A moment of triumph for women
The comprehensive reforms
suggested by Justice Verma and his colleagues will protect the right to
dignity, autonomy and freedom of victims of sexual assault and rape
Starting with Tarabai Shinde’s
spirited defence of the honour of her sister countrywomen in 1882, women’s
movements in India have been marked by persistent and protracted struggles. But
despite this rich and varied history, we have in recent weeks found ourselves
shocked at the decimation of decades of struggle.
A
transformation
At a time when despair and
anger at the futility of hundreds of thousands of women’s lifetimes spent in
imagining a world that is safe drive us yet again to the streets; at a time when
our daughters get assaulted in the most brutal ways and our sons learn that
unimaginable brutality is the only way of becoming men; at a time when we
wonder if all that intellectual and political work of crafting frameworks to
understand women’s subjugation and loss of liberty through sexual terrorism has
remained imprisoned within the covers of books in “women’s studies” libraries;
at a time like this, what does it mean to suddenly find that all is not lost
and to discover on a winter afternoon that our words and work have cascaded out
of our small radical spaces and transformed constitutional common sense?
The Report of the Committee on
Amendments to Criminal Law headed by Justice J.S. Verma is our
moment of triumph — the triumph of women’s movements in this country. As with
all triumphs, there are always some unrealised possibilities, but these do not
detract from the fact of the victory.
Rather than confining itself
to criminal law relating to rape and sexual assault, the committee has
comprehensively set out the constitutional framework within which sexual
assault must be located. Perhaps more importantly, it also draws out the political
framework within which non-discrimination based on sex must be based and
focuses on due diligence by the state in order to achieve this as part of its
constitutional obligation, with the Preamble interpreted as inherently speaking
to justice for women in every clause.
If capabilities are crucial in
order that people realise their full potential, this will be an unattainable
goal for women till such time as the state is held accountable for
demonstrating a commitment to this goal. Performance audits of all institutions
of governance and law and order are seen as an urgent need in this direction.
The focus of the entire
exercise is on protecting the right to dignity, autonomy and freedom of victims
of sexual assault and rape — with comprehensive reforms suggested in electoral
laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958,
and the provision of safe spaces for women and children.
Arguing that “cultural
prejudices must yield to constitutional principles of equality, empathy and
respect” (p.55), the committee, in a reiteration of the Naaz Foundation judgment,
brings sexual orientation firmly within the meaning of “sex” in Article 15, and
underscores the right to liberty, dignity and fundamental rights of all persons
irrespective of sex or sexual orientation — and the right of all persons, not
just women, against sexual assault.
Reviewing leading cases and
echoing the critique of Indian women’s groups and feminist legal scholars —
whether in the case of Mathura or even the use of the shame-honour paradigm
that has trapped victim-survivors in rape trials and in khap panchayats,
the committee observes: “…women have been looped into a vicious cycle of shame
and honour as a consequence of which they have been attended with an inherent
disability to report crimes of sexual offences against them.”
In terms of the definition of
rape, the committee recommends retaining a redefined offence of “rape” within a
larger section on “sexual assault” in order to retain the focus on women’s
right to integrity, agency and bodily integrity. Rape is redefined as including
all forms of non-consensual penetration of sexual nature (p.111). The offence
of sexual assault would include all forms of non-consensual, non-penetrative
touching of sexual nature. Tracing the history of the marital rape exception in
the common law of coverture in England and Wales in the 1700s, the committee
unequivocally recommends the removal of the marital rape exception as vital to
the recognition of women’s right to autonomy and physical integrity
irrespective of marriage or other intimate relationship. Marriage, by this
argument, cannot be a valid defence, it is not relevant to the matter of
consent and it cannot be a mitigating factor in sentencing in cases of rape. On
the other hand, the committee recommended that the age of consent in consensual
sex be kept at 16, and other legislation be suitably amended in this regard
Voices from conflict zones
Rights
advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and
other areas that have witnessed protracted conflict and communal violence have
for decades been demanding that sexual violence by the armed forces, police and
paramilitary as well as by collective assault by private actors be brought
within the meaning of aggravated sexual assault. This has been taken on board
with the committee recommending that such forms of sexual assault deserve to be
treated as aggravated sexual assault in law (p. 220). Specifically, the
committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the
requirement of prior sanction where the person has been accused of sexual
assault.
Clearly
a sensitive and committed police force is indispensable to the interests of
justice. But how should this come about? There have been commissions that have
recommended reforms, cases that have been fought and won, but impunity reigns
supreme. If all the other recommendations of the Committee are carried through,
will the government give even a nominal commitment that the chapter on police
reforms will be read, leave alone acted on?
The
Delhi case
The
recent gang rape and death of a young student in Delhi has raised the
discussion on the question of sentencing and punishment yet again. The first
set of questions had to do with the nature and quantum of punishment. Treading
this issue with care, the committee enhances the minimum sentence from seven
years to 10 years, with imprisonment for life as the maximum. On the death
penalty, the committee has adopted the abolitionist position, in keeping with
international standards of human rights, and rejected castration as an option.
The second question had to do with the reduction of age in respect of
juveniles. Despite the involvement of a juvenile in this incident, women’s
groups and child rights groups were united in their view that the age must not
be lowered, that the solution did not lie in locking them up young. Given the
low rates of recidivism, the committee does not recommend the lowering of the
age, recommending instead, comprehensive institutional reform in children’s
institutions.
The
report contains comprehensive recommendations on amendments in existing
criminal law, which cannot be detailed here except in spirit. The significance
of the report lies, not so much in its immediate translation into law or its
transformation of governance (although these are the most desirable and
urgent), but in its pedagogic potential — as providing a new basis for the teaching
and learning of the Constitution and criminal law and the centrality of gender
to legal pedagogy.
ALL THE CONTENTS HAS BEEN TAKEN FROM http://indialawyers.wordpress.com/2013/01/26/a-moment-of-triumph-for-women/
