Thursday 7 February 2013

People’s Watch Over Parliament,



Take Forward the Struggle Against Sexual Violence!
NO to Government’s Eyewash Ordinance!
Parliament Must Implement Justice Verma Recommendations!
Are Our Lawmakers Ready to Listen to the Voice of the Movement Against Sexual Violence?

Onwards to People’s Watch Over Parliament,
Starting on February 21, 1st Day of the Budget Session, at Jantar Mantar

Friends,
The horrific gang-rape of December 16 sparked off a massive movement that brought us all on the streets to say ‘Enough is Enough’ and demand action to ensure women’s freedom from sexual violence and gender discrimination. In keeping with the spirit of the movement, the Justice Verma Committee came out with a path-breaking Report, with recommendations that, if implemented, would truly make women less vulnerable to violence. But, instead of implementing the Justice Verma Report, the Government has instead chosen to pass an ordinance that completely subverts the substance and spirit of the Verma recommendations!       
Does the ordinance answer the demands we were raising, of freedom and safety for women? No, instead, it mocks them!
·       The ordinance, going AGAINST Justice Verma’s recommendations, says that both men and women can be accused of sexual assault and rape! Is this not a cruel joke with the women of the country? Whenever a woman files a complaint of rape, the accused will file a counter-complaint of rape against her!
·       According to the ordinance, any sexual contact, including touching, between young people of the age 16-18 will automatically be termed ‘sexual assault’, even if it is by mutual consent among friends! This is a law that can help the khap panchayats and moral police brigades that terrorise young girls and boys, not women! Again, this is the exact opposite of what Justice Verma had recommended. 
·       The ordinance justifies and legalises marital rape. Even if a wife separates legally from her husband, the husband will get a lenient (2 year) punishment if he rapes her! Justice Verma’s report had said that any sexual contact that is against a woman’s consent, is sexual violence – regardless of whether the relationship of the accused to the woman, even if he is a boyfriend or husband. A wife is not the property of her husband, she still has the right to say ‘no’ to sexual contact with him. If Justice Verma’s recommendations were implemented, it would make marriages more democratic, based on love and equality rather than on the husband’s power over the wife. Strangely, under the ordinance does not allow wives to accuse husbands of sexual assault – but husbands can file cases of sexual assault against their wives, and theoretically, wives can even get the life sentence or death penalty for ‘repeat offences’!
·       It rejects Justice Verma’s recommendation that politicians against whom a charge sheet has been filed for sexual violence, be prevented from contesting elections; that no government permission be required to prosecute judges/magistrates/public servants/army officers who are accused of sexual violence. Justice Verma’s argument is clear: no army officer nor any judge or public servant can claim to have raped in the course of his duty. As in any case, the Court can be the best judge, based on available evidence, of whether a complaint is false or true. Why should the Government be allowed to decide whether a case is true or false – even before a Court has seen the evidence? No Ruchika Girotra or Soni Sori (molested by a police officer), Geetika Sharma or Rupam Pathak (raped by MLAs), or Thangjam Manorama (raped by army personnel) can expect justice under this ordinance!
·       Justice Verma has stipulated a punishment of 5 years imprisonment for failure to register an FIR or biased investigation, in order to instil fear of consequence in police personnel who fail to abide by the law. But the ordinance dilutes this to a mere 1 year, and so clearly sends a message of leniency out to the police. Also, the ordinance refuses to punish a senior officer who orders or knowingly allows custodial rape by a police or army personnel.
·       The ordinance continues to insult women by referring to sexual violence as ‘outraging modesty.’ So, in courts, women who complain of violence will have to ‘prove’ their modesty’ in order to get the molester punished!
·       The ordinance fails to ban the demeaning and anti-women medical ‘two-finger test,’ whereby a doctor inserts two fingers into the rape survivor’s body in order to record whether or not she is ‘habituated to sex.’ So, it continues to allow the unjust question of a woman’s past sexual relationships to be brought into the rape trial.   
·       The ordinance rejected Justice Verma’s recommendation of action against khap panchayats that kill young couples who marry out of choice
Friends,
The Budget Session of Parliament begins on February 21. The Government will seek to enact a law based on this shoddy and anti-women, anti-people ordinance – that will become a tool against women, girls and boys – rather than against perpetrators of sexual violence. It is up to us to build enough pressure on Government and Parliament, to tell them – we are watching you, and we demand a law as well as budgetary allocations based on the Justice Verma recommendations, not on the eyewash of the ordinance!
We demand that Parliament enact genuine, comprehensive, pro-women legislative changes based on the Justice Verma recommendations!
We demand budgetary allocations for rape crisis centres, more judges and courts to ensure speedier trials, safe houses for women facing violence in their homes, and forensic facilities! We want the Government’s Budget to spend on these things that women need – rather than gifting lakhs of crores to corporations as tax giveaways!
We demand reform to ensure accountability of the police and judiciary!         
On February 21, the first day of the Budget Session of Parliament, we will begin a "People’s Watch Over Parliament" – do join, spread the word, bring your friends, colleagues, family! Contact us to join the campaign and help build support. See http://bekhaufazadi.blogspot.in/ for campaign materials, updates and campaign plans, and information about protest actions.          
Keep the Flame Alive...That the Delhi Braveheart Rekindled...
Freedom Without Fear
Campaign Against Sexual Violence and Gender Discrimination 

