#India – Crimes of exclusion in the new Law #LGBT


Siddharth Narrain : Fri Mar 29 2013, IE

It is anger on the streets that brought the neglected issue of sexual violence back to the forefront, energised a government-appointed committee to put together clear and well reasoned recommendations on law reform and forced the government to table the Criminal Law (Amendment) Bill, 2013. It is public pressure and years of struggle by the women’s movement that is reflected in the more progressive parts of the bill, passed recently by both Houses of Parliament. Unfortunately, despite unanimity across large sections of society that the definition of rape cannot be restricted to an outdated understanding of rape as perpetrated by men on women, the version of the criminal law bill that was finally passed by Parliament retains this language. In this form, the law is a betrayal of the rights of millions of transgender persons, intersex persons and sexual minorities not born as women.

The current bill is contrary to the recommendations of the Justice Verma Committee report, the most comprehensive document on rape law reform in recent times. The Justice Verma Committee had heard a number of women’s rights and LGBT rights activists before framing their nuanced recommendation that the law on sexual assault and rape be gender inclusive as far as the victim/survivor is concerned and gender specific as far as the perpetrator is concerned, except for specific offences like custodial rape, where traditional gendered power dynamics could be overturned. Based on this understanding, the committee suggested that the term “person” be used for the victim/survivor of rape and sexual assault, replacing the term “woman”, and the term “man” be retained for the perpetrator of sexual assault except in a few specified offences.

This simple change in language would have brought under the purview of the law the numerous cases of transgender persons and men who are raped and sexually assaulted by men. This move would have recognised decades of struggle by the transgender community in documenting these abuses, including the pioneering 2003 report of the People’s Union for Civil Liberties (PUCL), Karnataka, on human rights violations against the transgender community. The report documented horrific and widespread instances of sexual violence against the transgender community in Bangalore. It observed that the brutal stories of abuse and sexual violence documented in it were really narratives of cruelty, causing trauma to the entire community and negating the constitutional claim of equal citizenship and protection for all.

It is the claim to equality that the Justice Verma Committee relied on when it stated that all sexual identities, including transgender communities, are entitled to be totally protected. The committee observed that the Constitution enables the change of beliefs and greater understanding, and is an instrument to secure the rights of sexually despised minorities. This followed from the committee’s understanding that the problem of sexual violence is not just one of penology, but is related to the constitutional guarantee of the right to equality. It is this same claim of equality that the Delhi High Court recognised in 2009 when it decriminalised homosexuality. Keeping in mind the violence faced by LGBT persons by both the police and non-state actors, the court read the right to non-discrimination in Article 15 of the Constitution widely, holding that the purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for not being in conformity with the generalisations concerning “normal” and “natural” gender roles.

It is deeply disturbing, then, that the government, ignoring the Justice Verma Committee recommendations on this point, has deemed it fit to retain the gender specificity of the victim/survivor, thus excluding the lived experience of violence of all those who are not born women. The pioneering feminist Susan Brownmiller, in her groundbreaking work on sexual violence, Against Our Will, written in the early 1980s recognised that sexual assault could hardly be restricted to forced genital copulation, nor was it an exclusively male-on-female offence. More than 30 years later, we must ask this question of our lawmakers and those reluctant to equate the sexual violence experienced by women with that experienced by transgender persons, men and sexual minorities not born women: Who is to say that the sexual humiliation suffered by transgender persons and men, and by those intersex persons and sexual minorities not born women, is a lesser violation of the personal, inner space, a lesser injury to mind, spirit and sense of self?

 

The writer is a lawyer with the Alternative Law Forum, Bangalore

Dear Sisters (and brothers ?) at Harvard #mustread #Vaw #justiceverma


FEBRUARY 20, 2013

Letter from some Indian feminists to their siblings at Harvard

We’re a group of Indian feminists and we are delighted to learn that the Harvard community – without doubt one of the most learned in the world – has seen fit to set up a Policy Task Force entitled ‘Beyond Gender Equality’ and that you are preparing to offer recommendations to India (and other South Asian countries) in the wake of the New Delhi gang rape and murder. Not since the days of Katherine Mayo have American women – and American feminists – felt such a concern for their less privileged Third World sisters. Mayo’s concern, at that time, was to ensure that the Indian State (then the colonial State) did not leave Indian women in the lurch, at the mercy of their men, and that it retained power and the rule of the just. Yours, we see, is to work towards ensuring that steps are put in place that can help the Indian State in its implementation of the recommendations of the Justice Verma Committee, a responsibility the Indian State must take up. This is clearly something that we, Indian feminists and activists who have been involved in the women’s movement here for several decades, are incapable of doing, and it was with a sense of overwhelming relief that we read of your intention to step into this breach.

