The Proposed Changes to the anti-rape laws are token sops that gloss over the Verma report.
ANY
ORDINANCE is promulgated as an emergency measure. Women live in a daily state
of ‘emergency’, their freedom curbed by the fear of sexual violence. But it is
not this emergency that has prompted the government’s ordinance. Rather, for
the government, the ‘emergency’ was the desperate need to somehow dilute and
divert the Justice Verma recommendations, which reflected the aims and demands
of the ongoing countrywide movement.
The
Justice Verma Report was a breath of fresh air, letting in the flowing wind of
democracy and freedom into all the prisons of patriarchy. For the first time,
here was a set of reasoned recommendations, backed by painstaking homework
recognising that sexual violence was about power, not sex; that removed sexual
violence from the frame of ‘shame-honour’ and understood it in terms of women’s
bodily integrity and dignity; and which sought to ablate the unbridled power
and impunity that breeds violence against women. The ordinance, instead, shores
up the walls of patriarchal privilege and impunity.
It is true
that the ordinance broadens the definition of sexual violence, recognises
stalking, acid-throwing and voyeurism as an offence, and introduces more severe
punishments. But on a range of key questions, the ordinance actively militates
against women’s autonomy and rights, and protects the impunity of powerful
rapists, and the lack of accountability of police and other institutions.
Justice
Verma’s Report had 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. On the other hand, 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. 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 government is
needed to prosecute the accused. Justice Verma sought to challenge and change
these in-built patriarchal assumptions, the protective shields for the
powerful, that go against justice for women. The ordinance’s purpose, instead,
seems to have been to prevent these patriarchal assumptions and protective
shields from being swept away.
And
further, the ordinance adds provisions that make women even more vulnerable
than they are under the existing laws. For instance, the ordinance makes the
perpetrator of rape ‘gender neural’, i.e. both men and women can be accused of
rape. This could mean that if a woman files a rape complaint against a man, he
is in the right to file a counter complaint of rape against her!
The
ordinance does not respect the rights of young girls between the age of 16 and
18 to have sexual contact by their consent with those of a similar age.
Instead, by automatically branding all such sexual contact as ‘sexual
violence’, the ordinance will strengthen the Khap panchayats and moral policing
brigades, who seek to curb the freedom of young people.
The ordinance
legitimises marital rape and strengthens the idea of the wife as the ‘sexual
property’ of the husband. It also retains the provision of lesser sentence
(minimum of two years) for a husband who rapes a legally separated wife. So,
even if a wife has taken the pain to separate herself from an abusive husband,
the law will make excuses for him if he rapes her. Effectively, the ordinance
implies that while wives are specifically prevented from being able to accuse
husbands of sexual assault — because of the ‘gender-neutral’ provision,
husbands can now accuse wives of sexual assault. The exclusion of marital rape
and the lesser sentence for rape of a separated wife are shocking violations of
the principle, upheld by Verma, that the relationship or prior relationship of
the accused with the victim will not be grounds to undermine the rape complaint
or show leniency.
There is a
deliberate attempt now, on part of the government as well as a variety of
patriarchal voices that have become active, to suggest that ‘marital rape’ is a
‘controversial’ issue. This is strange, to say the least. What is controversial
about saying that a woman, by marrying, does not sign away her sexual autonomy
for life? We should ask those who are painting apocalyptic visions of disintegrating
families as a result of recognising marital rape: do you mean that marriage and
the family institutions rest on the pillar of the sexual power a husband enjoys
over his wife? By recognising marital rape, will we not, in fact, democratise
the institution of marriage to a greater extent?
The
ordinance continues to offer a shield of impunity to the powerful. There are no
provisions against elected candidates chargesheeted for sexual violence. It
retains the requirement of ‘prior permission’ for prosecution of public
servants / judges / magistrates / army officers. So, no Ruchika Girotra or Soni
Sori (molested and tortured by police officers), Geetika Sharma or Rupam Pathak
(raped by MLAs), or Thangjam Manorama (raped by army personnel) can expect justice
under this ordinance. Senior police or 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.
The
government argues that the prior sanction clause is needed to protect public
servants and army officers from ‘false complaints’. Why should the government
be allowed to decide if a woman’s complaint of sexual violence is false or
true? Why can’t the courts be left to decide this, especially in cases where
the accused is powerful?
To ensure
accountability of the police, Justice Verma has stipulated a punishment of five
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 one year.
The
ordinance betrays its patriarchal core by continuing to call molestation as
“outraging modesty”. Not only does it fail to ban the demeaning and sexist
two-finger test, its definition of rape actually legitimises the two-finger
test, in the name of “penetration for medical purposes”.
The
shoddily-drafted and antiwomen ordinance, promulgated by stealth before any
citizen of the country had even seen it, is a disservice to the painstakingly
prepared Justice Verma Report that was formulated by a democratic and rigorous
process. This is why there is a public outcry against it.
THE
GOVERNMENT’s position is that they have not ‘rejected’ any of the Verma
Committee’s recommendations, but have simply left out ‘controversial’
provisions. Women’s autonomy and rights, and the question of ending impunity
and ensuring accountability are the backbone of the Verma Report; by terming
these controversial, the government has revealed its own ideological bias.
The
ordinance continues to make excuses for rape in a variety of contexts — and
that is why it must, at the earliest, be replaced by a thoroughgoing Criminal
Amendment Act that is based on the Justice Verma recommendations. The
government must also back the Verma recommendations with budgetary allocations
in the forthcoming Budget: spending enough on rape crisis centres, more judges
and courts to ensure speedier trials, safe houses for women facing violence in
their homes, and forensic facilities, rather than on lakhs of crores of tax
giveaways to huge corporations.