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Comparison- Ordinance Vs JVC


How UPA Govt Ordinance Undermines the Very Spirit of Justice Verma Committee Recommendations: A Comparative Analysis

The JVC Report
The Govt’s Ordinance

1
For the first time in India, spelt out a constitutional Bill of Rights for women, and the means to ensure those fundamental rights to equality, freedom, and autonomy

Ignores the Bill of Rights 

2
Recognised that sexual violence is not an act of sex or lust: it is an act of patriarchal power. Therefore, to reduce sexual violence, we must safeguard women’s freedom and rights; and to ensure that perpetrators are punished, we must undo the impunity and protection for such offences that is built into the laws and into our system   

Maintains the inbuilt ways in which laws protect powerful perpetrators

3
Recognised women’s rights to autonomy: including her sexual autonomy and her right to choose her partners, friends, and spouses. Recommended changing the archaic and anti-women vocabulary of laws. Understood sexual violence as a violation of a woman’s bodily integrity and her dignity, rather than as ‘outraging modesty’, ‘robbing honour’ or bringing ‘shame’.

Has many clauses that go AGAINST women’s autonomy and freedom, and retains the anti-women wording of ‘outraging modesty’ instead of molestation or sexual violence

4
Redefined the meaning of ‘consent’: stating that unless a woman indicates ‘Yes’ to sex, either by word or by gesture, no one can ‘assume’ that she consented. In the present system, many rape cases go unpunished because a woman is ‘presumed’ to have consented unless she has marks of injury on her body or on the body of the accused. She is ‘presumed’ to have consented if she is married to the accused. A girl is ‘presumed’ to be incapable of consent to sexual contact if she is 16-18 years old, even if her partner is of a similar young age, unless she is married to him. Moreover, she is ‘presumed’ to be lying if the man she accuses is a public servant; a judge; a magistrate; or an army officer; that is why, in such cases, prior permission from the Govt is needed in order to prosecute the accused. Justice Verma sought to challenge and change these in-built, wrong assumptions that go against justice for women. 

Accepted the changed definition of ‘consent’ as recommended by JVC, BUT retained many of the substantial provisions that fail to recognise and respect women’s ‘consent’ – in case of married women, 16-18 year-old girls, and women who complain against the powerful people such as judges, magistrates, police officers, bureaucrats, and army officers.

5
Expanded the meaning of sexual assault to cover a range of forms of sexual violence: from sexual harassment to stalking to voyeurism (making MMS etc) to acid-throwing to rape by insertion of an object or a male body part. Recommended higher and more severe punishment for various forms of sexual violence. 

Accepted expanded definition and scope of sexual assault, and more severe punishment

6
Recognised that the victim of sexual violence could be ‘gender-neutral’ (i.e could be female/male/transgender/hijra etc), but that the perpetrator is male.

Makes the perpetrator/accused in the rape law gender-neutral – i.e both men and women can be accused of rape. This will mean that if a woman files a rape complaint against a man, he can file a counter-complaint of rape against her!

7
Recognised that young people between the age of 16-18 do, naturally, indulge in sexual experimentation, and that such sexual contact between young people by mutual consent cannot automatically be termed ‘rape’.

All mutual sexual contact between young girls and boys of the age group 16-18 is automatically termed as ‘rape’. This means that innocent young boys will face rape charges, for no crime except that they befriended young girls of their own age. And a generation of young boys who grow up without learning to see girls as equals and as friends, will be more likely to be violent towards women as adults.

8
Recognises that rape happens even within marriage. Asserted that sexual contact, even within a marriage, must be with a woman’s consent; a wife is not her husband’s property, and cannot be ‘expected’ to have sex with her husband, against her will. Therefore, recommended removal of the existing exemption of ‘marital rape’ from the rape law. Upheld the principle that in the case of rape and sexual assault, the relationship of the accused with the complainant will not be the basis for denying her claim of rape; neither can it be the basis for a more lenient sentence. Therefore recommended deletion of the provision of lenient sentence in case of rape of a legally separated wife by a husband.