You might be pleased to know that one of us, a lawyer who led the initiative to put pressure on the Justice Verma Committee to have a public hearing with women’s groups, even said in relief, when she heard of your plans, that she would now go on holiday and take a plane ride to see the Everest. Indeed, we are all relieved, for now we know that our efforts will not have been in vain: the oral evidence provided by 82 activists and organizations to the Justice Verma Committee – and which we believe substantially contributed to the framing of their report – will now be in safe American hands!

Perhaps you are aware that the Indian State has put in place an Ordinance on Sexual Assault that ignores many recommendations of the Justice Verma Committee? If not, we would be pleased to furnish you a copy of the Ordinance, as well as a chart prepared by us, which details which recommendations have been accepted and which not. This may be useful in your efforts to advise our government. One of the greatest things about sisterhood is that it is so global, feminism has built such strong international connections – such that whenever our first world sisters see that we are incapable of dealing with problems in our countries, they immediately step in to help us out and provide us with much needed guidance and support. We are truly grateful for this.

Perhaps you will allow us to repay the favour, and next time President Obama wants to put in place legislation to do with abortion, or the Equal Rights Amendment, we can step in and help and, from our small bit of experience in these fields, recommend what the United States can do.

Vrinda Grover (mere lawyer)

Mary E. John, Senior Fellow, Centre for Women’s Development Studies, New Delhi

Kavita Panjabi, Professor of Comparative Literature, Jadavpur University, Kolkata

Shilpa Phadke, Assistant Professor, School of Media and Cultural Studies, Tata Institute of Social Sciences, Mubmai

Shweta Vachani, Senior Editor, Zubaan

Urvashi Butalia, Director, Zubaan

And many others.

#India- The Criminal Law Ordinance on Sexual Assault – Cut, Paste and Shock #Vaw #womenrights


 #India- Chastity, Virginity, Marriageability, and Rape Sentencing #Vaw  #Justice #mustread

FEBRUARY 5, 2013

Guest post by PRATIKSHA BAXI 

Once the Criminal Law Ordinance 2013 was uploaded, circulated and read many times, an overwhelming desire to mark the ordinance to all one’s students as an example on how not to frame laws has grown. Yet, explain one must, why the current law on sexual assault is so bizarre, even if we do not bring in the so-called controversial elements and keep to the text of the ordinance.

The Criminal Law Ordinance 2013 begins with the definition of sexual assault as a gender-neutral offence. It does not make an exception to state that women do not rape men in everyday contexts under s. 375. Since such an exception is not added, and the ordinance specifies that ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault’, we are faced with a confounding and deeply misogynist legal consequence. Wives, we are told cannot prosecute husbands for sexually assaulting them. But since sexual assault is gender neutral without any exceptions and the marital rape exemption is not extended to husbands, now husbands can accuse wives of sexual assault but wives can never prosecute husbands for sexual assault!

To retain the marital rape exemption strikes at the heart of women’s bodily autonomy and integrity. However, to limit the exemption to wives, and allow husbands the legal remedy to file criminal complaints against their wives on the ground of sexual assault is absolutely absurd, if not totally misogynist.

The Justice Verma Committee (JVC) report had come up with a clear formulation of rape and sexual assault. Rape in everyday contexts was not gender-neutral viz., perpetrators. It specified perpetrators of rape as men, and identified victims as gender plural (any person irrespective of gender or sexual orientation). In the instance of sexual assault, gangrape and aggravated rape [under s. 376 (1) & (2)], were constructed as gender-neutral offencesviz, perpetrators and victims. Furthermore, the marital rape exemption was deleted and it was recommended that marriage should neither be the basis for presuming consent nor should any third person than wife be allowed to lodge such a complaint (to address the misuse issue). In everyday contexts, especially in intimate relationships and marriages, this definition is sensitive to the power dynamics between men and women; while recognising that in prisons, police stations, custodial homes, hospitals, in fiduciary relationships and gang rape women may be perpetrators. It is critical to understand why this definition is important breakthrough in the debates on gender neutrality so far. This definition not only recognises the bodily autonomy of women but also recognises the bodily integrity of men (irrespective of sexual orientation or gendered identity) and transgendered persons. It does not split the victims into distinct categories based on identity and therefore avoids the medicalization of sexual identity. Given the heated debates on gender neutrality, the JVC managed to define rape as a crime of patriarchy, which is not limited to women as victims, although women have predominantly the target of sexual violence.

