Strengthening the Rule of Law | Legal Reform Ideas for Tamil Nadu
Gender and Criminal Justice
Introduction
This concept paper is the second in a series exploring legal reform ideas for Tamil Nadu. The legal reforms in this concept paper focus on gender and criminal justice.
The concept paper will be presented at a closed-door workshop, which will bring together key stakeholders to shape the future of Tamil Nadu’s legal landscape, focusing on strengthening the rule of law to support both economic development and social welfare. The workshop is an opportunity to gather expert insights and collect feedback on proposed legal reform ideas from a diverse group of participants, ensuring that the reforms are practical, effective, and tailored to Tamil Nadu’s unique context, leading to refined, actionable legal reform proposals for the state.
Select ideas from the concept paper series will be collated as part of a briefing book outlining suggested legal reforms for Tamil Nadu.
Key reform ideas
1. Eradicating caste discrimination in Tamil Nadu prisons
Caste discrimination is an unfortunate reality in Indian prisons, including those in Tamil Nadu. Investigations into Tamil Nadu prisons reveal that prisoners are housed and assigned work exclusively based on their caste identity. Caste discrimination in prisons is an extension of societal caste inequality which has been exacerbated by legal instruments that pertain to prison management and prisoners’ treatment.
In Tamil Nadu, prisons are governed by the Tamil Nadu Prison Manual, which contains the Tamil Nadu Prison Rules, 1983. Several provisions of the prison rules perpetuate caste segregation or hierarchies, and/or have discriminatory undertones. As a first step towards eradicating caste discrimination in Tamil Nadu prisons, the Tamil Nadu government ought to update the prison rules to amend and/or repeal provisions that perpetuate caste discrimination in prisons.
2. Recalibrating POCSO: Balancing protection and consent
The Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) aims to safeguard children from sexual offences. However, certain aspects of the POCSO law warrant careful reconsideration, primarily POCSO’s blanket criminalization of all sexual acts involving children (anyone below 18 years). By rendering teenagers incapable of giving consent to sexual relationships, consensual romantic relationships between teenagers often get criminalised. There is a need for recalibrating POCSO to adopt a more nuanced approach to legislation on child sexual abuse, balancing the imperative of safeguarding children with the realities of adolescent relationships, while simultaneously incorporating robust safeguards to prevent misuse of the law.
Legal reform of POCSO requires a holistic approach wherein child sexual abuse is penalised keeping in mind the scope and context of the situation. Revisiting the age of consent is crucial, potentially introducing close-in-age exemptions or more liberal provisions for consensual relationships among adolescents. Clear guidelines must be developed to differentiate consensual relationships between teenagers above 16 years, from exploitative situations of sexual assault on children below 16 years.
3. Decriminalising drug addiction and adopting a public health approach
The Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS’) and the attendant Tamil Nadu Narcotic Drugs Rules, 1985, were enacted to make stringent provisions for controlling and regulating operations related to narcotic drugs and psychotropic substances. However, their implementation prioritises criminalisation of small-time users and addicts. A criminal justice response to drug use is outdated and counterproductive to public health. Criminalising addiction stigmatises users and their incarceration hinders access to de-addiction centres and quality healthcare needed for recovery.
It is imperative to develop legislative and policy interventions that holistically tackle drug use in Tamil Nadu, shifting the focus from criminalisation to public health. To effectively address drug addiction in Tamil Nadu, legal amendments to the NDPS and the Tamil Nadu Narcotic Drugs Rules, 1985 are essential.
4. Enacting a framework for Deed of Familial Associations
Members of the LGBTQIA+ community face pervasive discrimination and harassment in various aspects of their lives. The situation is further complicated by the fact that same-sex marriages are not recognised under Indian law, and there is inadequate legal regulation to protect individuals in same-sex partnerships and other non-conformist family structures. The Madras High Court suggested that the Tamil Nadu government could consider recognising a Deed of Familial Association (‘DFA’) entered into between LGBTQIA+ couples. The draft Tamil Nadu Gender and Sexual Minority Policy of 2024 also recommends recognition of same-gender relationships by means of a DFA.
The DFA could serve as a contract stipulating that two adults of sound mind have consensually entered into a relationship with one another, recognising the right of partners to choose to form queer families. As a formal document evidencing the commitment of the parties to one another and their intention to live as a family unit, the DFA would be a means to ensure recognition of the relationship and protect queer families against harassment or violence, especially from natal families. The DFA could potentially deter discriminatory actions and serve as proof of the relationship’s legitimacy in various social and institutional settings, enabling queer families to avail socio-economic benefits.
5. State amendments to the new criminal codes to further gender justice
The Bharatiya Nyaya Sanhita, 2023 (‘BNS’), which has now replaced the colonial era Indian Penal Code, 1860 (‘IPC’), continues to retain vague and ambiguous provisions that hinder gender justice. Under the BNS, ‘rape’ is a gendered provision – where the offender can only be a man and the victim a woman. The BNS does not provide for a separate offence to cover rape of men and transgenders, and fails to penalise sexual violence against men and transgender persons.
The BNS could be amended in its application to Tamil Nadu to address several key issues in the current legislation. Section 63 of the BNS could be amended to redefine rape as a gender-neutral offense, encompassing all potential victims regardless of gender, and providing legal protection for male and transgender victims of sexual violence. These amendments, if adopted, would significantly improve the BNS’s ability to address sexual violence comprehensively and equitably, regardless of the gender identities involved.
Filed Under
About the Authors
Manjushree is a Senior Resident Fellow and Team at Vidh, Tamil Nadu. She has previously advised the Ministry of Corporate Affairs on the Competition (Amendment) Bill, 2022, and has also advised the International Financial Services Centre Authority. She graduated from NALSAR University of Law, Hyderabad in 2019. Her primary areas of interest are International Economic Law and Competition Law. She is a trained theatre enthusiast, and has featured in several plays directed by the National School of Drama.
Sruthakeerthy is a Research Fellow at Vidhi Tamil Nadu. Prior to this, as a Mahatma Gandhi National Fellow working with the Ministry of Skill Development and Entrepreneurship in rural Tamil Nadu, she was involved in the formulation and implementation of policies and action plans to improve the skill development ecosystem, targeted at raising economic output, mitigating unemployment and promoting livelihoods. She has also worked as a Legal Content Analyst at Nyaaya, creating explainers and guides to enhance legal awareness. She graduated with a B.A., LL.B. (Hons.) from NALSAR University of Law in 2020. She enjoys reading, listening to music, singing, and travelling.
