Legal activist Vrinda Grover said in the FeministsIndia e-list about the Ordinance: "The impunity of every citadel is intact—family, marriage, public servants, army, police." In effect, she said, the Ordinance is simply the pending Criminal Law Amendment Bill 2012, widely criticized by women's organizations, which has been sneaked in as law without debate or consultation, in Parliament or outside. Feminists activists are rightly suspicious of the sudden sense of "emergency" that has gripped the government, when it has ignored our demands for criminal law reform on sexual violence for over twenty years.
Here I will document two press releases issued by women's groups, and draw attention to some troubling and unresolved debates within the women's movement in India today. The post will conclude with a useful table comparing the Ordinance and the JVC Report, issued by the Ministry of Home Affairs.
As has been widely reported now, hundreds of individual women's movement activists and organizations from all over the country have called upon the President not to sign into law this Ordinance that makes a mockery of the recommendations of the Justice Verma Commission Report that was received with a sense of relief and acclaim by feminists in India. Despite these appeals, the President signed the Ordinance today.
The press release making this request to the President said:
Information in the public domain, through media sources, reveals that an Ordinance on amendments to sexual assault law was cleared by the Cabinet yesterday, on February 1, 2013 – about 20 days before the next parliamentary session. We are alarmed at the complete lack of transparency displayed by the Government in proposing an Ordinance as an emergency measure. We wonder what objective and purpose will be served by such a hasty non-transparent measure – less than 3 weeks before the parliamentary session, since the proposed law will not retrospectively apply to the Delhi gang rape case.
We demand transparency and due process in law making. We demand that the Parliamentary process, including the Standing Committee process be upheld, for this is the place where we, as citizens of this country, have the right to be heard.
The statement pointed out that virtually all the recommendations of the JVC Report that had been hailed as "signs of a paradigm shift" in understanding violence against women, had been dropped, that is:
recognition in law of marital rape, new provisions on the offence of breach of command responsibility, non-requirement of sanction for prosecuting a member of the security forces accused of sexual assault and rape, provision for trying them under ordinary criminal law for sexual crimes; and change in definition of consent to any sexual act. ..
Furthermore, the content of the Ordinance to our knowledge has introduced provisions that were strongly rejected by the Justice Verma Committee, including the death penalty.
It is revealing that the sanction for prosecuting members of security forces involved in sexual assault has been retained. Rape is not only about individual or private acts of misogynist violence, feminists have long been concerned with sexual violence as a weapon of war, and as part of a wider repertoire of race, communal and caste violence. In India, custodial sexual violence against women (by police and army) and the culpability and impunity of the state, has been addressed in significant ways.
Large parts of the country are under effective army rule, the North-Eastern states and Kashmir in particular, being covered by the Armed Forces Special Powers Act. From time to time acts of sexual violence on women (activists as well as relatives of men suspected to be militants) are carried out by members of the Indian state's armed forces.
Many such instances come to the notice of democratic rights groups and feminists, and are investigated by them, and protested about in various ways. Many remain unknown. But for the women's movement in India, the recognition of rape as a political weapon is a significant part of its politics.
But what is the Indian state saying when it rejects the idea through this Ordinance that such cases should be tried under the criminal law of the land? Is the Indian state making it quite explicit that rape is a weapon of war, and that its coercive apparatus will continue to use it with no compunction?
Two issues stand out in the conversation within the women's movement – gender neutrality in rape law and marital rape. The statement is strongly critical of the provision of gender neutrality regarding the perpetrator of sexual assault, suggesting that both women and men could potentially be charged for the offence. The statement insists that "Rape as we know it is a crime largely defined as male violence against women, with absolutely no evidence of women as perpetrators. This is in disregard of the Justice Verma recommendations too, and is totally unacceptable."
The question of gender neutrality in law on sexual violence is the subject of sharp debate within feminist and queer groups in India. One important suggestion for rape law reform is to remove narrowly defined 'rape' (which is defined only as penile penetration of the vagina) and replace this with a series of degrees of 'sexual assault', the punishment increasing in severity with the degree of physical harm caused. As Flavia Agnes has pointed out, only in sexual assault is harm caused by a part of the human body considered to be more grievous than harm caused by a weapon. The reason why in patriarchal law, penile penetration of the vagina is considered more grievous than penetration by say, an iron rod, is obvious. Rape is considered to be a harm against the honour of the woman's family, and the purity of her womb. Only the penis can damage that purity in such a way that patrilineal succession is cast in doubt – all other damage is bearable, ideally, leading to the death of the raped woman. That would be most ideal from the point of view of the family.
But once the definition of rape is expanded, gender neutrality of the perpetrator will have to be taken into account.
As Rohini Hensman said in the FeministsIndia e-list while discussing the issue of gender neutrality:
My mind goes to little 10-year-old Sonu who was sexually tortured and killed by the women who employed her. So according to our definition, women can quite easily rape a child or another woman, although Sonu's case would be covered by the new Child Sexual Abuse Act. In rare circumstances, like Abu Ghraib, women can even sexually assault men. In situations of mass violence like Gujarat, women can be part of the mob engaged in 'criminal solicitation' (the charge against those who cheered on the rapists in the film The Accused, which was based on a real-life gang-rape).
