the Criminal Law Amendment Act of 2013, the ambit of the term rape in the IPC was broadened to include many categories other than ‘penile-vaginal’ penetration. Four categories of actions are recognized as constituting rape, when done without the consent of the woman:

When a man penetrates, to any extent, of themouth, vagina, urtethra or anus of a woman or makes the woman do so with him or anyone else. (The vagina includes the labia majora)	Inserts, to any extent, an object or a body part, not being the penis, into the aforementioned orifices, or makes her do so with him or any other person.
Manipulates any part of the body of the woman so as to cause penetration into the said orifices, or makes her do so with him or any other person.	Applies his mouth to said orifices of a woman or makes her do so with him, or any other person.  (Note: No form of penetration is required here)

FAQ 4: What does consent mean?

Section 375, goes into great detail on the question of consent. When an act falling within any of the four categories is done, under any of the following conditions, it constitutes rape:

Conditions under which the 4 categories of acts constitute rape.

1. Against the will of the woman.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under eighteen years of age.
7. When she is unable to communicate her consent.

Ok, but what does consent mean?

Consent, as laid down in Section 375 of the IPC, means an ‘unequivocal voluntary agreement’ when the woman by ‘words, gestures or any form of verbal or non-verbal communication’, communicates willingness to participate in the specific sexual act.

The Indian Supreme Court has clarified that ‘against her will’ and ‘without her consent’, are two distinct categories, though there might be an area of overlap between then. The phrase against her will, connotes an act of sexual intercourse committed despite a woman’s resistance and opposition. Consent on the other hand, according to the Indian Supreme Court, implies an act of reason accompanied by deliberation.

The Indian Penal Code makes it abundantly clear that the fact of a woman not physically resisting the act of penetration shall not by the reason only of that fact indicate consenting to the sexual activity. Merely submitting to sexual assault (for example due to fear), without putting up a physical resistance, does not amount to consent.

It might be interesting here to mention the Mathura case, a case that remains a blot on Indian legal history. This 1972 case involved the custodial rape of a tribal girl, by two police constables. The alleged perpetrators were acquitted by the Hon’ble Supreme Court of India. The decision betrayed a confusion about the difference between submitting to an act of sex, andconsenting to it.

In inferring that the 16-year-old girl ‘consented’ to the activity, the court relied upon factors such as “stiff resistance having been put up by the girl is all false” and the “alleged intercourse was a peaceful affair”.

In an open letter, written to the Chief Justice of India, by leading Indian academics (it is worth a read and can be found here) the underlying assumptions of this judgment were challenged. One paragraph of this letter, hits the nail on the head with regard to the meaning of consent, and I have quoted it below:

“There is a clear difference in law, and common sense, between ‘submission’ and ‘consent’. Consent involves submission; but the converse is not necessarily true. Nor is absence of resistance necessarily indicative of consent. It appears from the facts as stated by the Court and its holdings that there was submission on the part of Mathura. But where was the finding on the crucial element of consent?”

Let us now look at some other questions that are frequently asked on the issue of rape, particularly about the quantum of punishment for it.

FAQ 5: What is the punishment for rape? Is there a more severe punishment for rape committed in certain circumstances?

Offence	Punishment	Relevant Section
Rape	Not less than seven years, may extend to life, with fine.	See Section 376 IPC
Rape by a) Police officer -1) Within police station -2) Premises of any station house -3) On a woman in the custody of the police officer or his subordinate b) A public servant on a woman in his or his subordinate’s custody c) A rape committed by a member of the armed forces deployed in an area by the Central or State Government, in such an area. d) Rape committed by a person in the management of or staff of a hospital, remand home, jail, women’s institution, children’s institution, or any such place of custody. e) Rape committed by a relative, guardian, teacher, or a person in a position of authority over the woman f) Rape committed during communal or sectarian violence g) Rape committed on a woman, knowing her to be pregnant. h) Rape committed on a woman under sixteen. i) Rape committed on a woman who is incapable of giving consent. j) Rape committed when the perpetrator is in a position of control or dominance over the woman k) Rape committed on a woman suffering from a mental or physical disability. l) Rape committed on the same woman repeatedly m) Causing grievous hurt, disfigurement, maiming, or endangering the life of a woman during the commission of rape.	Rigorous imprisonment for not less than ten years, which may extend to life (which shall mean the remainder of that person’s natural life) and fine	See Section 376 IPC
Persistent vegetative state or death caused in the commission of rape	Not less than 20 years, may extend to life (which shall mean the remainder of that person’s natural life) or with death	See Section 376 A
Gang-rape	Not less than 20 years, may extend to life (which shall mean the remainder of that person’s natural life) and fine	See Section 376 D

FAQ 6: What is a gang-rape? Does each member of the group or gang have to commit sexual assault in order to face punishment?

