Guest post by BEKHAUF AZAADI CAMPAIGN
The UPA Govt, in a Cabinet meeting held on 1 February, has introduced an ordinance that it claims will address the most urgent concerns on sexual violence. In fact, the Government has been completely reluctant to acknowledge and implement the Justice Verma Committee recommendations: the PM refused to accept it from Justuce Verma, the Ministry of Home Affairs removed it from their website, the Govt never adopted any transparent process of discussion to decide the way forward on implementing the recommendations, rather they said Justice Verma ‘exceeded his brief’. Now, they claim that their ordinance has ‘implemented’ the Justice Verma recommendations. Is this true?
The fact is that the Government’s ordinance is a mockery of the letter and spirit of the Justice Verma recommendations. Why? Let us take a closer look.
The Justice Verma report radically redefined the way in which sexual violence is understood, because it firmly called for safeguarding women’s autonomy – including her sexual autonomy. This means that sexual violence should be understood as any sexual contact that is forced on a woman unless she has explicitly said or indicated ‘Yes’ to it. It is irrelevant whether she is married or not, or whether the perpetrator is a policeman, judge, magistrate, public servant, politician, or army officer: the accused/perpetrator cannot enjoy impunity in any case! The ordinance completely mocks this basic principle.
The ordinance is nothing but the Govt’s old discredited Criminal Law Amendment Bill 2012 with some extra window dressing. What’s WRONG with this ordinance?
• Rejecting Justice Verma’s recommendations to ensure gender-specificity (male) of the perpetrator of rape and gender-neutrality for victims, the ordinance makes rape a ‘gender-neutral’ crime. This means that a man can accuse a woman of rape!!
• The ordinance criminalises consensual sexual activity between 16-18 years; such sexual activity, even by consent, will automatically be seen as rape. This will give a handle to the moral-policing brigades and communities who harass inter-caste and inter-religious friendships and relationships, by branding young boys as ‘rapists.’ See what is happening in Mangalore now: Bajrang Dal and Durga Vahini brigades have been entering ice-cream parlours, rounding up teenage couples and handing them over to the police; the Chhattisgarh police in Bhilai is doing the same. Such forces will get a handle to use the rape law against boyfriends.
• The ordinance refuses to include marital rape in the rape law – and it continues to give a lesser punishment for rape of a separated wife by a husband. The Govt’s press release about the ordinance shamelessly says that “Verma criminalises marital non-consensual sexual intercourse” but the Govt will not do so! So, according to the Govt, not every ‘non-consensual’ sexual act is rape; a husband is allowed to force sex on his wife! Even if the wife is separated from her husband, the law will be ‘understanding’ and ‘lenient’ towards him if he rapes her, since she was ‘once his wife’! This means that the ordinance continues to see the wife as the husband’s sexual property, rather than as a person is her own right, with the same right to say YES and NO to sex as any unmarried woman! We know domestic violence is common in marriage: can’t the husband who batters his wife, also rape his wife?! Our govt is saying he will have the right to rape his wife!
• The ordinance rejects Justice Verma’s recommendation of the principle of ‘command bresponsibility’ in case of custodial rape by police or army: i.e the principle that a superior officer will be held responsible if a junior officer commits rape or sexual assault. This principle is crucial if one considers the manifold cases of custodial rape like that of Soni Sori – where a senior officer Ankit Garg ordered his juniors to sexually torture her; or a case like Kunan Poshpora, where an entire village of women in Kashmir was gang-raped by the Army – something that could not have taken place without the awareness and blessings, even orders, of higher officers!
• The ordinance fails to include sexual violence in the context of caste/communal massacres in the category of ‘aggravated sexual assault’ – as recommended by Justice Verma report (p 220).
• The ordinance rejects the Justice Verma’s recommendation that no sanction be required to prosecute judges/magistrates/public servants who are accused of sexual violence; and similarly that the AFSPA be amended to do away with the requirement for sanction to prosecute an army officer accused of sexual violence. Justice Verma’s argument was clear: no army officer nor any judge or public servant can claim to have raped in the course of his duty! The ordinance, by rejecting Justice Verma’s recommendations, ensures impunity for powerful rapists. Similarly the ordinance makes no move to implement the electoral reforms called for by Justice Verma, specifically against candidates and elected representatives accused of serious sexual offences.
• The ordinance introduces death penalty in the rarest of the rare cases of rape. This is a deliberate red herring. For one thing, death sentence is already a possibility in cases where rape is compounded with murder. By introducing it in the rape law, even Congress leader and advocate Abhishek Manu Singhvi, speaking on NDTV, expressed the ‘personal opinion’ that this would further lower the conviction rate because it would deter the court from sentencing!
• The Justice Verma report recommended imprisonment for 5 years for a policeman who failed to follow the law (i.e registering FIRs or proper investigation); the ordinance admits for a jail term of just one year for this offence.
• The ordinance completely ignores the recommendations of changes in medico-legal protocol, including prohibition of the two-finger test and ensuring rape crisis centres and proper medical care and examination of rape survivors; as well as police reform, public transport and other measures.
The ordnance makes of mockery of all those recommendations of the Justice Verma committee that actually reflected the idea of protecting women’s autonomy: be it a 16-year old girl who has sexual contact with her boyfriend to a married woman who says no to her husband, the ordnance just fails to accept a woman’s own autonomy and consent as crucial to deciding if rape occurred or not! The ordnance continues to make excuses for certain powerful perpetrators of rape: it continues to ensure that certain institutions of power (marriage/police/army/judges/magistrates/public servants/politicians) remain protected from prosecution for rape.
The Bekhauf Azaadi Campaign Has Called for a Protest Against the Ordinance that makes a mockery of the Justice Verma Committee Recommendations on the 4th of February at 2 pm at Jantar Mantar, New Delhi. Join in large numbers. More protests to follow.