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According to a recent press release, the Cabinet has approved a proposal to introduce a Bill in Parliament to amend the Indian Penal Code, 1860 (IPC). While the draft Bill is currently not available, its highlights are specified in the press release. As per the press release, the Bill aims to make rape laws gender neutral. The key features specified are:
Present Law According to section 375 of the IPC, an allegation of rape has to satisfy the following criteria:
This definition of rape does not include use of other body parts or foreign objects by the offender upon the victim’s body. Such offences are classified as “use of criminal force to outrage the modesty of a woman” (see here) and are punishable with two years imprisonment or fine or both. Rape, on the other hand, is punishable with imprisonment for seven years to a life term. Proposals to amend the law on rape Through an order in 1999, the Supreme Court had directed the Law Commission to review the law on rape (Sakshi vs. Union of India). The Law Commission had in its 172nd Report, dated March 25, 2000 made recommendations to amend the law to widen the definition of rape. In its report, the Commission had recommended that rape be substituted by sexual assault as an offence. Such assault included the use of any object for penetration. It further recognised that there was an increase in the incidence of sexual assaults against boys. The Report recommended the widening of the definition of rape to include circumstances where both men and women could be perpetrators and victims of sexual assault.[1] Amendments to the law on the basis of these recommendations are still awaited. The High Court of Delhi has recognised the need to amend the laws on rape. It observed that the law did not adequately safeguard victims against sexual assaults which were included by the Law Commission within the scope of rape. It was observed that the definition should be widened to include instances of sexual assault which may not satisfy the penile-vaginal penetration required under the existing law. The 2010 draft Criminal Laws Amendment Bill, released by the Ministry of Home Affairs, attempted to redefine rape. The draft provisions substitute the offence of rape with “sexual assault”. Sexual assault is defined as penetration of the vagina, the anus or urethra or mouth of any woman, by a man, with (i) any part of his body; or (ii) any object manipulated by such man under the following circumstances: (a) against the will of the woman; (b) without her consent; (c) under duress; (d) consent obtained by fraud; (e) consent obtained by reason of unsoundness of mind or intoxication; and (f) when the woman is below the age of 18. Variation between proposals The existing legal provisions, the Law Commission Report, the 2010 Bill and the recent press release are similar in that they provide an exception to marital rape. Under the law, un-consented sexual intercourse is not an offence if the wife is above a certain age. (Under the existing law the wife has to be over 16 years’ of age and as per press release she has to be more than 18 years old.) This is at variance with the proposal of the National Commission of Women (NCW). An amendment to the IPC recommended by the NCW deleted the exemption granted to un-consented sex between a man and his wife if she was more than 16 years old. It therefore criminalised marital rape. As per the press release, this exemption has been retained in the proposed Bill. Furthermore, as per the release, while the age of consent for sexual intercourse will be increased to 18 years, for the purpose of marital sex, the age of consent would be 16 years.
[1] Review of Rape Laws, Law Commission of India, 172nd Report, paragraph 3.1.2, "375. Sexual Assault: Sexual assault means - (a) penetrating the vagina (which term shall include the labia majora), the anus or urethra of any person with - i) any part of the body of another person or ii) an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes; (b) manipulating any part of the body of another person so as to cause penetration of the vagina (which term shall include the labia majora), the anus or the urethra of the offender by any part of the other person's body; (c) introducing any part of the penis of a person into the mouth of another person; (d) engaging in cunnilingus or fellatio; or (e) continuing sexual assault as defined in clauses (a) to (d) above in circumstances falling under any of the six following descriptions: ... Exception: Sexual intercourse by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault."
As of April 28, Odisha has 118 cases of COVID-19. Of these, 37 have been cured, and 1 person has died. In this blog, we summarise some of the key decisions taken by the Government of Odisha until April 28 for containing the spread of COVID-19 in the state.
