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India : The ordinance amending law on sexual violence does not reflect any concern for women

This is a government in a hurry. It wants to demonstrate that it is responsive to people’s demands. It claims credit for appointing the Justice Verma Committee within days of the horrific 16 December 2012 gang rape of a young woman in Delhi. But no credit is due to it for the speed with which the Verma Committee produced its path-breaking report despite the lack of adequate logistical support and cooperation from government departments. And now, well before people could digest the important recommendations of the Verma Committee, the government has pushed through an ordinance amending the criminal law. Union Finance Minister P Chidambaram claims the ordinance was in response to “a universal demand that the laws must be amended immediately”. While the Verma Committee did recommend promulgation of an ordinance, how many such “universal demands” has the government responded to with such alacrity in the past ?

If one looks at the contents of the Criminal Law (Amendment) Ordinance, 2013, signed by the President of India on 3 February, it is clear that the intention is not a serious consideration of the Verma Committee’s recommendations, but an easy route to satisfy the growing response for “action”. While no one, least of all women’s groups, want the government to sit on the Verma Committee report and let it gather dust, as do most such reports, the need for an ordinance such as the one promulgated by the government is unjustified on every count barring populism.

The real story behind the ordinance is what the government has chosen to include, what it has chosen to exclude and what it has rejected of the Verma Committee recommendations. Take the issue of the substitution of the term “rape” with “sexual assault”. The Verma Committee went into a detailed argument, looking at this issue from the perspective of several other countries where a similar debate ensued, and concluded that the term “rape” should not be left out entirely even if the definition is expanded to include other forms of sexual assault. Similar arguments have already been placed by women’s groups before the government in the run-up to the formulation of the Criminal Law (Amendment) Bill, 2012, which was tabled in Parliament as recently as 4 December 2012. Despite this, the government has chosen to unilaterally substitute the term “rape” with the gender-neutral term “sexual assault” even as it has included many more forms of sexual assaults under this provision in the law. What is the justification for such arbitrariness on an issue that requires greater reflection ?

Then take the issue of public servants and members of the police and the armed forces being charged and tried for sexual assault. The ordinance has enhanced the minimum term of imprisonment to 10 years going up to life for anyone in these categories convicted of sexual assault. Yet it has chosen to ignore the Verma Committee’s specific recommendation that the immunity granted to members of the armed forces under the Armed Forces (Special Powers) Act (AFSPA) be removed because “women in conflict areas are entitled to all the security and dignity that is afforded to citizens from any other part of the country”. By deliberately ignoring this recommendation, it is clear that the government has failed to comprehend and accept the central argument of the Verma Committee report – that rape is a crime in all circumstances and that exceptions cannot and should not be made if we believe women have the same human rights as men.

The government has also ignored the committee’s recommendations on the khap panchayats and on honour killings. It has however included in the ordinance much of what was recommended about acid attacks, stalking and other forms of harassment as well as trafficking.

The most significant addition in the ordinance is the quantum of sentencing for these sexual crimes. The Verma Committee has put forward a reasoned argument for enhancing the quantum of punishment but it is most persuasive on why the death penalty should not be included. It has argued, as have women’s groups, that this will lower the already low levels of conviction. It has supported its arguments with views and judgments from many different countries. Despite this, the government has chosen to add the death penalty for sexual assault where the victim either dies or is left in a vegetative state and for repeat offenders. It is evident that this is a populist move to respond to the high decibel demands amplified by the media, following the Delhi gang rape, for the death penalty. The existing Criminal Law (Amendment) Bill, 2012 that is already in Parliament does not recommend the death penalty. Why was it so necessary to include this in the ordinance ?

On top of the other exclusions, this addition makes it amply clear that the government is concerned more about its ability to survive the next election than whether the criminal justice system works for the increasing number of women being sexually assaulted. Yet again, populism has replaced reason, and the pretence of “action” has precluded debate.

Les opinions exprimées et les arguments avancés dans cet article demeurent l'entière responsabilité de l'auteur-e et ne reflètent pas nécessairement ceux du CETRI.