Some may argue that this definition still leaves out certain forms of violence, which find place in intimacy of a same sex relationship, or essentializes women. But remember, the JVC does not recommend the deletion of s. 377 IPC, nor do other forms of criminalisation of same sex relationships find redress. For instance, Modi (2011) describes lesbianism as tribadism and says “lesbian women can be so morbidly jealous of such woman with who they are inverted in love, that they are sometimes incited to commit even murder” (Modi 2011:684). These are statements of prejudice, which construct lesbians as a “criminal type”. And these find no redress.

The Criminal Law Ordinance 2013also juxtaposes gender neutrality with the retention of s. 377 IPC. To retain unnatural sexual offences in the IPC means to blur the distinction between consent and lack of consent, to validate the damning judicial discourse on sodomy and validate heterosexist bias against sexual minorities. Not to include the repeal of s. 377 in the ordinance, just because the JVC does not do so, and even though the 172nd Law Commission recommended such a deletion in 2000 is a scandal. It is unintelligible since s. 377 IPC characterises sexual assault as unnatural sex and does not allow any person to consent to “unnatural” sex. If the prime concern is with expanding the definition of consent; and ensuring bodily autonomy or providing protection from sexual assault to all persons, naming the experience of sexual violence as unnatural sex, or calling consensual sex, unnatural is illogical, if not ideologically violent.

Further, sexual assault is defined without any gradation of different offences, in terms of severity of violence or the nature of violence. Section 375 (a-c) defines as sexual assault as the penetration of bodily parts or other objects into bodily orifices without consent. Section 375 (d) holds that a person commits sexual assault if s/he ‘applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person’ without consent. Section 375 (e) holds that when any person ‘touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person’ without consent, it amounts to sexual assault[note that the cut and paste job, evident from the word “he” to designate the perpetrator]. These are all forms of sexual assault “except where such penetration or touching is carried out for proper hygienic or medical purposes”.

The use of the word hygienic is totally mysterious, and dangerous—since it allows a crafty defence lawyer to convert the experience of sexual assault into a sanitized lesson in hygiene. Further, to allow penetration for medical purposes and not even minimally mention that a doctor must take the informed consent of the person prior to penetrating or touching is violative of elementary medical ethics. Nor does the ordinance delete the two-finger test. Therefore what it does is, it permits the insertion of two fingers in the survivor’s anus or vagina for medical purposes without seeking the consent of the survivor, which even Modi’s first volume on medical jurisprudence and toxicology would not advocate. The JVC recommends the prohibition on the two-finger test and introduces a whole new chapter on what kind of medical protocol should be introduced to deal with rape survivors sensitively. Rather than moving towards a therapeutic jurisprudence, the ordinance re-inscribes the two-finger as a medical procedure, disregarding what Modi says in the early days of colonial medicine, that a doctor should never insert two fingers in the vagina without consent lest he be accused of sexual assault!

To unravel the costs of cut and paste jurisprudence, we must note that the consequences of clubbing together different forms of sexual assault in the same sentencing structure. Hypothetically speaking, if a person is convicted of an offence under section 375 (e) which holds that when any person ‘touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person’ without consent twice, then such a person could be sentenced to life (natural life) or even death. Assuming such an accused is tried by a “hanging” judge, you have a situation where there is no gradation made between different kinds of sexual assault in relation to severity and nature, viz., sentencing. What is to prevent more severe punishment to a hijra, found to be a repeat offender, given the colonial legacy of charactering certain kinds of bodies as “criminal types”? There are no provisions to provide fair treatment to, and prevent stereotyping of sexual minorities or women in the sentencing structure.

The only instance where such gradation viz., sentencing is maintained is in relation to marital rape. Hence, section 376B IPC holds that ‘whoever commits sexual assault on his own wife, … shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine’. The ordinance is clearly protection of husbands, even those husbands who rape their ex-wives. This is also evident in the section,describing repeat offenders, which clearly excludes husbands.