Before the lockdown
On March 24, the state government enforced state-wide lockdown. Before enforcing it, the state government took several measures for preventing the spread of COVID-19 besides declaring it as a State disaster on March 13. Some of the key measures are summarised below.
Health Measures
The Odisha COVID-19 Regulations, 2020: On March 18, the Government issued The Odisha COVID-19 Regulations, 2020. These regulations are valid for a year. As per these regulations, both government and private hospitals must have dedicated COVID-19 isolation facilities.
Foreign returnees: On March 16, the Government issued an order for foreign returnees to: (i) mandatorily register on COVID portal within 24 hours of their arrival (ii) home quarantine themselves for 14 days. An incentive of 15,000 rupees will be provided for registration and completing home quarantine.
Prisons: On March 17, the Government released precautionary measures to be taken in prisons by authorities and inmates. Newly admitted prisoners should be quarantined in different wards for a week. From March 18, e-Mulakat was allowed in District headquarters jails.
Private Health Care Facilities: On March 19, the Department of Health and Family Welfare issued guidelines for Private Health Care Facilities. The guidelines specify the hospitals to have a COVID-19 specific counter with separate entrance, regulating the entry of visitors, and infection control measures.
Media: On March 21, the Department of Health and Family Welfare issued guidelines to the media not to publish any information or interview the infected persons, their relatives, doctors and support medical staff of them.
Increasing the health workforce in the state: The Department of Health and Family Welfare issued an order on March 23 for the engagement of Staff Nurses and other Paramedics on a short term basis. The hired employees will be provided with additional incentives.
Administrative Measures
State crisis management committee: On March 4, a State crisis management committee was formed to take policy decisions regarding cluster containment.
Prohibiting strikes of employees: On March 21, the government issued an order prohibiting any strikes by employees engaged in the supply of drinking water and sanitation in urban local bodies. The order is valid for six months.
Public and private establishments: On March 21, the government requested all public and private establishments not to terminate the employees or reduce their wages.
Movement Restrictions
Closure of commercial establishments: On March 13, the Department of Health and Family Welfare ordered for the closure of cinema halls, swimming pools, gyms and educational institutions except for holding examinations until March 31.
Suspension of bus services: On March 23, the Department of Health and Family Welfare issued an order suspending intra-state bus services from March 24 and City bus services in all urban local bodies from midnight of March 23.
Lockdown in few districts: On March 21, the government announced lockdown in five revenue districts and eight towns of the state until March 29. The lockdown involved (i) suspension of public transport services (ii) closure of all commercial establishments, offices, and factories (iii) banning the congregation of more than seven people at any public place.
During the lockdown
With two cases in the state, on March 24, the government extended the lockdown to the entire state till March 29. Establishments engaged in the supply of essential goods and services were excluded from this lockdown.
This was followed by a nation-wide lockdown enforced by the central government between March 25 and April 14, now extended till May 3. Before the extension announced by the central government, the state government extended the lockdown in the state till April 30.
Starting from April 20, the central government allowed certain activities in less-affected districts of the country. Further, on April 24, the Ministry of Home Affairs allowed the opening of certain categories of shops with a limited workforce.
Welfare Measures
The Odisha government announced several welfare measures to address the difficulties being faced by people during the lockdown. Key measures include:
Temporary shelter for migrants: On March 28, the government ordered District collectors and Municipal Commissioners to use closed down schools and hostel buildings as temporary shelters for the migrants.
Provision of food in rural areas: On March 30, the government decided to provide hot cooked food for needy people in rural areas at affordable prices. Two meals per day will be provided at Rs 60 for adults and Rs 45 for children per day.
Compensation to family members: The Odisha government will be giving compensation of fifty lakh rupees to the family members of the employees who may die due to COVID-19 and are not covered under insurance scheme of the central government.
Administrative Measures
Ordinances: As the State Assembly is not in session, the government promulgated two ordinances.
