Is selling merchandise of this late singer a crime? Shockingly, it is and there are other outdated laws which infringe on basic human rights
By Hansa Malhotra and Geetika Mantri
Even as India brims over with a million possibilities and multiple voices, it is hampered by numerous redundant laws. Our constitution is an impressive, colossal document but many provisions still institutionalize regressive mindsets. Take the widely celebrated Supreme Court judgment which took down Section 66 A of the Information Technology Act. It authorized the police to make arrests over “offensive”, “menacing” or inappropriate social media posts. There are other archaic and stifling laws and the Modi government has been deliberating over whether to scrap them. Here are five laws that violate basic human rights:
Young Persons Harmful Publications Act, 1956
Never heard of this? Had he been alive, the legendary Jamaican singer Bob Marley would have been surprised to play a part here. In March 2014, the Kerala government clamped down on shopkeepers selling his T-shirts. Reason? The government found an association between him and youngsters consuming drugs in Kerala. Using the archaic Young Persons Harmful Publications Act, 1956, the government charged vendors selling Bob Marley merchandise, including
T-shirts, key chains and lockets for encouraging youngsters to use drugs like marijuana. The law allows for a prevention of the “dissemination of certain publications harmful to young persons” and anything that “tends to corrupt a young person”. Pictures and stories which depict “violence or cruelty” or “incidents of a repulsive or horrible nature” can be gagged.
President of the Centre for Civil Society Path J Shah laments the existence of the law and says: “Words such as repulsive and horrible contained in the definition of harmful publication are vague and subject to arbitrary interpretation.” India is already reeling under the burden of laws that penalize “seditious speech”, giving unprecedented power to the political framework. Was such a law then necessary?
Who defines what is “harmful” is subjective and can be conveniently misused for political vendetta. With growing concerns about Hindu fundamentalism, this law can be used to silence any publication that may be offending the ideology of the powerful, not the youngsters.
Section 377 of the Indian Penal Code (IPC)
Harsh is a 27-year-old bank accountant in Delhi. He fears telling anybody that he is gay. “I don’t think anybody would understand. With the court against us, even if I get harassed, I can’t tell. I will be branded a criminal,” he says.
His story is a grim reminder that any deviance from the neatly structured social order of procreation will fall into the dark labyrinth of “sinful” deeds. The constitution guarantees freedom and equality for all, regardless of class, gender, caste, religion or sexual orientation. Despite that, Section 377 of the IPC makes “carnal intercourse against the order of nature” illegal. Although it does not directly mention homosexuality, the law can be interpreted to criminalize homosexuality. Criminalizing private sexual acts between consenting adults is a gross violation of the rights mentioned in the constitution.
Section 377 has been used to harass, blackmail and extort money from sexual minorities like eunuchs, transgenders and sex workers, who do not have legal protection against it. Also, who defines what is “unnatural?” If the concept of sex is purely for procreation, then even birth control should be “against the order of nature”. The demand for repealing this law is not for any special rights, but for equal ones. “We do not want any extraordinary privileges, but we merely want to enjoy the simple pleasures of loving and making a family,” says Harsh.
Section 375 of the IPC
Over 104 countries recognize marital rape as a criminal offence. However, Section 375 of the IPC specifically makes an exception for “sexual intercourse by a man with his own wife, the wife not being under 15 years of age” while defining “rape”. An extensive report by Justice JS Verma reviewing women’s security laws in the aftermath of the 2012 Jyoti Singh gang rape, reiterated the need to legally acknowledge marital rape as an offence against women. With a huge public discourse emerging on the issue, all hopes were pinned on the Criminal Law Amendment Bill 2012 expecting the “exception” to become rule. Despite the resulting amendment, marital rape remained excluded from the purview of “rape”.
M Venkaiah Naidu, the then chairperson of the standing committee on home affairs, justified this decision on the ground that such recognition carried the potential of “destroying the institution of marriage”. Rape is a violation of a woman, whether she is married or not. Does marriage allow a man to force himself on a woman? The repressive, patriarchal idea that a wife is a husband’s property has been legitimized with this exception. What about the right to equality and liberty enshrined in the constitution? Yes, the repeal of the law can be misused. However, that cannot be a defense to continue with it.
Section 497 and 498 of the IPC
“Only a man can be proceeded against and punished for the offense of adultery,” said a Supreme Court bench to Gummadi Sailaja in 2012 in the W Kalyani vs the State case. This was after the high court failed to charge Kalyani, a woman who allegedly had an extramarital affair with Sailaja’s husband. The mere fact that Kalyani was a woman made her “completely immune to the charge of adultery”, it added.
Section 497 embodies an archaic definition of adultery as it only holds the man guilty for having sexual intercourse with the wife of another man “without the consent or connivance of that man”. This implies that sexual relations between a married man and an unmarried woman, widow or divorcee is not a crime. Section 498 also describes punishment for a man who “takes or entices away” another man’s wife. By its very definition, these acts perpetrate the patriarchal view that a woman’s identity after marriage is reduced to that of her husband’s.
“The scope of this section needs to be enlarged to make it gender neutral,” says Divyakant Lahoti, a Supreme Court advocate. One may argue that it benefits women by shielding them from the legal repercussions of adultery. However, it ultimately harms the interests of the woman who is a victim of adultery because the accused is also a woman.
Armed Forces Special Powers Act (AFSPA), 1958
On July 15, 2004, an absurd scene unfolded before Kangla Fort in Imphal. Twelve women stood nude, holding a huge banner that read: “Indian Army rape us.” This was not an act of provocation, but of protest against the alleged rape and murder of Thangjam Manorama. Suspected to be a member of the separatist People’s Liberation Army, she was arrested from her home in Imphal by personnel of the Assam Rifles four days before. Her corpse was found later with semen traces on her clothes, suggesting rape.
Even after a decade, the alleged perpetrators of that crime remain unprosecuted and untried as they were operating under AFSPA. It became an act in 1958 and allowed the arrest, search, detention or use of force against anyone on grounds of “reasonable suspicion” of unlawful activity in a “disturbed area”. Further, it allows immunity to the armed forces from any “prosecution, suit or other legal proceedings” for their actions unless sanctioned by the center.
The number of cases where AFSPA has been misused has risen steadily over the years. Appeals to review it have gone in vain. AFSPA is not only a direct impingement on the fundamental rights of citizens, it strips aggrieved parties of a platform to seek justice.
When people look to the law for justice, it is obvious that such unfair and redundant ones do not serve the purpose.