Section 376D of the Indian Penal Code lays down that ‘Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished ….’

This provision for gang-rape recognizes that it is not necessary for each person in the group to actually commit the crime of rape, to have high degree of culpability. The law penalizes any activity done in furtherance of the common intention of the group as if it was the offence of rape itself. This would mean that even persons who stand guard over doors, or hold the victim own cannot get away with a lighter punishment by claiming that they did not actually commit the sexual assault.

FAQ 7: Is there a more severe punishment for repeat offenders?

Section 376E of the Indian Penal Code states that whoever has been previously convicted of an offence punishable under Section 376 or section 376A or section 376D (i.e. committing rape, causing death or vegetative state in the course of committing rape or committing gang-rape) and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life (which shall mean imprisonment for the remainder of that person’s natural life) or with death. Note that this section requires a previous conviction to be present, followed by a subsequent conviction.

These are some questions on rape and the law that we thought were relevant. As mentioned before, this body of law is large, and some things can get left out, keeping in mind the demands of brevity and readability. If there was something you wanted to know, that we have not addressed, feel free to shoot out more questions, and we will try to answer them to the best of our abilities.

Olympians: Our poster children for "Save the Girl Child" campaign?

In the days ensuing the Olympics, our two medallists (Sakshi Malik and PV Sindhu) and two almost

medallist (Dipa Karmarkar and Aditi Ashok) have been relegated to eternal glory. There is absolutely nothing wrong with that. They deserve every bit of the adulation (and maybe we would have seen more such enterprising athletes if the attention is given before the games rather than after it.) But, then they were started to be linked to the “Save the girl child campaign”. So much so that, we all made them intentional / unintentional poster children of the campaign. The fact that it takes Olympic medals to justify saving our girl children is a horrific idea indeed. Every life deserves to live and the “Save the girl child campaign” was brought to the fore because the girls were faring much worse in the infanticide statistics. Don’t they deserve to be saved even if there are no Olympic medals to point out that girls bring laurels to our country? The fact that it is a life – a living breathing soul – gives them a right to live whether or not there are poster children to support justification of their existence.

Please do not get me wrong. I do not intend to say that we should ignore the glories the girls brought to our country. But that glory should be used as a justification to encourage sports and its wider reach. Female infanticide, however, is a different matter altogether – which deserves equal attention but the right kind of attention. Linking the two issues dilutes their importance and the attention they both require. Why are we sending out a wrong message? That till a girl wins a medal, her birth and her existence do not merit automatic celebration. So the message is, “Don’t kill your daughters not because they are human beings and have as much as value as your sons; but because they may someday become potential medal winners.”

Some social media enthusiasts even went ahead and dug out a picture of PV Sindhu in traditional saree regalia to demonstrate that she could carry the weight of tradition and wield an Olympic medal winning badminton racquet with equal pride. Don’t be fooled by the short skirt and the unapologetic aggression on court, it was suggested. This girl respects boundaries. The kind that really matter. What a tragedy to provide such justification to people who are still hell-bent on seeing women play the traditional roles of the society no matter how much they prove themselves capable of something. This reminds me of the now famous Sania Mirza interview where Rajdeep Sardesai proved his very

orthodox mindset by asking a very sexist question about motherhood and settling down; a question she didn’t take too lightly. The popular anchor in the end acknowledged it wasn’t something he might ask a male athlete. But, it took a usually calm and composed tennis ace to slam him down to make him realize his folly. The issue is that no matter how progressive they pretend to be, this is exactly what comes naturally to people whereas feminism needs to drilled down their throats.

Let’s give credit to PV Sindhu, Sakshi Malik, Dipa Karmakar, Aditi Ashok and Sania Mirza where it’s due without appropriating them to any campaigns. They are just doing the best they can to realize their ambitions and to excel in their chosen disciplines regardless of the cultural, political and sociological tampering that goes on around their gender. An ambitious woman in any case is an anomaly till she makes it big and then everybody wants a little piece of her. Then she becomes an emblem of something that is obviously bigger than her. The country, culture and conditioning that have impeded her growth now want credit for her success just by association.