The Epidemic Diseases (Amendment) Ordinance, 2020: On April 7, the government promulgated an ordinance to deal with COVID-19 spread. The Ordinance amends Section 2 and 3 of the Epidemic Diseases Act, 1897. The Act provides for the prevention of the spread of dangerous epidemic diseases. The ordinance amends the act to increase the penalty for individuals committing the offences under the act.
The Odisha Contingency Fund (Amendment) Ordinance, 2020: On April 9, the Odisha Government promulgated Odisha Contingency Fund (Amendment) Ordinance, 2020. The ordinance increases the corpus of the contingency fund from 400 crores to 2000 crores. The contingency fund is generally used for meeting any unforeseen expenditure.
Setting up control rooms: On March 26, the Home department set up a round the clock control room for monitoring the issues regarding the implementation of lockdown and stranded Odias in various parts of the country. On March 27 and 28, three control rooms were set up in Bhubaneswar and Delhi for the migrant labourers.
Deferment of salaries: The government announced 70% deferment of salaries of all the elected representatives of the state and 50% deferment for the employees of All India Services such as IAS and IPS.
Implementation of MGNREGS: On March 31, the Department of Panchayati Raj and Drinking Water issued an advisory for the implementation of MGNREGS. Key measures include: (i) Job cards will be provided to people interested in doing unskilled works, (ii) Individual works up to 5 persons is allowed (iii) Hand wash and safe drinking water should be provided at the worksites.
Essential Goods and Services
On March 25, the government authorised certain authorities to issue passes for the free movement of essential goods.
For facilitating the movement of goods, the government allowed the opening of roadside dhabas, and vehicle repair shops situated on Highways. These should be located outside of towns and cities.
Health Measures
Amendments to Odisha COVID-19 regulations, 2020
On April 3, the government added following provisions to the Odisha COVID-19 regulations, 2020: (i) additional duties and responsibilities of hospitals and local bodies such as infection control measures in hospitals among others. (ii) state government or empowered officers can declare any government or private hospital as COVID hospital.
On April 9, wearing masks were made compulsory for the people stepping out their houses and were included in the regulations.
On April 16, the government included the ‘prohibition of spitting in any form in public places’ into the regulations.
Short term engagements: On March 27, the government invited senior professionals having expertise in various sectors such as health care management, international logistics, and charities to work as Honorary Advisors to Government on a voluntary basis. The government issued an order for engagement of microbiologists on a short term basis.
Training of MBBS students- On March 28, the government decided to train the MBBS students of all medical colleges studying 7th, 8th and 9th semesters and deploy them if there is a rise in the number of cases in future. Training of government establishments was taken up in the first phase. Private colleges were also requested to train doctors and students simultaneously.
Additional resources: On April 6, the State Executive Department authorized the Principal Secretary, Department of Health to requisition the services of anybody having expertise in public health care management. When the need arises, the government can use the services of healthcare professionals such as doctors, nursing staff from government or private organisations to assist the state government.
Support to personnel fighting the Pandemic: On April 22, the government announced certain measures to support the personnel fighting COVID-19 in the state. They are
The Government will invoke the National Security Act, 1980 against the individuals causing violence to any member of the medical community such as doctors, nurses, and health workers.
While on duty, if any government employee dies due to COVID-19, the family will get the salary until the retirement date of the deceased employee.
The cremation of the individuals dying due to COVID-19 on duty will be honoured by the state as usually accorded to the martyrs.
Handling the return of migrants from other parts of the country: On April 19, the Revenue and Disaster Management department issued an advisory to Gram Panchayats and Urban Local Bodies for handling the influx of migrants from other parts of the country, once the lockdown is over. The advisory has the following steps.
(i) All local bodies should have registration facilities. People returning from other states should register through their relatives or family members.
(ii) All persons arriving from various states will be quarantined for 14 days.
(iii) An incentive of 2,000 rupees will be provided to the people for completing the quarantine period in the quarantine facilities.
For more information on the spread of COVID-19 and the central and state government response to the pandemic, please see here.
