Why the government’s ordinance is an eyewash

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Illustration: Anand Naorem

ANY ORDINANCE is promulgated as an emergency measure. Women live in a daily state of ‘emergency’, their freedom curbed by the fear of sexual violence. But it is not this emergency that has prompted the government’s ordinance. Rather, for the government, the ‘emergency’ was the desperate need to somehow dilute and divert the Justice Verma recommendations, which reflected the aims and demands of the ongoing countrywide movement.

The Justice Verma Report was a breath of fresh air, letting in the flowing wind of democracy and freedom into all the prisons of patriarchy. For the first time, here was a set of reasoned recommendations, backed by painstaking homework recognising that sexual violence was about power, not sex; that removed sexual violence from the frame of ‘shame-honour’ and understood it in terms of women’s bodily integrity and dignity; and which sought to ablate the unbridled power and impunity that breeds violence against women. The ordinance, instead, shores up the walls of patriarchal privilege and impunity.

It is true that the ordinance broadens the definition of sexual violence, recognises stalking, acid-throwing and voyeurism as an offence, and introduces more severe punishments. But on a range of key questions, the ordinance actively militates against women’s autonomy and rights, and protects the impunity of powerful rapists, and the lack of accountability of police and other institutions.

Justice Verma’s Report had redefined the meaning of ‘consent’, stating that unless a woman indicates ‘Yes’ to sex, either by word or by gesture, no one can ‘assume’ that she consented. In the present system, many rape cases go unpunished because a woman is ‘presumed’ to have consented unless she has marks of injury on her body or on the body of the accused. She is ‘presumed’ to have consented if she is married to the accused. On the other hand, a girl is ‘presumed’ to be incapable of consent to sexual contact if she is 16-18 years old, even if her partner is of a similar young age. Moreover, she is ‘presumed’ to be lying if the man she accuses is a public servant, a judge, a magistrate, or an army officer; that is why in such cases, prior permission from the government is needed to prosecute the accused. Justice Verma sought to challenge and change these in-built patriarchal assumptions, the protective shields for the powerful, that go against justice for women. The ordinance’s purpose, instead, seems to have been to prevent these patriarchal assumptions and protective shields from being swept away.

And further, the ordinance adds provisions that make women even more vulnerable than they are under the existing laws. For instance, the ordinance makes the perpetrator of rape ‘gender neural’, i.e. both men and women can be accused of rape. This could mean that if a woman files a rape complaint against a man, he is in the right to file a counter complaint of rape against her!

The ordinance does not respect the rights of young girls between the age of 16 and 18 to have sexual contact by their consent with those of a similar age. Instead, by automatically branding all such sexual contact as ‘sexual violence’, the ordinance will strengthen the Khap panchayats and moral policing brigades, who seek to curb the freedom of young people.

The ordinance legitimises marital rape and strengthens the idea of the wife as the ‘sexual property’ of the husband. It also retains the provision of lesser sentence (minimum of two years) for a husband who rapes a legally separated wife. So, even if a wife has taken the pain to separate herself from an abusive husband, the law will make excuses for him if he rapes her. Effectively, the ordinance implies that while wives are specifically prevented from being able to accuse husbands of sexual assault — because of the ‘gender-neutral’ provision, husbands can now accuse wives of sexual assault. The exclusion of marital rape and the lesser sentence for rape of a separated wife are shocking violations of the principle, upheld by Verma, that the relationship or prior relationship of the accused with the victim will not be grounds to undermine the rape complaint or show leniency.

There is a deliberate attempt now, on part of the government as well as a variety of patriarchal voices that have become active, to suggest that ‘marital rape’ is a ‘controversial’ issue. This is strange, to say the least. What is controversial about saying that a woman, by marrying, does not sign away her sexual autonomy for life? We should ask those who are painting apocalyptic visions of disintegrating families as a result of recognising marital rape: do you mean that marriage and the family institutions rest on the pillar of the sexual power a husband enjoys over his wife? By recognising marital rape, will we not, in fact, democratise the institution of marriage to a greater extent?

The ordinance continues to offer a shield of impunity to the powerful. There are no provisions against elected candidates chargesheeted for sexual violence. It retains the requirement of ‘prior permission’ for prosecution of public servants / judges / magistrates / army officers. So, no Ruchika Girotra or Soni Sori (molested and tortured by police officers), Geetika Sharma or Rupam Pathak (raped by MLAs), or Thangjam Manorama (raped by army personnel) can expect justice under this ordinance. Senior police or army officers will not be investigated or punished for custodial rapes that are committed at their orders or with their knowledge in custody by their junior officers.

