JOIN USOn February 1, with Parliament session less than three weeks away, a communiqué of the Home Ministry announced the ordinance to amend penal provisions against sexual violence.
On February 2, the Law Minister stated that government had adopted 90 per cent of the Verma Committee recommendations. Late evening on February 3, the President signed the hastily drafted ordinance. On February 4, the Finance Minster announced that the ordinance was only the first step and more would follow.
This ordinance draws in large measure on the Criminal Law Amendment Bill, 2012, already passed by the Lok Sabha and currently pending before the Rajya Sabha Parliamentary Standing Committee. The ordinance, in fact, regurgitates many of the provisions of this 2012 Bill, particularly provisions that are in direct contradiction to Verma report.
A notable feature of the ordinance is that it codifies many new sexual offences. Some crimes like stalking (354D IPC); stripping, disrobing and parading women naked (354B), voyeurism (354C), find mention for the first time in the penal code. The definition of sexual assault (375 IPC) is expanded to penalise all forms of penetrative sexual assault, thereby dislodging the primacy of the crime of peno-vaginal rape, as well as awarding protection to all persons, and not just women. The ordinance and the Verma Committee both detail these crimes in a continuum of sexual violence, with one marked distinction.
The ordinance describes both the accused and the victim as gender neutral, thus de-gendering the crimes of sexual assault, stalking, sexual harassment. The ordinance’s signal that the perpetrator of sexual violence can be a man or a woman denies the gendered nature of the violence and consequently negates the understanding of sexual assault as a crime of power and dominance.
Thus, the gain in the substantive definition of sexual crimes is more than offset by a sinister, almost insidious stroke that renders this enumeration insincere and meaningless. With the ordinance not deleting Section 377 IPC, which criminalises voluntary same sex activity, the gender neutrality of the victim is also rendered illusory.
Section 354 IPC extracts a heavy price for retaining gender specificity of the perpetrator and victim. It continues to describe the offence of molestation as ‘outraging the modesty of a woman’, perhaps a grim reminder that prejudice will take long to be expunged.
Facetious exercise
The retention of the exception to Section 375 IPC, that specifically outlaws sexual assault by a husband in marriage, reconfirms patriarchal control over sexuality, making the entire exercise even more facetious.
It is revealing that situations where persons and human bodies are viciously targeted, such as communal or caste conflicts, are not listed as aggravated sexual assault. The hastily drafted ordinance has some indefensible, in fact ludicrous formulations. Section 375 IPC that defines sexual assault and replaces the crime of rape has enough flaws.
Sample this, sexual assault under Section 375 (e) IPC, includes touching by a person of certain parts of the body of another person, without consent. This crime of touching entails the same severe punishment as sexual assault, i.e. a minimum of seven years or life imprisonment. Again, Section 354A IPC includes unwelcome physical contact as a form of sexual harassment, which attracts a minimum penalty of fine and a maximum sentence of five years. So, the ordinance not only duplicates offences but also awards different punishments for the same crime!
The mere listing of more sexual crimes will create neither deterrence nor convictions, unless the Gordian knot of impunity and bias is slashed. Survivors of sexual violence need enabling support structures to negotiate the legal system and live with dignity. No provision has been made for case workers, counselors, witness protection mechanism, funds for medical treatment and reparations.
The introduction of the doctrine of command or superior responsibility; the deletion of the statutory requirement of prior sanction for prosecution of public servants; and strict punitive consequences for non enforcement of law, are imperative to curb the culture of rampant impunity. The barriers of statutory immunities need to be replaced with layers of accountability.
To this the ordinance only pays lip service by inserting a toothless Section 166A. The ordinance does not advocate the Verma panel recommendation that the special immunities afforded by AFSPA must yield to prosecution for sexual assault of armed forces personnel, before the ordinary criminal court. The much-touted speed of court martial is no substitute for a trial before an independent court.
Given that there is a consensus that sexual violence can never be part of the discharge of duty of the army or other security forces, the army’s defiant opposition to even a partial amendment of AFSPA, makes it susceptible to the charge of institutional complicity in such crimes.
(The writer is a lawyer and human rights activist based in New Delhi.)
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