Section 376E holds ‘whoever has been previously convicted of an offence punishable under section 376 or section 376 A or section 376 C or section 376 D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life or with death’. So the ordinance is clear that whoever else may get life imprisonment till s/he dies in prison or is hanged by the state, a husband should never be jailed for life or hanged. But the irony is, if a man accuses his wife of sexual assault, and if she is found to be a repeat offender by a court, she is liable to life or death penalty. One may argue that this is far fetched for why would a woman live with a man who has accused her of sexual assault but technically what this ordinance does, it makes wives vulnerable to sexual assault charges by their husbands and exposes them to prison sentences, if not death.

The cut and paste job gets even more bizarre for the JVC recommendations are added to s. 354 IPC rather than displacing the colonial law on outraging modesty. Section 354 (a) describes sexual harassment (gender neutral offence), section 354 (b) describes any person forcibly disrobing a woman, section 354 (c) describes voyeurism (victim is woman here) and section 354 (d) describes stalking (gender neutral). And section 509 IPC, which should be made redundant is retained.

It does not make sense to retain the idea that something amounts to violence only when the modesty of women is outraged, and not the bodily integrity of all women, irrespective of modesty. This is the point behind deleting the past sexual history clause and fighting against the characterisation of survivors as habitués: please do not judge women by whether or not they are modest. What we wear, who we sleep with, where we go, what work we do—is not relevant to proving sexual assault.

And then mistakes of an exhausted and overwrought JVC find their way into the ordinance, yet another cut and paste jurisprudential disaster. In s. 370, which describes trafficking, we are told that:

“The expression “exploitation” shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs.”

The JVC possibly forgot to add the words “exploitation of” prostitution, while mistakenly dictating the UN protocol 2000, going against the UN Protocol signed in 2011. The trafficking clause, due to exhausted dictating, criminalises all forms of sex work, including in trafficking voluntary and consenting sex workers who are now unionised and been fighting for right to live with dignity. This provision has been enacted in the name of fighting sexual assault—and is totally unacceptable. Perhaps the JVC should issue an erratum—and re-publish its 650 pages after careful proof reading!

What may one say about the absences—those are too many to list! We wanted radical jurisprudence, to emerge from our protests and unending hard work (and unlike others, we don’t need anyone to applaud us). Instead, what we got is amortifying cut and paste jurisprudential disaster. We cannot sleep tonight, wonder how the Ministry of Law finds sleep tonight!

Pratiksha Baxi is Assistant Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University

PRESS RELEASE-Oppose Selective Manner in Implementation of Justice Verma Committee Recommendations #Vaw #discrimination #disability


 

National Platform for the Rights of the Disabled

4, Ashoka Road, New Delhi 110 001

 

February 4, 2013

Press Statement

 

The National Platform for the Rights of the Disabled condemns the opaque manner in which the Government has introduced an Ordinance to give effect to some of the amendments recommended by the Justice Verma Committee, to the law governing sexual offences, despite opposition from women’s organisations and some political parties.

 

The Justice Verma Committee had recommended a range of amendments to the criminal law, in order to protect the rights of women against sexual violence. The Committee recommended a number of amendments to the substantive and procedural law specifically addressing the needs of disabled victims of sexual assault. The Ordinance introduced by the Government has included a few of these changes:

 

·        The disabled may not be required by the Police to go to any place other their residence in relation to investigation

·        Specific provisions for the disabled in Test Identification Parades for identifying the accused

·        Assistance to be provided to the disabled while recording statement before the Magistrate and such statement to be considered adequate for the purpose of examination in chief during the trial

·        The phrase ‘dumb witness’ in Section 119 of the Indian Evidence Act has been replaced with ‘persons who are unable to communicate verbally’

 

While these are indeed important changes in the law, which could positively impact the experience of persons with disabilities while dealing with the legal system, we feel the changes are piecemeal in nature and do not address the more substantive concerns that both women’s organisations and disability groups had expressed.