The government argues that the prior sanction clause is needed to protect public servants and army officers from ‘false complaints’. Why should the government be allowed to decide if a woman’s complaint of sexual violence is false or true? Why can’t the courts be left to decide this, especially in cases where the accused is powerful?

To ensure accountability of the police, Justice Verma has stipulated a punishment of five years imprisonment for failure to register an FIR or biased investigation, in order to instil fear of consequence in police personnel who fail to abide by the law. But the ordinance dilutes this to a mere one year.

The ordinance betrays its patriarchal core by continuing to call molestation as “outraging modesty”. Not only does it fail to ban the demeaning and sexist two-finger test, its definition of rape actually legitimises the two-finger test, in the name of “penetration for medical purposes”.

The shoddily-drafted and antiwomen ordinance, promulgated by stealth before any citizen of the country had even seen it, is a disservice to the painstakingly prepared Justice Verma Report that was formulated by a democratic and rigorous process. This is why there is a public outcry against it.

THE GOVERNMENT’s position is that they have not ‘rejected’ any of the Verma Committee’s recommendations, but have simply left out ‘controversial’ provisions. Women’s autonomy and rights, and the question of ending impunity and ensuring accountability are the backbone of the Verma Report; by terming these controversial, the government has revealed its own ideological bias.

The ordinance continues to make excuses for rape in a variety of contexts — and that is why it must, at the earliest, be replaced by a thoroughgoing Criminal Amendment Act that is based on the Justice Verma recommendations. The government must also back the Verma recommendations with budgetary allocations in the forthcoming Budget: spending enough on rape crisis centres, more judges and courts to ensure speedier trials, safe houses for women facing violence in their homes, and forensic facilities, rather than on lakhs of crores of tax giveaways to huge corporations.

letters@tehelka.com

13 COMMENTS

  1. Hi,
    Your article is indeed good to read. It makes me sad that a report prepared by one of the most steady and just judges of the judiciary still needed to be amended by our brainy politicians!
    Still, I had some discrepancies in my thoughts and yours which after reading was forced to comment at this time of the day.
    You call Sex between girls of 16-18 Legitimate? Of course, couples between 16-18 yrs of age are not married. Please don’t forget that this is India..not US or UK. They are different countries…may be more modern..developed ones but we are proud of our culture and if promoting intercourse between youngsters of this age abides to the fundamentals of modernization, I am happy to be backward. For me at least its not legitimate cos my parents have never taught my sister to have intercourse or even think of one before marriage. and I even don’t believe that your parents did not.
    Again, on the point of Marital-Rape, If wives wont have body relations with their husbands, then who will? Is this not another compulsion for Men to Rape other women? What shall a man do at that point? I agree to your point that a divorced husband should be penalized for rape if he has forced his separated wife into intercourse. But a wife should at least not blame her husband of Rape as long as she is married. Since she is his wife, if she has the will to bear his good points, the bad are also hers and if we see..This is the basic oath we take in front of our society during marriage, to be with each other, to facilitate each other in good and bad. If a Wife readily moves court for her husband’s property and considers his property her’s then she should also stick to be his property or if not then…get divorced for FULL AUTONOMY..
    Your point on the bureaucratic and Political coverage of the ordinance is very correct..After all..Politicians wont change and will hide their own skin. This needs to be worked on..we need to get this amended and of course, they need to keep the other Elite forces exempted too so that their class don’t remain lonely.
    Also, once thing I wanted to highlight here is Why I think are women foreseeing such sexual crimes against them. If we see the stats, this has increased steadily in the recent years.
    I also believe that the attitude of women in recent years has changed. For most individuals..youngsters..what I see by their view westernization=modernization which actually is not. Just like China and Japan(Where their culture and Language is respected more than it is in here), India is a land of culture and if this heritage is not protected, it shall be lost and so is happening. Women should also avoid the cheap display of their bodies…Poonam Pandey…Mallika sherawat…now who all to name? are these not women..and if they are…what message are they giving to the young nurturing minds of youngsters? And the most shameful part is that they show their bodies, just for money, remain unharmed. Women organization go mad when anyone says that even a girl must learn to wear- dress..etc. This is true to some extent cos for me, there Fashion should always be equated with decency. We should not promote indecent fashion..
    Whatever the reason be it, men are indeed behaving like dogs, and in my eyes, rapists should be made nude in front of the society and Shot down/Castrated..They represent the cheapest form of mankind present in between us.

