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 that emergency which 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 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, which recognised that sexual violence was about power, not sex. The Report removed sexual violence from the frame of ‘shame-honour’ and understood it in terms of women’s bodily integrity and dignity; and it sought to undo the many kinds of unbridled power and impunity that breed violence against women. The ordinance, instead, shores up the walls of patriarchal privilege and impunity.
It is true that the ordinance expands the definition of sexual violence, recognises stalking, acid-throwing, and voyeurism, and introduces more severe punishments. However, 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. 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 Government is needed in order to prosecute the accused. Justice Verma sought to challenge and change these in-built patriarchal assumptions and protective shields for the powerful that go against justice for women. The ordinance’s purpose seems to have been to prevent these patriarchal assumptions and protective shields from being swept away.
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 will mean that if a woman files a rape complaint against a man, he will be able to file a counter-complaint of rape against her!
The ordinance also does not respect the right of young girls between 16 and18 years to have sexual contact by their consent with male friends 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 youngsters.
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 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. The exclusion of marital rape and the lesser sentence for rape of a separated wife are shocking violations of the principle — upheld by Justice Verma – that the relationship or prior relationship of the accused with the victim will not serve as grounds to undermine the rape complaint or show leniency.
There is a deliberate attempt now, on the 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 marriage relationship to a greater extent?
One absurdity in the ordinance is 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 ordinance continues to provide a shield of impunity to the powerful. There are no provisions against candidates charge sheeted for sexual violence. The ordinance retains the requirement of ‘prior permission’ for prosecution of public servants/ judges/ magistrates/ army officers. Hence, no Ruchika Girhotra 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. 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.
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, the Justice Verma Report has stipulated a punishment of 5 years of 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, thus clearly sending a message of leniency out to the police.
The ordinance retains patriarchal language, continuing to call molestation as ‘outraging modesty.’ Not only does the ordinance 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 anti-women 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 adopted a thoroughly democratic and rigorous process, and came up with recommendations that showed the way to promoting women’s freedom, rights, and safety. Reason why there is a public outcry against this ordinance.
The Government’s position is that they have not ‘rejected’ any of the Verma Committee’s recommendations, but has 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 Justice 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 lakh of crores of tax giveaways to huge corporations.