Making the offence of sexual assault gender neutral would harm disabled women disproportionately. There is a widespread belief that disabled women are unable to control their sexual urges and hence make sexual advances on men, who are then wrongly charged with sexual offences. Our experience of handling cases of sexual assault on disabled women shows that even the police and heads of institutions share this belief, and hence do not take steps against the wrong doer. Making sexual offences gender neutral with respect to both the victim and perpetrator would result in situations where the male assaulter would be able to file counter-allegations of sexual assault against the disabled women, which would add to their further victimization.

The NPRD expresses its strong opposition to the selective manner in which the Government has incorporated the recommendations of the Verma Committee into the law. Since Parliament is scheduled to begin its next session shortly, it is inexplicable why the Government should resort to the Ordinance route, in a non-transparent and undemocratic manner, keeping key stakeholders in the dark.

 

#India-The Official Emergency Continues – The Ordinance on Sexual Assault #Vaw


FEBRUARY 3, 2013

Guest post by PRATIKSHA BAXI,

The reform of rape law, which was not a priority for more than two decades, seems more like a 20-20 match now. The spectacle of judicial reform has all the elements of cinematic imagination built into it—violence, voyeurism, repression, tears, scandal, redemption and betrayal. We are all consumers and participants of this judicial spectacle. We veer between manic hope and dark despair as we are left conjecturing how this theatre of judicial reform will enact equality and dignity for survivors of sexual assault. The latest twist in the tale is the introduction of an ordinance, following the Justice Verma Committee (JVC) report.

We are told that the government decided to formulate an ordinance to address sexual violence as an emergency. Strangely enough the text of the ordinance has been kept a secret, other than the press release ostensibly released by the government, hence we can only comment on the series of statements made to the media. It is claimed that the JVC report informed this ordinance, which collates the “uncontroversial” elements in the JVC and the Criminal Law Amendment Bill2012. The ordinance will become the law perhaps on Monday if the President signs it. Until the parliament meets, the ordinance will define sexual assault.

The government accepted the JVC’s demand that their recommendations should be incorporated immediately as an ordinance. In fact Justice Verma on Times Now said that the non-controversial aspects of their recommendations should be immediately passed as an ordinance. To quote Justice Verma, “but there are many things which we have said which have been talked of for sometime and there are no two opinions. Now where is the difficulty in promulgating an ordinance to implement them straight away because that is not something which need to await a debate in the Parliament”.

The self-construction of the JVC as a manifesto of the peoples’ movements against sexual violence, including the women’s movement and the positioning of the members of the JVC as “heroic” for having finished the report in 29 days should have signalled to us that an ordinance would be scripted as the outcome of this committee. So why are we surprised that there is an ordinance? And why critique the ordinance? Is it not reasonable that some of the elements of a progressive legislation should be enacted now such as the provisions on acid attack, stalking, voyeurism, and trafficking until a more comprehensive law can be crafted in the parliament? Why should an acid survivor not benefit from this new law—presuming that the state will spend enough money publicising the ordinance to every thana and hospital for three weeks? 

One could argue that the opposition is not to recognising that sexual violence is an emergency that women experience everyday rather the important question is what is recognised as an emergency, and when.

  1. In the ordinance, the retention of the marital rape exemption is not seen as an official declaration of permanent sexual emergency for married women.
  2. The rape of women by security agencies, a state of permanent sexual emergency, continues to need sanction for prosecution from the government.
  3. Those politicians charged with rape will continue to wield power to uphold states of sexual emergency for women.
  4. Those who are in positions of power and authority to stop mass sexual violence suspend law to allow unimaginable and targetted sexual and reproductive violence are not seen as criminally authoring and authorising states of sexual emergencies.
  5. The ordinance does not recognise the states of emergencies declared against young people who choose to marry against social norms of caste, community and religion.
  6. The ordinance does not recognise that each medical examination of a rape survivor is experienced as a re-rape; and that this is an emergency.
  7. The routinized violence on dalit women, such as stripping and parading especially of those who are punished for transgressing caste hierarchies is not seen as a state of emergency.

The ordinance ascribes blame to women for creating states of sexual emergencies when it proposes a gender-neutral sexual assault law implying that women, like men, sexually assault adult persons, including men in everyday contexts! It appears that the ordinance does not create an exception to make manifest that women do not rape men. Rather dishonestly the ordinance blames women for the sins of men—by positioning them as perpetrators of sexual assault of men in everyday contexts. This creates the possibility of further criminalising women’s lives. There is proof of such criminalisation under existing laws, which are gender specific viz, perpetrators.

