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.