    Regards,
    Abhishek Pandey

    • Mr Abhishek: “If wives wont have body relations with their husbands, then who will? Is this not another compulsion for Men to Rape other women?” So you assume that men need sex and if they dont get the sex on demand they will be compelled to rape. Ok. Well, when women are denied sex do they go around raping men? Do widows in traditional society rape?! Rape is not about a ‘need’ for sex – it is a deliberate violation of a woman’s right to say ‘NO’ to sex. Just because a woman marries, she has not ‘consented’ to every sexual act by her husband. What if her husband is a wife beater and she fears him? Can she feel like having sex with a man she fears? If she says no, then he rapes her!
      Don;t young people between 16-18 hold hands? Kiss? Touch each other? Maybe their parents may not like it, but it is natural for teenagers to do this. We can teach them to know about sex, to be careful, to set limits, but a certain amount of sexual experimentation is quite normal and natural at that age. Acc to the ordinance, even touching or kissing by consent will be ‘sexual violence’ if the persons are 16-18 years old! Is this fair? If your brother of that age were to touch a classmate/girlfriend, would it be right for him to be accused of ‘sxual violence’? And this is happening all over rural India, not just urban India and America!
      Your notion that rape happens because women are exposing themselves on cinema etc is nonsense. If so, why are not men raped because Shahrukh and Salman show off their six-pack abs? Obviously, exposure of body does not lead to rape. Women are raped BECAUSE they are women and not because men are ‘provoked’. Please wake up, smell the coffee, stop making excuses for rape and justifying rape. Calling for castration and stoning is no use when you, yourself, are actually encouraging rapists by making excuses on their behalf and blaming women for rape. As long as you and millions like you keep blaming women’s behaviour and clothes for rape and saying it’s understandable for men to rape if their wives dont provide sex, rapists will always enjoy great encouragement and have good company. It’s ideas like this that produce and ecourage rapists. You may hang one rapist – but we can;t hang these ideas that produce and feed the minds of thousands more rapists…
      Thank you,
      Kavita

      • Hi Kavita,
        I do acknowledge your stand on the amendment of the recommendation for teenagers between 16-18. Of course, holding hands and kissing is not incorrect, but then sex at that age, when even your mind has not fully grown is not proper. This cannot be justified.
        About the Husbands who rape their wives, it is of course the fault of the male here. “What if her husband is a wife beater and she fears him? Can she feel like having sex with a man she fears?” – you tell me this..Why doesn’t the wife of a wife beater drag him to court for that? why to let him give the opportunity to Rape? Why not to take Divorce then? I have red of woman who have done this to their husbands…dragging them to court for beating them and that is correct and justifiable. As said – “Prevention is always better than cure” and so is my stand on Rape whether you acknowledge this or not. Also, I dont say that “Men need sex and if they don’t get, they shall be compelled to Rape”. This is actually what you could make out of my words and pronounce it as nonsense.Request you to please take some time and think from all angles before presenting your verdict. Its the same digit we are looking at from opp ends..u c 6 and i see 9. What I meant was, its a mental obligation shared by a wife and a husband..and if they are not compatible with it…then I believe they should part with each other rather than pulling the partner to court. They should respect the very fact that they if ever are married partners.
        Regarding the Shah Rukh/Salman names you brought in was crap. I don’t want to get into the biological details of how a man gets excited watching a woman and whether woman feels the same or not but then, It is for this simple reason why when Poonam Pandey/mallika sherawat shows her body, she hits the news(condemning her of the act) and Shah Rukh and Salman don’t. For the movie “Murder”, did anyone accuse Himesh? Why were all your press friends making news out of Mallika? Its actually is that How the society takes the body of a man and of a woman is not the same.Whether you accept this or not.Even woman called her(Mallika) cheap. I had seen it on news.Whether you accept it or not does not matter..but it is true. Women are always a sign of respect to our society and when she herself crosses the line that also in camera,the Press acts and its good they do so.Please don’t try to justify this.
        You asked me “Ok. Well, when women are denied sex do they go around raping men? Do widows in traditional society rape?” Well its not a man who denies sex to a woman.At least an Alpha male wont and an Alpha male wont rape. I do fully agree to your stand and that is why the law is taking its course(with sad amendments) for the shameful and heinous act of men.
        AND FOR YOUR INFROMATION, I DONT ENCOURAGE RAPISTS. THIS WAS MY THINKING WHICH I SHARED. What I say is said by all and what is said by all with a common view becomes Law. Women/Men have to walk on the bridge between fashion and decency and this bridge should always remain balanced for our society/Country to modernise. You said my idea feeds and produces more rapiest..This is indeed something hurting since had it been so…I would consider myself as one of the most unfortunate soul’s and ya, India would have been in the same condition which South Africa is now. Thank God here its not like that.