According to the Delhi government statistics on the profile of female prisoners in the Tihar Jailthere is increase … in rape cases by 2.47%

During 2011, as per NCRB statistics 766 women were arrested under s. 376 (rape) IPC, 1698 women arrested on the grounds of molestation (s. 354 IPC) and 193 women on grounds of sexual harassment (under s. 509 IPC). In 2011, 43 women inmates died, amongst whom eight women committed suicide in jail. Does the government have any explanation for why the police arrested more than 700 women under s. 376 IPC?

When women’s groups oppose gender neutrality viz., including women as perpetrators, one predominant concern has been the manner in which the police misuse the law to criminalise women who transgress patriarchal norms. The JVC recognised this concern in amending theCriminal Law Amendment Bill, 2012.

However, the cabinet seems to have refused to take into account the growing statistics of arrests of women under s. 376 IPC. Nor do they seem to think that men will misuse this provision against women: because in legal discourse only women seem to misuse patriarchal laws against men!

It is evident that ordinance does not revise male laws from the point of view of survivors of sexual assault. Take the example of marital rape. For whom is marital rape controversial? Surely it is not controversial for women who experience sexual violence in marriage. But the men who draft laws smell the fear of those men who cannot be bothered whether their wives want to have sex with them. Surely husbands must be given legal impunity if they sexually assault their wives, argues Abhishek Manu Singhvi, since wives will levy false cases against their husbands, and courts will be flooded with wives accusing husbands of rape. In other words, women who are married are treated as if they are pathological liars, and by implication are positioned as a “criminal type” intent on breaking up marriages on false accusations ranging from rape, domestic violence and dowry related harassment.

This argument is obviously ideological rather than sociological. It cannot be argued by anyone that women are less invested in marriage than men, given that patriarchy ensures that status and respectability of a woman in society derives from the fact of marriage. Women nurture their families, far more than men, be it their affinal or natal families. They look after the young and the old. They are dependent on their families economically, socially and politically. Women are told constantly to “adjust” to violent husbands perhaps since such men cannot be courageous to risk true love by surrendering their violent power.

Women have too much to lose if they levy false accusations of sexual assault against their husbands. Even mothers who file charges against husbands who rape their daughter are hounded in our courts, police stations and families for being bad wives, breaking up the family and threatening social order.

Further, there is no social or governmental support for women who would like to reject marriage. Single women, who are divorced, never married, or do not want to be married to men, are targeted by everyone in manifold ways. The mildest form of discrimination single women face is pity, or derision at not having their own family. The assumption that single women are “available” for male sexual experimentation, the lack of safety and the heightened vulnerability without the “protection” of a man, are all elements of enforced heterosexuality.

The government is petrified that the very suggestion that wives are autonomous will unravel the phallocentric foundations of marriage—based as it is on violence or its threat. Wanting to cling on to the monopoly to rape their wives, these men who make our laws betray a strong attachment to colonial law. This is not surprising since women’s bodies in enforced heterosexuality are colonised by the desires of husbands who enjoy rape. If those who script laws had been accepting of different models of masculinities, and understanding of pluralities of sexual experiences crafted by the experience of the joy of autonomy, they would not have expressed such panicked fear. They would have also deleted s. 377 IPC by way of an ordinance but then heterosexist men despise queer sexuality the most.

The cabinet does not need to conduct a national survey to realise that rape is a preferred mode of violence in marriage. They know that most often heterosexist men do not bother to be solicitous of the desires of their wives or pleasure them. Such heterosexist men do not wish to acknowledge that there are alternate ways of scripting sexual relationships, which are alive with autonomy, laughter and sexual creativity—precisely because of mutual respect and admiration. If the men in positions of power had experienced such relationships, they would not feel threatened by legislating against the sexual colonisation of women’s bodies by their husbands. The law distorts what marriage should mean for both men and women–freedom from violence, expression of love, sexual companionship, and a journey in profound friendship. Love obviously threatens social, legal and political orders far more radically than violent ways of extinguishing a woman’s life.