Legitimises marital rape – i.e forced sexual contact by husband against wife’s consent. Therefore strengthens the idea of the wife as the ‘sexual property’ of the husband. Retains the provision of lesser sentence (minimum sentence of 2 years) for a husband who rapes a legally separated wife! Therefore, even if a wife has taken the pains to separate herself from an abusive husband, the law will make excuses for him if he rapes her, on the grounds that she was once his wife, and so he can be excused for thinking of her as his property! Not only that, according to the ordinance, wives cannot accuse husbands of sexual assault – but because of the ‘gender-neutral’ provision, husbands can accuse wives of sexual assault! Not only that, husbands cannot get life sentence or death sentence for sexual assault even of a separated wife, but a wife accused by a husband of sexual assault, can under the ordinance get life sentence and even death sentence!

9
Sought to get rid of protections for powerful offenders. Recommended that politicians against whom a charge sheet has been filed for sexual violence, be prevented from contesting elections. Recommended that no sanction/prior permission 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/prior permission to prosecute an army officer accused of sexual violence. Justice Verma’s argument is clear: no army officer nor any judge or public servant can claim to have raped in the course of his duty. As in any case, the Court can be the best judge, based on available evidence, of whether a complaint is false or true.  

Continues to protect the powerful. No provisions against candidates charged with sexual violence. Retains the requirement of ‘prior permission’ for prosecution of public servants/judges/magistrates/army officers. So, no Ruchika Girotra (molested by a police officer), Geetika Sharma or Rupam Pathak (raped by MLAs), Thangjam Manorama (raped by army personnel) can expect justice!

10
Recommended changes in the law based on the principle of ‘command responsibility’ in case of custodial rape by police or army: i.e the principle that a superior officer will be held responsible if he orders or knowingly allows a junior officer to commit rape or sexual assault against a woman who is in custody, or is in a conflict area. This principle is very important if one looks at the rape of Soni Sori (Chhattisgarh SP Ankit Garg ordered his men to sexually torture her) or the rape and murder of Thangjam Manorama in Manipur in the custody of personnel of the Assam Rifles. Such rapes could not have occurred without the knowledge and explicit orders/tacit consent of senior officers. Given the widespread prevalence of sexual violence in conflict areas, the JVC also recommended a review of the AFSPA, which is encouraging such violence. That AFSPA in any case has a provision for periodic review, which has however not been done.     

Senior police/army officers will not be investigated or punished for custodial rapes that are committed at their orders or with their knowledge in custody by their junior officers.

11
Recommended changes in the existing medical investigation protocol for rape survivor. Recommended prohibition of the demeaning two-finger test and other forms of medical examination that investigate women’s past sexual history. Also recommended a protocol to ensure sensitive medical care of a rape survivor.

Does not prohibit ‘two-finger test,’ whereby a doctor puts two fingers into a rape survivor’s body to check if she is ‘habituated to sex.’ In fact, the ordinance’s definition of ‘rape’ (Section 375) legitimises this test, by stating that penetration or touching of private parts ‘for medical purposes’ (without specifying the need to obtain prior consent of the patient) will not be considered rape. The rape definition in the ordinance also, strangely, justifies penetration of the body for ‘hygienic’ purposes – so now, many rapists can try and explain away rape as a lesson in hygiene!          

12
Recommended more judges, more courts to ensure speedier trials and timely justice; also changes in judicial procedures to make rape trials gender-just.   

Accepts changes in judicial procedure, but does nothing in the direction of speedier justice

13
Did not recommend death sentence. 

Includes death sentence for rapes that result in death or permanent vegetative state of the victim. In the case of death of the victim, the provision of death sentence already exists and is nothing new. Death sentence for causing permanent vegetative state is dangerous for women: since the risk of hanging for murder and rape are the same, it is likely to become an incentive for the rapist to make sure to kill the victim so that she cannot testify against him.

14
Clearly made the Govt responsible for the failure to protect women from violence
a)     recommended 5 years imprisonment for police personnel who fail to do their duty (i.e filing FIRs, pursuing a fair investigation), recommended comprehensive police reforms 
b)     recommended setting up of well-equipped Rape Crisis Centres; safe houses for women facing violence; forensic investigation; and juvenile justice homes
c)      Spelt out the Govt’s duty to ensure safe and adequate public transport, and safety at bus stops and on streets, and a range of other governance measures.    

