LEGAL HISTORY PAPER
“THE INDIAN PENAL CODE OF 1860 DISREGARDS THE RIGHTS AND ENTITLEMENTS OF WOMEN IN INDIA- A DISCUSSION”
Criminal law of a country, in its quest to preserve social order and solidarity, not only prescribes a set of norms of human behavior but also forbids the human conduct that exhibits disrespect to these norms. It does so by stipulating punitive sanctions for such a conduct. However, this forbidden conduct and the prescribed penal sanction depends upon the socio-moral ethos of a community. Therefore, penal law of a country needs to be appreciated and understood in the backdrop of its prevailing social, moral and cultural values, and political ideologies. The Indian Penal Code, 1860, was drafted by the first law commission under the Presidentship of T.B. Macaulay. After some further revision it came into effect from 1st January 1862, and by virtue of article 372 of the Constitution, it is still operative in India. The forbidden human conduct and the associated punitive measures mentioned in the IPC apply to all people irrespective of them being men or women. When presented in this manner the IPC seems essentially and inherently gender neutral. This approach however, does not take into account the differential impact of IPC on men and women due to the differential status, socialization, and resources available to men and women in reality. A close examination of the extent to which the IPC has followed and incorporated the patriarchal value, ensuring male domination, power and authority is therefore necessary. Before going into a gender analysis of specific provisions of the IPC, it is imperative to note that the legal language itself tends to marginalize women by saying that ‘he’ includes ‘she’. Very obviously this marginalization of women in legal language is a mere reflection of her marginalization in real life. The legal discourses referred to women rather patronizingly as a paradanashin woman or a Hindu widow entitled to a limited right to property or as a victim of sexual assault. Oppression against women is seen in several forms. It may include rape, marital rape, mental or physical cruelty, bigamous marriages or even claims made of maintenance. A critical analysis of sections of IPC dealing with these offenses reflects that the criminal law of India is gendered and derived from the powerful social position of men, relative to women. GENDER ANALYSIS OF THE INDIAN PENAL CODE
The criminal law of India, does not deal adequately with sexual assaults against women. It in many ways disregards even the basic rights of women in India. This can be corroborated by an analysis of section of IPC relating to rape eve teasing and sexual harassment.
Clauses 359 and 360 of the IPC, 1860, that ultimately culminated as section 375 and 376, IPC, dealt respectively with the offence of rape and the punishment thereof. Clause 359 reads: A man is said to commit rape, who, except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions. First, against her will; second, without her consent; third, with her consent when her consent has been obtained by putting her in fear of death, or of hurt; fourth, with her consent, when the man knows that her consent has been given because she believes that he is a different man to whom she is, or believes herself to be married; fifth, with or without her consent, when she is under nine years of age. Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception- sexual intercourse by a man with his wife is in no case rape. Clause 360, exhibits punitive reaction to rape stipulated as, whoever commits rape shall be punished with imprisonment of either description for a term which shall not be more than fourteen years and not less then two years. The final versions of...
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