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Anti-rape law : Gender 'unjust' ordinance

Dalip Singh, Feb 10, 2013:

The new ordinance amending criminal law may lead to more acquittals of the accused

Riot police fire water cannons at protesters in Kerala demanding the resignation of Rajya Sabha Deputy Chairman P J Kurien over allegations that he raped a schoolgirl 17 years ago.  The lawmaker was acquitted in 2005 but he has come under new pressure after the storm over the deadly gang-rape in Delhi in December.

On February 3, the UPA had put its best foot forward, pitching a combo of articulate lawyers-cum-ministers P Chidambaram and Manish Tiwari to convince people about the government wisdom in bringing an anti-rape ordinance that did not incorporate some important recommendations of Justice J S Verma Committee.

The ever-fumbling union home minister Sushilkumar Shinde was left out of the government show, despite his ministry having piloted the ordinance. Chidambaram used adjectives such as treating a “grave issue” of crimes against women with “utmost seriousness and sensitivity” to make people, especially women activists and critics, understand the advantage of promulgating an ordinance, which amends the law immediately, instead of having a bill that has to be passed by both the Houses of Parliament after discussion. 

But, not many are convinced with the Criminal Law (Amendment) Ordinance that the government brought in a haste, without addressing  crucial suggestions of Verma panel.


The suggestions, which Chidambaram said will be taken up later after due consultation, are: treating marital rape at par with rape, taking away the immunity that security forces enjoy of not being tried in a civil court of law if caught for rape or other human rights violations due to Armed Forces Special Powers Act applicable in conflict zones of Kashmir and certain areas of seven North-Eastern states, amending People’s Representation Act barring tainted politicians from contesting elections, and bringing in much needed police reforms. 

The women activists have already labelled the ordinance as “a piece of rubbish” and some of the faultlines in the law, missed by the government, have now caught attention of the courts.

 It appears that this is another attempt by the government to manipulate public opinion by serving half-cooked legislation designed just to ward off intense public scrutiny unleashed since the December 16 shameful gang-rape and fatal assault of a 23-year-old girl in a moving Delhi bus.

The UPA had tried the same trick to get off the hook, though temporarily, when they were pushed into a corner post mass mobilisation by activist Anna Hazare for almost a year since 2011 to establish an effective Lokpal against big ticket corruption.

Though the government had moved Lokpal and Lokayuktas Bill, 2011 in the House, it was referred to a select committee of Parliament for giving it more teeth after much hue and cry. And just about a week back, the Union Cabinet cleared some amendments to the refurbished Lokpal bill, but it is still not to the satisfaction of activists such as Anna Hazare and political parties, including the BJP. 

In the case of Lokpal too, the government had come up with the same argument that sensitive and contentious issues need deliberaton for bringing comprehensive law, but the long time they are said to have purposely taken, petered out the sharpness of subaltern voices on the important issue.

Now, in the case of the ordinance against sexual offences too, the government attempted to confuse people by taking in part suggestions from Verma Committee and the Criminal Law (Amendment) Bill pending before the Parliamentary standing committee on home affairs, and still it is far from being a comprehensive legislation, leading women’s activist Madhu Mehra told Deccan Herald.

“It’s a piece of rubbish. The ordinance is not designed to improve the situation. It’s rigged with howlers.  For instance, the government’s attempt to define rape as gender neutral ‘sexual assault’ can lead to awkward scenarios as the government is confused between penetrative acts and non-penetrative acts such as touching body,” Mehra stated, listing one of the many problems with the ordinance. 

Incidentally, Verma panel was against changing the definition of rape to sexual assault.
Other activists like Vrinda Grover and Kavita Krishnan, secretary of All India Progressive Women's Association, too believe that the ordinance was a “complete betrayal of the people's faith” and questioned the lack of transparency shown by the government in pushing the new law.

Insisting that the government should have brought a comprehensive legislation, Mehra is sceptic about the outcome of the ordinance. The lawmakers have merely defined new forms of sexual assault and enhanced punishment, which would only lead to acquittals.

“If the judges are not able to give reduced punishment according to the gravity of offences committed, they will acquit the accused, which is the trend the worldover,” she argued. There are several SC judgments throwing out petitions as the judges felt that it would not lead to conviction.

Though the Verma Committee was against death penalty for rape, the ordinance provides for capital punishment in cases of rape leading to murder or reducing victim to a vegetative state.

Another provision of the ordinance on making accused foot the medical bill of victims of acid attack, which has now been made an offence, has also drawn the ire of not only activists but the Supreme Court as well. As per 326 (A) provision introduced in the IPC, the punishment for acid attack is ten years to life along with a fine extending up to Rs 10 lakh to be borne by the offender. 

Hearing a petition, the SC judges wanted to know from the government what if the accused is not in a position to pay, then who will foot the medical bill.  The activists charge that the government has abdicated its responsibility of taking medical care and rehabilitation of the victims by passing the buck to the accused.

The Delhi High Court is also going to hear a petition for making marital rape an offence at par with rape as suggested by the Verma Committee. This provision has been ommitted in the ordinance, as the government said it needs more discussion. Sexual assault by husband on wife during separation is an offence under the IPC but the punishment has been enhanced from two years to up to seven years.

A government officer who deposed in favour of making marital rape an offence before Verma panel told the Deccan Herald that this should be incorporated as a futuristic law since there are many men who force themselves on their wives without her consent. “Sex even among married couples is an exhibition of love. But, if that does not happen out of will of both the partners, it becomes a painful experience for women,” the officer argued, preferring anonymity.

Besides, on Verma panel’s view that immunity security forces deployed in conflict zones enjoy under the AFSPA should be withdrawn in rape cases and the accused personnel should be treated like any other accused under the civil laws, the government said it will have to consult stakeholders like Army and paramilitary forces before taking a call on it.

Srinagar-based legal and human rights activist Pervez Imroz expressed surprise at the government reluctance to amend AFSPA. “It is difficult to understand how rape can be protected under AFSPA. In fact, if the cover is removed, it will bring accountability in the armed forces,” he said. 

Giving an example of how it can be counter productive, Imroz said that the Jammu and Kashmir human rights commission has asked the government to re-open the 1990 mass rape of women in Posh Kunanpora by Rashtriya Rifles men since the accused have walked free.

Welcoming the suggestion, he recalled that it was then Chief Justice of India J S Verma-headed bench in SC which had upheld the legal validity of AFSPA.

The contempt of the political class towards bringing in police reforms which remains central to not only implementing laws but inspiring confidence of the people, can be assessed from the fact that only 15 states, excluding states like UP, Maharashtra and Union Territory Delhi, have formulated their own Police Act – one of the suggestions of the SC on former UP DGP Prakash Singh’s PIL in 2006. 

The union home ministry too, which is equally culpable, has not brought a model Police Act for others to emulate.

Interestingly, the government is not uttering a word to clarify its position on  barring politicians guilty of crimes against women from contesting elections or remaining in office.

The double standards of the government is visible from its silence on Rajya Sabha Deputy Chairman P J Kurien, who is facing allegations in the 17-year-old Suryanelli gang-rape case.

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