With the possible repeal of Section 377 on the cards, there is consensus among feminists ongender neutrality with regard to the victim, so that rapes of men, boys and hijras can be taken into account. Where the perpetrator is concerned, it is more complicated. The perpetrator is assumed to be generally male, but in cases of custodial rape or rape in the context of a clear power situation, gender neutrality is also being proposed by some feminists for the perpetrator. The JVC Report has considered separate types of sexual abuse/violence separately, such that in some kinds of sexual abuse the perpetrator can be gender neutral and in others, not.
This suggestion of gender neutrality for the perpetrator of sexual violence is very contentious within the feminist perspective, as the statement above reveals. The fear is that gender neutrality with regard to the perpetrator except in clearly defined situations such as custody/authority, and with regard to child abuse, will only further make women the target of the law rather than offering them protection, given our overwhelmingly patriarchal and sexist context.
The other question has to do with recognizing marital rape. Again, Rohini raised a question that has long troubled me – if a marriage is violent, that must be grounds for divorce, but what are we saying when we insist it be treated as a crime? Is it preferable for a woman to have a husband in prison than be divorced? Does the idea of marital rape as a crime in fact protect the institution of marriage?
Rohini put it this way:
It is one thing to say that marital rape should be regarded as an act of domestic violence and should be grounds for divorce – that should be relatively non-controversial. But given that marriage is a sexual relationship, should all cases of marital rape be punished with 7 years or more in jail? Consider the following scenario: A young woman and man are married off, and the same night she comes crying and complaining that her husband raped her. Should he be jailed for what is, from his point of view, merely consummating their marriage? Unless we are demanding very clearly that the state ensure that all marriages are consensual (are we? in which case, how?), then we can hardly demand that he should be jailed for years – that is simply inconsistent and unfair too. So we need to make it much clearer what we mean by 'recognition of marital rape' before we can argue for it convincingly.
Rohini's comments point to the inherent violence of compulsory marriage that grounds our society. In other words, criminalizing criminal rape rather than treating it as grounds for divorce may still leave "the impunity of the citadel" of marriage intact.
In a related press release, sex workers' organizations across the country (National Network of Sex Workers – India) too urged the President not to sign the Ordinance, raising a very crucial set of issues that have to do with criminalizing sex work. The statement strongly pointed out that 'Trafficking of Persons' was outside the purview of the specific terms of reference provided to the Justice Verma Commission in December 2012 and any recommendations relating to trafficking should not be included in the Ordinance:
The proposed Section 370 incorporated in the Ordinance cleared by the cabinet, conflates trafficking of persons and those who consent to sex work. At the heart of the problem is the newly worded Section 370 of the Verma Commission, which has been accepted in totality by the Ordinance. The Section deals with the offence of Trafficking of a Person. The term "exploitation" includes "prostitution" itself. This in essence means that all "prostitution" will now be interpreted as exploitation.
The Ordinance if accepted would criminalize people in sex work since the section does not differentiate between "coercive prostitution" and prostitution; nor does it talk about the "exploitation of prostitution".
The Verma Commission has wrongly interpreted the internationally recognized and existing explanation of exploitation (under the UN Protocol, 2000), which states "Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation". If the section is accepted, it would go against the commitment made by India which is a signatory to the Protocol and has ratified the UN Protocol in 2011.
The inclusion of voluntary and consenting sex workers into the definition of exploitation puts back the struggle waged by sex worker communities across India to ensure dignity for people engaged in sex work.
We are deeply concerned that this interpretation if accepted by the President of India will contradict the Hon'ble Supreme Court of India which has upheld the rights of women in sex work observing that Article 21 grants them a right to live with dignity.
If the section is accepted, it would go against the commitment made by India which is a signatory and has ratified the UN Protocol in 2011.
Feminism has for long seen prostitution as violence against women, and many feminists still do. However, a new understanding of the practice has emerged with the gradual politicization of people who engage in prostitution, and their voice becoming increasingly public. One of the key transformations that has come about because of this, is the emergence of the term sex work to replace 'prostitution'.
The understanding behind this is that we need to demystify 'sex' – it is only the mystification of sex by both patriarchal discourses and feminists that makes sex work appear to be 'a fate worse than death'. In fact, the preliminary findings of the first pan-India survey of sex-workers found that about 71 percent of them said they had entered the profession willingly. Hence the insistence of sex workers organizations on distinguishing between voluntary and coercive prostitution And to to conclude, a useful document – a release from the Ministry of Home Affairs that tabulates the recommendations of the JVC Report that were accepted in part/in full/ or rejected.
