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Updated: January 27, 2013 09:51 IST

A moment of triumph for women

Kalpana Kannabiran
Comment (19)   ·   print   ·   T  T  

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.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email: kalpana.kannabiran@gmail.com)

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As was expected Justice Verma Committee has tried to see the problem in totality. Social and cultural norms, Constitutional, political, legal and institutional framework has to be oriented towards achieving Right to Equality enshrined in our Constitution to each and every women. That is why the recommendation that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors deserve to be treated as aggravated sexual assault in law. The recommendation that Section 6 of the AFSPA, 1958, should be amended removing the requirement of prior sanction where the person has been accused of sexual assault must have brought a ray of hope to women residing in troubled regions .

from:  gopa joshi
Posted on: Jan 27, 2013 at 20:10 IST

Yes, it is a victory, but calling it "triumph for women" is absolutely sexiest of the author. It is this mindset that also has to change. Just because one fights for the rights of women dosent mean they have to be against men. This "feminist" thought process has been the biggest hurdle in acquiring betting conditions for women. What is supposed to be a fight for the rights of a human being is turned into a Tu Tu Main Main debate by such activists.

The credit for this comission report goes to the committee, to all the people wrote in suggestions and the thousands who stayed put inspite of police brutality irrespective of their gender. Please do not make this a sexist fight, but take it as a fight for a better society where citizen is involved man, woman, transexual etc etc.

from:  Vijay
Posted on: Jan 27, 2013 at 09:41 IST

1. I agree with the recommendations except the case of marital rape.
the question is how do you prove marital rape indeed took place? How
can anyone ensure that it will not be misused by wives just like the
way 498A & domestic violence act is being misused? In the name of
achieving gender equality, the government should not support male
bashing & reverse discrimination.

2. Why no recommendations on control of movies & serials? The way
women are depicted in movies directly affects the minds of people..
I find no women or feminist coming out & protesting against it.. I am
getting doubt on whether all the gender equality we re talking is
about protecting women or disreputing & punishing men.

from:  santhanagopalan
Posted on: Jan 26, 2013 at 18:13 IST

I think the more important step right now is to make a national announcement of the
key points and features in this report highlighting to women from all sections of the
society about what their rights are, and telling men what might be a wrong doing. It
is very important that this does not stay closed in a constitution binder somewhere
in some closed shelf. It is important to take this to all people and make sure it
reaches everyone.

There is another level of complexity - Even when this message be sent out, do all
people clearly understand what it said. And I think in that case media has a strong
role to play to breakdown the message point by point into simpler language that can
be clearly understood by people and then to spread the awareness.

Only if it is channeled and propagated correctly, would this effort stay for a long time
and not get lost under the covers.

from:  Priyanka Bansal
Posted on: Jan 26, 2013 at 15:22 IST

JS Verma Report is truly applauding in a way that it chose to tread on a
path that requires analytic and careful comprehension of the facts and
situation. Hope that this "one moment of triumph" is protracted!

from:  Kimmi Sethi
Posted on: Jan 26, 2013 at 09:59 IST

I think we need to isolate "rape" from other incidents. The recommendation,if accepted, will make half of the entire young Indian population "CRIMINAL" because so many socio-biological factors have not been taken into account. And, Mr. Verma should also suggest way to accomodate new "Young" crminals in jails. Do we have enough prison infrastructure to take care of new 'would-be' criminals? and do we have rehabilitation plan for these new 'would-be' criminals? and what is gurantee that these recommendation will not be misused as most of the offences are subjective in nature?. Rather, I would suggest Mr. Verma should have attacked the 'root-cause' of the problem which lies in our social fabric which needs to be altered. And, In my opinion, except few, most of the recommendations are dacronian in nature and all the factors which determine social behavior of an individual have not been taken into account.Mr. Verma should take help of qualified biologists and psychologists as well.

from:  Nikhilesh
Posted on: Jan 26, 2013 at 05:58 IST

This report, among many others, is fine and comprehensive. Howerver it has failed to point out comprehensively the strategic actions that the judiciary has to initiate in a time bound program say maximum two months. Besides, everything is good from the point of view of reports, but it is left to elected legislatures who, among them, are criminals will not pass the law as expected in two months. Last but not the least has been the utter lack of concern and commitment of the law enforcing authority on one hand and judiciary on the other to make them accountable to people of this country[seeing that their own daughters, wives, sisters. mothers have been raped]. Let us see how legislatures, politicians and Government act and deliver. Country has witnessed how Government and legislatures were prompt to thwart Anna Hazare's movement and how judiciary remained a silent spectator?Dr Amrit Patel.

from:  Dr Amrit Patel
Posted on: Jan 25, 2013 at 22:31 IST

A moment of triumph for women will arrive only when the feudal mindset of the whole society towards women changes. Laws and reforms are only small part of the solution. We should tell our children to treat the women as equal human beings and give respect to them Our sons behave with women outside the way we treat our women folk back home.

