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Sunday, February 3, 2013

Why the Govt’s Ordinance is an Eyewash and a Mockery of the Justice Verma Recommendations




By Kavita Krishnan

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 responsibility’ 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!Currently, let us remember that the Courts are reluctant even to give the minimum 7 year sentence for rape, and keep finding excuses to reduce it to as low as 3! Will the same Courts not become even more reluctant to convict, if conviction will mean death? 
  • 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.
We refuse to accept this eyewash! We demand full implementation of the Justice Verma Committee Report!    

We can defeat the Govt's ploy to dilute and subvert the JVC recommendations only by being on the streets and continuing to fight! 
Bekhauf Azaadi has called for a protest against the ordinance and demanding implementation of JVC on 4 Feb at 2 pm at Jantar Mantar. Please do join. There will be several other protest and campaign actions in the days to come, please do join each of them, and make sure the Govt does not get away with betraying our movement and the JVC Report.

10 comments:

  1. Ek aur TUKDA KARO Hindustan ka for "Women" only (Not for mother & Sister..... because they are not women as per IPC).......... And....All men in India are criminal as per Indian Constitution ... believe it or not ... this is hard TRUTH .... Men should fight for his own right .... not for women .... they have enough power to save herself ( If they Want to be safe ).... Lekin abki baar musalmano ki tarah ye aazadi mat dena ki jo yahan rahna chahe ......

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  2. Bait is to Entrap Someone with the glitter of Temptation,

    Verma has provided enough and more Glittering Baits to Women to make False Allegations Against Men.There is No Such Beautiful Life Ever-after after Making a False Accusation or Implication.

    What we do not recognise is that when someone is falsely implicated accused or sentenced, It invokes the carnal instinct of revenge which is enacted out usually according to statistics 3 times more gruesomely against the Oppressor by themselves, family, relatives, friends against the false accuser Immediately or in Future. There are cases where Revenge is Exacted after Many Years.

    Even more serious is when people know that when something terribly Unfair is meeted out to them they CURSE in the Distressed Emotions of Falsely being implicated and Believe me with thousands of Examples Curses Work just like Prayers do, You will find the Person who Falsely Implicated Someone to be Rotting either by Diseases, Accidents, Terrible Fights etc which is 10 times more Grave than the Punishment meeted out by the False Accuser against the Victim.

    Now Verma has provided the Glittering Bait of Veiling False Accusations to Thousands of Women who would Bite it to their Own Turmoil for Years to come.
    We Women should be at the Forefront AGAINST the Recommendations made by Verma and his Feminist Team because it will only serve to Increase Violence Against Us Women Exponentially. The Power of Change is in our Hands. Effective Gender Neutral Laws are the Only Answer.

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  3. This comment has been removed by the author.

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  4. To some extent point-wise my comments on above:
    1. sexual assault is a gender-neutral crime, govt. ordinance is correct to that extent
    2. there was deafening noise to demand reduction in juvenile age - then naturally adolescent sex will get criminalised. On a side note - even today consensual sex gets criminalised when a woman chooses to do so.
    3. on one hand you are concerned about false case in #2 above, but not here.. double standards!! On misuse of 498a even SC had to term it as "legal terrorsim". Marital rape is another step in that direction if gets defined in law
    4. Why have command responsibility only for rape and only for armed forces? Let's apply to all authorities n institutions. Starting with your organization, if anyone under the umbrella of AIPWA commits a crime, the secretary/president etc, should be jailed and tried as main accused!! Sounds good. I was infact completely shocked to see this reco coming from an ex-CJI, raises questions on ...
    5. society is already divided into castes/religion why create more special laws when the proposed steps itself can adequately punish a criminal
    6. AFSPA is actually a double speak from govt. By excluding this, govt. on hand tells that misuse of rape laws are rampant, while on other hand neither Verma panel nor govt. wants to take strong steps to kill false cases
    False cases are one of the main reasons why genuine victims get delayed justice, but why your org never fight to get that?? http://www.dailypioneer.com/home/online-channel/360-todays-newspaper/125062-fast-track-relief-from-false-rape-allegations.html
    7. your demand on death penalty is not clear. govt. already has included whole life term in ordinance, what more do you want? Next life?? I actually did not find mention of death penalty in the ordinance text as published by some media house - either they or I missed it.
    8. this one is crass mischief by govt, as the ordinance says policemen will be punished for not recording only those FIRs which relate to offences under sexual assault. Why? If a crime has prima facie happened, all such FIRs should be registered and punishment to police if not record any such FIRs. BTW, who will punish policemen, i.e. who will register FIR against police for not registering FIR??
    9. Tests are an area which should be made strong such that both real and false cases caught properly - not like the Bhatinda case!!