JUSTICE VERMA COMMITTEE RECOMMENDATIONS |
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ACCEPTED IN TOTO | ACCEPTED IN PART | NOT ACCEPTED |
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INDIAN PENAL CODE (1860) |
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| Section 354: Sexual Assault and Punishment for Sexual Assault –Entirely accepted | Section 100: Right to Private Defence – Inclusion of an acid attack u/s 326A was accepted only and the rest proposed was already existing in the IPC | Section 376A: Sexual by husband upon his wife during separation –Verma Committee wanted to delete it. Was retained by MHA as marital rape was not agreed to. |
| Section 354 A: Assault or use of criminal force on woman with intent to disrobe her –Entirely Accepted | Section 166A: Public Servant disobeying direction under law –Directions relating to crimes against women proposed to be made punishable upto only one year against the recommended five years as proposed by Justice Verma Committee. Rest accepted. | Section 376B (1): Rape of an Underage Person –Not accepted as the provision is in conflict with the PCSOA, 2012 |
| Section 354 B: Voyeurism –Entirely accepted | Section 326A: Voluntarily causing grievous hurt through use of acid etc. –Female circumcision proposed was not accepted. – Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted. Rest was accepted | Section 376 B (2)Punishment for causing death or a persistent vegetative state in the course of committing rape of an underage person –Death penalty was not recommended |
| Section 354 C (1): Stalking –Entirely accepted | Section 326B: Volutarily throwing or attempting to throw acid etc. –Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted. Rest was accepted | Section 376F: Offence of breach of Command Responsibility –Fixes vicarious criminal responsibility on the leader of a force for acts of subordinates. Not accepted. |
| Section 354 C (2)Punishment for stalking –Definition entirely accepted | Section 375 Rape –Gender Neutrality of the act was not recommended which was not accepted by MHA.The Bill criminalises the sexual activities between 16 and 18 years which the Verma Committee did not agree.Verma Committee criminalises marital non-consensual sexual intercourse which is not accepted.Rest of the recommendations were accepted. | |
| Section 370 Trafficking of a Person –Entirely accepted | Section 376 (1) Punishment for Rape –Payment of compensation to the victim was dropped. Rest of the recommendation was accepted. | |
| Section 370 A Employing a Trafficked Person –Punishment entirely accepted | Section 376 (2) Aggravated Rape –Payment of compensation to the victim was dropped. Rest of the recommendation was accepted. | |
| Section 376A (re-numbered as 376B) Sexual intercourse by a Person in Authority –Accepted in full | Section 376 (3) Punishment for causing death or a persistent vegetative state in the course of committing rape –Death penalty was preferred by MHA. Rest of the recommendation were accepted. | |
| Section 376C Gangrape –Accepted entirely | Section 376D Gangrape causing death or a persistent vegetative state shall be added:Death penalty was preferred by MHA. Rest of the recommendation were accepted. | |
| Section 376E Punishment for Repeat Offenders –Accepted entirely | | |
| Section 509:Repeal accepted as offences covered elsewhere | | |
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CRIMINAL PROCEDURE CODE 1973 |
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| Section 54A: Proviso to Section 54A regarding identification of arrestee by a disabled person –Accepted entirely | Proviso to Section 154Registration of an Offence – Provision to record evidence by police officer at the residence of the person reporting the offence.Mandatory videographing was not agreed to and converted to optional. | Section 39(1) Clause (vb) –Compel communication of information of offence relating to crimes against women to the nearest Magistrate –Not accepted as it is liable to be misused |
| Section 160:No male below 18 and above 65 years and woman or physically disabled shall be required to attend a Police Station. | Section 164 (5)(a) and (6)(b)Recording Statement by a Magistrate –Special assistance for mentally or physically disabled persons to be given by Magistrate.Statement of mentally or physically disabled person to be considered sufficient for examination-in-chief and cross examination.However mandatory videography not agreed to and changed to optional. | Section 40A: Intimation by the Panchayat member the communication of information of offence relating to crimes against women to the nearest Magistrate –Not accepted as it is liable to be misused |
| Section 198B: Cognisance of an offence u/s 376(1) when persons are in marital relationship | | Section 197(1) Sanction for Prosecution –No sanction would be required for prosecution of Judge or Magistrate or Public servant if accused of crimes against women.Not agreed to avoid false complaints |
| Proviso to Section 273:Recording of evidence of a victim below 18 years –Victim will not be confronted by the accused. Accepted in full | | Section 357(4)Compensation to victim –Payment of compensation of an amount adequate to meet atleast the medical expenses incurred by the victim. This is not acceptable as the compensation would be very low. The Bill has a better provision. |
| Section 327: Substitution of new offences defined for rape (376A, 376B, 376C, 376D) –Technical formality | | |
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THE INDIAN EVIDENCE ACT, 1872 |
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| Section 53A: Evidence of character of previous sexual experience not relevant in certain cases -Fully accepted | | |
| Section 114A: Presumption as to the absence of consent in certain prosecution for sexual assault –Fully accepted | | |
| Section 119: Dumb witness substituted by 'persons who are unable to communicate verbally –Fully accepted | | |
| Proviso in Section 146:Question regarding the moral character will not be put to the victim during cross examination –Fully accepted | | |
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ARMED FORCES (SPECIAL POWERS) ACT, 1958 |
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| | | Proviso to Section 6: No sanction would be required if the armed force personnel is accused of a crime against woman. |
This was first published at Kafila 
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