Last December, many ordinary Indians were shocked by the brutal gang rape of a 23-year-old student in a moving bus in Delhi. This incident immediately sparked off protests across the country and solidarity protests across the globe. The protests was not just about this one incident, but built up of anger against rape and violence against women that has become so commonplace in India today. In response to these protests, the government was forced to make changes to the existing laws against sexual assault and violence against women, which were totally inadequate to begin with and reflected the feudal patriarchal mentality of the Indian ruling class.
On 23rd January 2013, the Justice Verma Committee (JVC) appointed by the government, presented a 600-page report which had several progressive recommendations. It not only suggested amending criminal laws dealing with sexual assault, but also challenged some of the core patriarchal structures prevalent in India today. Instead of accepting these recommendations, the Congress led United Progressive Alliance (UPA) government promulgated an ordinance – Criminal Law (Amendment) Ordinance, 2013 on 3rd February (which was signed by the President) that has rejected or watered down most of the recommendations of the JVC.
Definition of ‘Rape’
The initial debate that sparked off from the Delhi gang rape was not just about women’s safety in the streets but also in the home, schools and workplaces The JVC report had made several recommendations that would have been considered radical if it had been passed and also addresses sexual assault as a form of establishing authority.
It recognizes, for instance, that rape is an act of domination and power and understood that one of the ways to reducing violence is to protect women’s rights through the guarantee that perpetrators will be punished. This would have required quite a few radical changes on how the outdated justice system functions today in India. But the UPA government (with its feudal mindset) in its ordinance has maintained the old system, which would instead protect perpetrators and people in powerful positions.
This can particularly be seen in the case of marital rape. The law in India does not recognize marital rape unless the victim is less than 16 years of age. The JVC has stated that a woman is not her husband’s sexual property and that he cannot force her to have sex with him. But the new ordinance has not taken marital rape into consideration at all.
Consent & Women’s Right to Control Their Bodies
The JVC also recognized that a woman has a right over her body and her right to choose her own partners, friends or spouses. But the ruling government ordinance has many clauses that go against this and still uses the backward, sexist wording like ‘outraging a woman’s modesty’ instead of using the terms like sexual assault or rape.
Since the JVC report had recognized a woman’s right over her body, it has redefined the meaning of consent, stating that unless a woman indicate a yes to sex by word or gesture, no one can say she has consented. Now the ordinance has accepted the change to the definition of consent, but it still clings on to various provisions that do not recognize women’s consent, such as in case of married women or those women who complain against powerful people.
The question of consent also arises with regards to people below the age of 18. The JVC has stated that 16-18 year old people do engage in consensual sexual activity, but the ordinance did not accept this either and terms any sexual contact between 16-18 year old people as rape! This shows a contradiction within the laws.
Review of ‘AFSPA’
JVC not only addresses the much needed change in laws, it also crucially addresses the issue of rape in police custody, under army detention and in conflict areas. The report recommends a 5-year imprisonment for police personals who fail to do their job with regards to filing of complaints and failing in their duty to investigate.
The JVC recommended that senior officers be held accountable if they order or knowingly allow their junior officers to rape or sexually assault women who are in police custody, as has been widely highlighted in the rape and torture of Soni Sori or Thangjam Manorama. The JVC crucially called for a review of AFSPA{{1}}, which openly encourages widespread use of rape as a weapon of war (without any chance of facing prosecution). These changes would have meant a radical shift to an extent. But this, like the progressive Justice Jeevan Reddy Committee report on AFSPA, has been completely ignored as the army was dead set against any change as regards to AFSPA.
Dealing with Victims of Sexual Violence
The JVC had called for changes in the medical examination of rape victims, which would have ensured sensitive medical care and removing the controversial two-finger test. It also requested more judges, more courts, faster trials and making sure the judicial procedure is gender-just. The ordinance however does not prohibit this particular medical test nor has the ordinance removing the ‘gender neutral’ clause in rape laws which gives the perpetrator the equal rights to file counter complaint against the victim!
With regards to making society safer for women, the JVC had recommended setting up rape crisis centers, housing for women facing violence and investment in safe and efficient public transport. The government has till date taken no such steps in helping creating a safe environment for women. JVC also speaks about rights of sexuality minorities, which as usual has been ignored once again.
Death Penalty & Castration for Rapists
JVC had decisively rejected death penalty and castration as punishment for rapists, which was one of the main demands put forward by several right wing groups. Ordinance while rejecting castration, has once again rehashed the possibility of invoking death penalty in case of rapes resulting in death of the victim.
It has been proven time and again that death penalty is no deterrent for the perpetrators in continuing to commit such heinous crimes. It could instead result in under reporting of such crimes and could even result in the victim getting killed to make sure that the victim does not testify against the perpetrator.
What Now?
While the government is supposed to introduce a new bill which is to replace the ordinance (which was meant to be temporary), the question once again is will the key recommendations of the JVC report be taken aboard? If past experiences is anything to go by, the answer is in the negative unless there is pressure from below towards implementing this.
It has been about 3 months now since the Delhi gang rape incident. Even though the JVC report is quite progressive compared to the existing laws, it can never truly address the issue of violence against women which is linked to the exploitation that is entrenched in the capitalist system. Sexual violence is very common, happens at all levels and has only increased in last period of neo-liberal reforms with cuts in government spending in the social sector.
It is time to re-launch the whole campaign once again, a campaign not only for the implementation of the Verma Commission report, but as a stepping stone towards building a movement of the Indian working people against this oppressive & exploitative system based on Capitalism and Landlordism. Only within a democratic socialist society will women achieve true liberation.
Aishwarya Ramji
(The writer is a Student Activist & member of Socialist Party (CWI-Australia), sister organization of New Socialist Alternative CWI-India)
[[1]] Armed Forces Special Powers Act. For articles on this, click on this link: Repeal AFSPA [[1]]