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  5. Q1 - How can one prove that the woman has consented for sex? Do you mean men should sign a contract everytime they want sex? Please explain.

    Q2 - You said a woman can't be accused of rape. Then what about perpatrators like the maid in Aundh, Pune who was caught red handed by his mother while she was sexually exploiting a 4 yr old kid? There are many women perpetrators hiding under gender biased laws. Why are you trying to save those culprits?

    Q3 - Why do you want to promote sex in teenagers? I do not know what Bajrang Dal is doing and saying they are doing it right, but why do you want to promote teenage sex? What will you say if the same sex is later termed as 'rape'? Will you save those boys?

    Q4 - If marital rape is applicable to men, same should be applicable to wife as well. There are equal number of women who batters their husbands physically and mentally. What about punishing those wives?

    Q5 - Why you want to bring in 'principle of command responsibility' here. Are you promoting anti national movement undercover your feminist movement? This has far reaching implication with our enemies utilising this opportunity heavily. Are you connected with them?

    Q6 - How can you equate one sided sexual violence cases with caste and communal violence as the nature and spread of such violences can't be matched?

    Q7 - Why you are trying to fool everyone by saying army officers or powerful rapists are not prosecuted? They have a separate process and their punishment may be severe compared to ours. There are many cases where such powerful people too were convicted.

    Q8 - So by punishing policeman what you tried to acheive. Even one year term is too harsh. There are many cases (recent Rajasthan one) where a harassment case was tried to be filed under rape. People like you severely protested to file a rape case whereas there was no rape. Why do you want to do that?

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  6. Really?I'm gonna be a proud male chauvinist from now.

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  7. Not sure why you have deleted my questions posted earlier here. Does that mean you do not have any answer for them or you just want to create blind faith in your movement and expect people to be mute spectators when their own country is looted. If you have answer, pls answer the following questions before you start your hooliganism again -

    Q1 - How can one prove that the woman has consented for sex? Do you mean men should sign a contract everytime they want sex? Please explain.

    Q2 - You said a woman can't be accused of rape. Then what about perpatrators like the maid in Aundh, Pune who was caught red handed by his mother while she was sexually exploiting a 4 yr old kid? There are many women perpetrators hiding under gender biased laws. Why are you trying to save those culprits?

    Q3 - Why do you want to promote sex in teenagers? I do not know what Bajrang Dal is doing and saying they are doing it right, but why do you want to promote teenage sex? What will you say if the same sex is later termed as 'rape'? Will you save those boys?

    Q4 - If marital rape is applicable to men, same should be applicable to wife as well. There are equal number of women who batters their husbands physically and mentally. What about punishing those wives?

    Q5 - Why you want to bring in 'principle of command responsibility' here. Are you promoting anti national movement undercover your feminist movement? This has far reaching implication with our enemies utilising this opportunity heavily. Are you connected with them?

    Q6 - How can you equate one sided sexual violence cases with caste and communal violence as the nature and spread of such violences can't be matched?

    Q7 - Why you are trying to fool everyone by saying army officers or powerful rapists are not prosecuted? They have a separate process and their punishment may be severe compared to ours. There are many cases where such powerful people too were convicted.

    Q8 - So by punishing policeman what you tried to acheive. Even one year term is too harsh. There are many cases (recent Rajasthan one) where a harassment case was tried to be filed under rape. People like you severely protested to file a rape case whereas there was no rape.
    Why do you want to do that?

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  8. What new will you achieve with new laws except giving new weapons of extortion in hand of women. Yesterday I saw you on news channel. You have no facts. Just you have one awnser that women are beaten. Why such hate against men? Think .......do something constructive for women welfare. And why shouldn't be there any law for fake rape and I have thought of a very good name for it-NIRLAZZA..

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  9. What new will you achieve with new laws except giving new weapons of extortion in hand of women. Yesterday I saw you on news channel. You have no facts. Just you have one awnser that women are beaten. Why such hate against men? Think .......do something constructive for women welfare. And why shouldn't be there any law for fake rape and I have thought of a very good name for it-NIRLAZZA..

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  10. I am willing to support this, provided men can get divorce based on "no sex" accusation. Women needs to prove she is ready for sex "willingly", otherwise she has to agree for divorce.
    If women can term any sex as rape and guy has to prove the consent, then I think keeping equality in mind, this is a fair demand. After all women are equal in every respect to men.
    PS: Why all of women activists are one or more of following:
    i) Divorcee (Some multiple times)
    ii) Spinster
    iii) Lawyers

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