The ordinance declares the continuance of those sexual emergencies in everyday and extraordinary context, which are central to patriarchal power. The spectacle of judicial reform is enacted to detract attention from such permanent states of emergency. Perhaps the Cabinet should clarify what it means by emergency in the first place, since it seems the ordinance, in its current form, embraces the idea of domesticating and even celebrating some forms of permanent sexual emergencies, over others. Nor does it take legislative labour to do away with the medicalization of consent via the two-finger test or insist on registration of FIRs irrespective of jurisdiction. This could have been done by executive or judicial decree. Unfortunately, the JVC is also complicit in the making of this spectacle of judicial reform by insisting on the model of 20/20 law reform, and demanding governmental recognition of its heroic labours, without truly understanding the deep structure of sovereign power, which has a necrophilic need for permanent states of sexual emergencies. No wonder the JVC is upset and we can only hope that their suffering makes a radical difference.

Pratiksha Baxi teaches at the Centre for the study of law and governance at JNU and can be contacted at Pratiksha Baxi pratiksha.baxi@gmail.com

 

PRESS RELEASE- #India – President urged not to Sign the Ordinance by Women’s Organizations


 

New Delhi, 2 Feb 2013:  We, as representatives of women’s organizations, civil society groups, and activists committed to women’s rights, convey our strong opposition to the Government’s decision to move an Ordinance on the criminal law amendments related to sexual violence. We call upon the President of India to not sign such an Ordinance.

Information in the public domain, through media sources, reveals that an Ordinance on amendments to sexual assault law was cleared by the Cabinet yesterday, on February 1, 2013 – about 20 days before the next parliamentary session. We are alarmed at the complete lack of transparency displayed by the Government in proposing an Ordinance as an emergency measure.  We wonder what objective and purpose will be served by such a hasty non-transparent measure – less than 3 weeks before the parliamentary session, since the proposed law will not retrospectively apply to the Delhi gang rape case.

We demand transparency and due process in law making. We demand that the Parliamentary process, including the Standing Committee process be upheld, for this is the place where we, as citizens of this country, have the right to be heard.

“An Ordinance like this, implemented by stealth, only serves to weaken our democracy” notes Vrinda Grover, a human rights lawyer. Emphasizing this concern, Madhu Mehra, a women’s rights lawyer added ,”An Ordinance like this betrays the trust of scores of Indian men and women, who marched the streets of Delhi and other cities demanding an end to impunity for Sexual Violence.”.

Women’s Organizations are shocked further shocked to learn that the JVC report has not been considered fully or even partially, neither in letter nor in spirit in the content of this Ordinance.

“We are told that virtually all the recommendations that we and others had hailed as signs of a paradigm shift in understanding violence against women; all the recommendations that can actually strike at the heart of impunity – have been dropped” stated activists, Kavita Krishnan, Farah Naqvi and Sunita Dhar.

It was pointed out that these include – recognition in law of marital rape, new provisions on the offence of breach of command responsibility, non-requirement of sanction for prosecuting a member of the security forces accused of sexual assault and rape, provision for trying them under ordinary criminal law for sexual crimes; and change in definition of consent to any sexual act.

Furthermore, the content of the Ordinance to our knowledge has introduced provisions that were strongly rejected by the Justice Verma Committee, including the death penalty. “We are shocked to learn that the Ordinance introduces a gender neutral perpetrator for sexual assault, suggesting that both women and men could potentially be charged for the offence. Rape as we know it is a crime largely defined as male violence against women, with absolutely no evidence of women as perpetrators. This is in disregard of the Justice Verma recommendations too, and is totally unacceptable”, noted Madhu Mehra.

Women’s groups have been demanding comprehensive amendments in criminal law related to sexual violence for over two decades, and have expressed our endorsement of the Justice Verma Committee Report. We have made oral and written submissions to the Justice Verma Committee and our voices and concerns were reflected in the Committee’s report. “We again reiterate our call to the Government of India to implement the recommendations of the report comprehensively, in letter and spirit” noted Vrinda Grover. We congratulate the Justice Verma Committee for completing the report in record time without compromising on consultations, dialogue, due process and transparency.
“Even as we have called upon the Government of India to implement the Committee’s report with alacrity, we emphasise that such implementation not be at the cost of due process, or selective adoption of the Committee’s recommendations” stated Farah Naqvi.

————————————-

For more details please contact:

Padmini: 09810481807 and Farah: 9560511667

WATCH NDTV VIDEO COVERAGE OF PRESS CONFERENCE

http://www.ndtv.com/video/player/news/women-s-groups-reject-ordinance-on-rape-laws-urge-president-not-to-sign-it/263810

 

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