        On Deepti’s reply, I cannot reply now since I do have my own work…but its Good Woman are aggresive to even the slightest negative response their determination. I do appreciate that.

        Regards,
        Abhishek Pandey

        • When you blame women of provoking rape by exposing their bodies, or by ‘crossing a line’, you are defending rape and rapists, face the fact. It may hurt, but it’s true. And with all your talk of Alpha males, you can decide if you are talking about apes or men. It’s men who think of themselves as ‘Alpha’ who do rape. Please stop being Alpha and start treating women as equal humans with equal desires, sexual and otherwise. That’s the only possible way to deter and stop rape.

          • It indeed brings up a smile when u compare Alpha males with Apes and that its the Alpha male that Rape. Anyhow…it was my understanding that you do understand the meaning of an Alpha male.. On another note, I shall never believe that I am provoking rape by speaking up that woman are indeed crossing the line and the best part is that I know I am right…since most of the people I have spoken to on this topic feel the same. Women should wear the robe of dignity and not of cheapness.
            Regards,
            Abhishek Pandey

          • ‘Alpha male’ – dictionary meaning: ‘dominant male’ in a pack of animals, which has the right to breed with females in the pack. The problem arises when human men start thinking they too can be a ‘dominant’ male, having the ‘right’ to ‘command’ sex from any woman they choose! That’s where rape begins. How come men who piss in public, unzipping their pants and exposing privates, are not ‘cheap’, but women who wear clothes of their choice are ‘cheap’?

    • Dear Mr. A Pandey,

      Thank you for reflecting your misogynist opinions.

      1. Sex between 16-18 should be legalised to bring justice to sexual assault and especially hang the culprit from Delhi case.
      2. I ask you to identify your culture please because it definitely don’t belong to women in India as long as my culture believes in persecuting women to rape, honour killings for crossing lines rather than men for crossing theirs. A society that cannot protect my women is not a society worth living or dying for. Your society. Your culture. Your women. Go ahead, Lock them! If U believe that can save them!
      3. Do you see woman as an object or vegetable meant to bear & gratify the husband? A wife is a fuller complete human being. Marriage comes out of mutual agreement, consent and respect and should not be compared with business; one that promotes buying and selling of human females. In that case, it is not marriage but prostitution – so, nothing like or less but worse than what is in USA.
      4. It is sad that we are not a developed society like the USA where justice comes easy and fast and women live a dignified, fearless, secure and respectable life.
      5. To your questions, ‘If wives won’t have body relations with their husbands, then who will? Is this not another compulsion for Men to Rape other women? What shall a man do at that point?’ two parts to it. One, What can a man do? Well, Practice self control and patience like women do all the time and say Om! He must recognise that the person at the other end is a complete human person with feelings of sex and desires, aspirations & goals in life too and definitely has all right as him to say Yes & No. Two, If wives won’t have body relations with their husbands, then who will? Well, they can have it with someone who can give her what she wants (Take time to ask what she likes, how she likes and what she does not like) treats them well, as equals and humans and for who they are instead of a piece of meat.
      6. The basic oath of marriage we take before society is that we’ll be with each other through thick or thin and that we treat each other with respect. If a husband is bad, he is breaking the oath already and thus should be abandoned for a better one. The man is not doing any favour by marrying a woman. (your so called Indian Society teaches women are vulnerable without men and it is men again that make it so vulnerable.) They fight, they kill, they rape.
      7. Not all women are mallika as much as not all men are rapists. So, stop generalising.