No efforts to ensure police accountability or governance;
a)     Punishment for failure to register FIR or biased investigation is just a token 1 year; no police reforms
b)     No provisions for rape crisis centres, forensic facilities, safe houses, juvenile homes etc
c)      No governance measures such as public transport etc to ensure safer public spaces for women   




Petition


Friends,
The horrific gang-rape of December 16 sparked off a massive movement that brought us all on the streets to say ‘Enough is Enough’ and demand action to ensure women’s freedom from sexual violence and gender discrimination. In keeping with the spirit of the movement, the Justice Verma Committee came out with a path-breaking Report, with recommendations that, if implemented, would truly make women less vulnerable to violence. But, instead of implementing the Justice Verma Report, the Government has instead chosen to pass an ordinance that completely subverts the substance and spirit of the Verma recommendations!      
The Budget Session of Parliament begins on February 21. The Government will seek to enact a law based on this shoddy and anti-women, anti-people ordinance – that will become a tool against women, girls and boys – rather than against perpetrators of sexual violence. Starting from February 21, let us gather in large numbers in a People’s Watch Over Parliament, to tell the Government and Parliament – we are watching you, and we demand a law as well as budgetary allocations based on the Justice Verma recommendations, not the eyewash of the ordinance!   
To
The Hon'ble Prime Minister,
Government of India 
Sir,
The horrific gang-rape of December 16 sparked off a massive movement that brought us all on the streets to say ‘Enough is Enough’ and demand action to ensure women’s freedom from sexual violence and gender discrimination. In keeping with the spirit of the movement, the Justice Verma Committee came out with a path-breaking and historic Report, with recommendations that, if implemented, would truly make women less vulnerable to violence. But, instead of implementing the Justice Verma Report, your Government has instead chosen to pass an ordinance that completely subverts the substance and spirit of the Verma recommendations!      
The Justice Verma Report is path-breaking because it asserted – and sought to protect – women’s autonomy and rights, to curb sexual violence, to ensure justice by removing the inbuilt patriarchal biases and protections for powerful people in the laws; and to ensure accountability for police and other institutions. The ordinance fails to do any of these things, rejecting Justice Verma’s recommendations in this regard.
The ordinance makes women more vulnerable than before, by saying that both men and women can be accused of sexual assault and rape. In future, whenever a woman files a complaint of rape, the accused will be able to file a counter-complaint of rape against her. The ordinance young people of the age 16-18 vulnerable to harassment by patriarchal forces, by making consensual sexual contact between them, an automatic case of ‘sexual assault.’ It justifies and legalises rape of a wife by her husband, but allows husbands to file complaints of sexual violence against wives!   
It rejects Justice Verma’s recommendation that politicians against whom a charge sheet has been filed for sexual violence, be prevented from contesting elections; that no government permission be required to prosecute judges/magistrates/public servants/army officers who are accused of sexual violence; that a senior police or army officer who orders or knowingly allows a junior officer to rape a woman, face punishment for sexual assault. Under this ordinance, no Ruchika Girotra or Soni Sori (molested by a police officer), Geetika Sharma or Rupam Pathak (raped by MLAs), or Thangjam Manorama (raped by army personnel) can expect justice. Justice Verma has stipulated a punishment of 5 years imprisonment for failure to register an FIR or biased investigation, but the ordinance dilutes this to a mere 1 year. The ordinance continues to insult women by referring to sexual violence as ‘outraging modesty.’ It fails to ban the demeaning and anti-women medical ‘two-finger test,’ and so continues to allow the unjust question of a woman’s past sexual relationships to be brought into the rape trial. It fails to repeal Section 377 that criminalises sexual minorities.
We are deeply outraged at this shoddily-drafted, anti-woman, anti-people ordinance. This was not what people all over the country demanded, facing tear gas and water cannons on the streets. This does not honour the memory of the Delhi braveheart. This does tremendous injustice to the Justice Verma Committee, that worked night and day to produce a blueprint of what can make India truly a country committed to safeguarding equality, freedom, and dignity for all. And this does injustice to India’s women, who deserve to live in freedom without fear.          
We, the people, demand that your government draft genuine, comprehensive, pro-women legislative changes based on the Justice Verma recommendations, and ensure that it is enacted in the coming Budget Session of Parliament. We demand budgetary allocations for rape crisis centres, more judges and courts to ensure speedier trials, safe houses for women facing violence in their homes, and forensic facilities. We want the Government’s Budget to spend on these things that women need – rather than gifting lakhs of crores to corporations as tax giveaways! We demand reform to ensure accountability of the police and judiciary, to ensure fair investigation and trial!
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