from:  Hema
Posted on: Jan 25, 2013 at 21:25 IST

Of course, Justice Verma panel, which looked into crimes against women, deserves praises for suggesting comprehensive reforms. But one shall not forget that a complete elimination of sexual assault and rape is the first priority and protecting “the right to dignity, autonomy and freedom of victims” is only the second requirement. Strong punishments to the convicts are the main deterrents to avoid heinous crimes. Equally of importance is to develop a suitable culture in individuals and society through education. But at least for the present the authors hope for ‘a sensitive and committed police force’ looks utopian. The greater stress should be on how to undo the direct involvement in such crimes and unlawful patronage to criminals by politicians and political parties. Unless this problem is solved, no amount of enhancing of punishments would alter the situation. More importantly, the mere suggestions to MPs and MLAs, charge sheeted for crime against women, to resign from their elected positions, thereby showing respects to Parliament and Assemblies and to the Constitution itself, and the recommendation to the Andhra Pradesh Chief Minister to remove his cabinet colleague who tried to conceal existence of criminal case against him, are sure to fall in deaf ears. The Commission could have submitted to the Supreme Court, which recently declined even to hear the plea to disqualify such MPs and MLAs, to use the Court’s special powers to reverse the Order. Even the existing ruling of the court points to the necessity of changes in rules in this area, though the judges say they have ‘no jurisdiction’ to enact them.

from:  P.R.V.Raja
Posted on: Jan 25, 2013 at 19:47 IST

Why can’t be castration be a solution to criminal offence like rape?
Let the people understand the nuisance of girl during heinous act.
Let’s not punish the children of underage, but we must teach them a
lesson by making people punished with some harsh action. Here I agree
with the author that state is held accountable for demonstrating a
commitment to safe guard women dignity. We must form a committee at
center to monitor the performance of those working in ground level i.e
at state level. State must ensure single every bit of complaint made
by at any pocket should not be going to slip without being attainted.
Finally to ensure a smooth operation above all points our ground
force- Our Police troops - must tighten their shoes to address and to
act on any complaint they received.

from:  Prasannajeet Mohanty
Posted on: Jan 25, 2013 at 15:28 IST

Rightly said. We had seen lot of recommendations earlier to the
government to strengthen the law but not as consolidated as Justice
Verma's. None of the Government has taken up to enforce the Law into
constitution. But this one will be closely watched by public because of
the disparity state. Strengthening the basic fundamental integrity
across all genders and no bureaucratic overlook will solve the problem
at high spirits.

from:  Vinod Reddy
Posted on: Jan 25, 2013 at 14:39 IST

a very wonderful report.....as many other previous reports that were submitted but never implemented by the govt,if done so......the need for this commission wouldn't have arised.....as our needed paradise would have formed then itself.....
i am sure even now these recommendations wouldn't be followed....at best what the govt will do is keep a few guidelines......put up another panel to see the feasibility of recommendations of this panel and this goes on'...

from:  mahesh
Posted on: Jan 25, 2013 at 13:47 IST

Well said!

from:  Anu
Posted on: Jan 25, 2013 at 13:36 IST

Triumph will come only when the conditions really change; that did not
happen yet. When I read a placard of a woman demonstrator against the
Delhi rape stated 'Don't tell us how to dress; tell them not to rape',
I was disappointed. Because, such statements come from a total
misunderstanding of the facts and the situation. Those criminals are
abnormal and perverted personalities and many may be drug addicts,
alcoholics etc. There is very little chance to educate and change
them. Our cities are still very much dangerous to women; our
government is incapable to do much to change this and resolve many
other urgent problems. Therefore, it is up to the smart women to adapt
their behavior and take every precaution to protect their modesty and
life. Otherwise, who will be the loser?

from:  Abraham Karammel
Posted on: Jan 25, 2013 at 12:20 IST

Is the Euphoria too Premature.
Do we expect a Govt.Sitting perilously WILL "SACRIFICE" those
M.Ps who have worst Criminal Records at a time a SINGLE VOTE COUNT
MUCH.Hon.Justice Verma is a Person of Highest Integrity and Courage
to Call a Spade a Spade BUT DOES he belive the Parliament will pass
his Recommenations in ONE MONTH.

from:  Ajith Kumar
Posted on: Jan 25, 2013 at 11:27 IST

Sir,
Treating of women as second class citizen is universal.even in advanced countries women
are subjected to all types of punishment by their husbands.i don't understand in what way
women are inferior.They fare better in education in almost in any part of the world mainly due
to their hard work. They go to work and do their jobs in dedicated manners. They earn , cook
in their houses and instead of getting help from their husbands are treated badly.
When the treatment goes really bad and if women gets a diverse mostly they get the
custody of children and a single women with children suffers a lot to bring the children up.
Apart from all the suggestions I will suggest that the women as equal to men should get 50%
of seats in parliament and legislature.
This alone can get some help to the women community.
Let india lead other countries in the emancipation of women.

from:  Ramabhadran Narayanan
Posted on: Jan 25, 2013 at 10:53 IST

Real triumph for gender equality shall come when such intelligent
reports get transformed into legal and social pedagogy with equal code
of conduct for both men and women.At present even a conventional
marriage under Hindu marriage act has failed to provide gender equality.

from:  Rakesh Manchanda
Posted on: Jan 25, 2013 at 09:04 IST

Very good. An issue that remains to be addressed is how the interactions between male and
females get depicted in movies, the very overt vulgarity and cheap titillation that gets played
out in movie halls, tv screens, and on CDs and mp3s.

from:  Anand
Posted on: Jan 25, 2013 at 06:15 IST

One of the reason that I feel such atrocities happen not just to women
but all the marginalised and disadvantaged section of the society and in
extraordinary conditions like riots etc. is that we human beings don't
respect other human beings. This is something if agreed can be corrected
through a reform of education. I wish somewhere there is a discussion on
it as well to achieve this respect for fellow human beings.

from:  Harpreet Chugh
Posted on: Jan 25, 2013 at 06:12 IST
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