  2. Hi Kavita,
    I do acknowledge your stand on the amendment of the recommendation for teenagers between 16-18. Of course, holding hands and kissing is not incorrect, but then sex at that age, when even your mind has not fully grown is not proper. This cannot be justified.
    About the Husbands who rape their wives, it is of course the fault of the male here. “What if her husband is a wife beater and she fears him? Can she feel like having sex with a man she fears?” – you tell me this..Why doesn’t the wife of a wife beater drag him to court for that? why to let him give the opportunity to Rape? Why not to take Divorce then? I have red of woman who have done this to their husbands…dragging them to court for beating them and that is correct and justifiable. As said – “Prevention is always better than cure” and so is my stand on Rape whether you acknowledge this or not. Also, I dont say that “Men need sex and if they don’t get, they shall be compelled to Rape”. This is actually what you could make out of my words and pronounce it as nonsense.Request you to please take some time and think from all angles before presenting your verdict. Its the same digit we are looking at from opp ends..u c 6 and i see 9. What I meant was, its a mental obligation shared by a wife and a husband..and if they are not compatible with it…then I believe they should part with each other rather than pulling the partner to court. They should respect the very fact that they if ever are married partners.
    Regarding the Shah Rukh/Salman names you brought in was crap. I don’t want to get into the biological details of how a man gets excited watching a woman and whether woman feels the same or not but then, It is for this simple reason why when Poonam Pandey/mallika sherawat shows her body, she hits the news(condemning her of the act) and Shah Rukh and Salman don’t. For the movie “Murder”, did anyone accuse Himesh? Why were all your press friends making news out of Mallika? Its actually is that How the society takes the body of a man and of a woman is not the same.Whether you accept this or not.Even woman called her(Mallika) cheap. I had seen it on news.Whether you accept it or not does not matter..but it is true. Women are always a sign of respect to our society and when she herself crosses the line that also in camera,the Press acts and its good they do so.Please don’t try to justify this.
    You asked me “Ok. Well, when women are denied sex do they go around raping men? Do widows in traditional society rape?” Well its not a man who denies sex to a woman.At least an Alpha male wont and an Alpha male wont rape. I do fully agree to your stand and that is why the law is taking its course(with sad amendments) for the shameful and heinous act of men.
    AND FOR YOUR INFROMATION, I DONT ENCOURAGE RAPISTS. THIS WAS MY THINKING WHICH I SHARED. What I say is said by all and what is said by all with a common view becomes Law. Women/Men have to walk on the bridge between fashion and decency and this bridge should always remain balanced for our society/Country to modernise. You said my idea feeds and produces more rapiest..This is indeed something hurting since had it been so…I would brand myself as one of the most unfortunate guys and ya India would have been in the same condition which South Africa is now. Thank God here its not like that.

    On Deepti’s reply, I cannot reply now since I do have my own work…but its Good Woman are aggresive to even the slightest negative response their determination. I do appreciate that.

    Regards,
    Abhishek Pandey

  3. Kavita,
    Alpha Male is a male(within a group of MALES) who is a dominating person with an attitude..And you know something, you cant stop people from unzipping and pissing in the middle of the Road, coz again, this is India..but yes, women show the decency here too and ofcourse…they should show it.I need not explain you all this more…coz its hitting deaf ears but ya..is echoing always.
    Thanks
    Abhi..

  4. This became so sad ‘ one helpless Girl pointing to harassed man and he siting in nation’s key position.The ruling party and major opposition also supporting him. This happening is not favorable for our nation.

  5. Dear Kavita,
    I have read so many useless articles on Rape in the Indian Media after the Delhi Gang Rape and must congratulate you for this well written article. Men like Abhishek Pandey belong to an era when Sati was practiced in India. I am not at all familiar with the Indian Culture he is talking about. The problem is that men like him become politicians and make the laws of the country. Best to ignore such people.
    Cheers
    Ram

  6. dont put him in jail for your fun..

    Also why feminists asking for below 18 people can sex each other?
    As per current law , they cant…
    So no one gonna sex with below 18 girls…
    If rule changed? Below 18 girls can enjoy sex any time, also when they get bored they can say that sex was without their consent and put man for rape case..
    But now below 18 girls miss that opportunity.
    That may be why feminists crying for below 18 can have sex

    also feminists crying for rape case must be proved without physical damage to her body

    then every girls can sex with man, after that when they need fun or cash , they can put rape case against man…
    Then he will be jailed rape also girl enjoyed sex also….

    Not only men enjoys sex, women enjoys sex more than men…
    If women have more power than men, they may have been raped every man because their sexual enjoyment is double of men…

  7. How you can blame husbends for marital rape?
    What is the proof for marital rape?
    Sex?
    Everyday wife will enjoy sex and one day if she bored with husbend, she can complaint maritalrape about yesterday’s sex?
    It is slavery….
    I cant agree to marital rape law…
    If husbend actually raped wife, then wife must be physically damaged, then conmplaint using domestic viloence act…
    Marital rape will be just a tool for feminists to control their husbends under her foot by threatening……
    We never gonna agree this..
    Marital rape law is a danger for marriage system….it cant be proved as husbend and wife doing sex daily(or may be atleast once in life time..
    If you dont like to sex with husbends, then divorce him
    dont put him in jail for your fun

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