The House must ensure that the new Bill to replace the Criminal Law Ordinance consciously upholds the provisions and spirit of the Verma Committee report

A brave young woman died a brutal death in the heart of the nation’s capital. And Parliament must speak. Today. Tomorrow. Or, the day after. But speak it must. And in a unified voice of conviction and certitude, rising above the cacophony of political difference say No to violence against women. Not in mere words, howsoever strong and impassioned, but in deeds, in crafting into our statute books laws on fighting sexual violence that are overdue, that the nation demands, and that are truly just to women. After decades of slow momentum on women’s rights, India is poised on a cusp of change. It is now in the hands of parliamentarians to make that a reality. Let a voice reverberate from the halls of Parliament, sending a signal to India and to the world that our democracy is alive, that our democracy is good for women, and that this time the ramparts of patriarchy shall give.

History is littered with lost opportunities for change. Let this not be one of them. Today, scores of women across India, protesting on the streets, watching from their homes, writing in their blogs, alert with angry chatter on e-groups, speaking loudly in press conferences, strategising in quiet huddles — are saying the same thing — uphold the Justice Verma Committee (JVC) Report!

The task before Parliament is not simple. First there was the Criminal Law Amendment Bill 2012 (CLB), tabled in the Lok Sabha on December 4, 2012, and sent to the Parliamentary Standing Committee. The CLB 2012, crafted before the JVC was even constituted, was flawed and reactionary, flying in the face of repeated demands by women rights groups across the country. It was soundly opposed through scores of submissions to the Parliamentary Standing Committee. But even as the Standing Committee was considering its response, it was overtaken by events — the brutal gang-rape of the young woman on December 16, 2012, the constitution of the JVC on December 23, 2012, the quick submission of its report on January 23, 2013, and then, ostensibly, in response to national sentiment, in an act of haste and stealth — an Ordinance which was signed into law on February 5, 2013.

Now the Parliamentary Standing Committee, which officially considered the Criminal Law (Amendment) Bill, 2012, (and the Ordinance, 2013 as well), has submitted its report. And the Government of India is poised to craft a new Bill to replace the Ordinance. Sadly, the Standing Committee report does little to push the boundaries of our collective conscience, and one only hopes that the new Bill will.

While both the SC report and the Ordinance 2013 can claim to have incorporated parts of the JVC recommendations on points of law, the question Parliament must ask is, as it considers any new Bill, is: which key JVC recommendations got left out?

The list of omissions is illuminating. Both the Ordinance 2013 and the SC Recommendations not only retain the core of impunity for sexual crimes, they actually add to it.

Accountability

What is impunity? A simple Thesaurus search will show up the following words — license, exemption, freedom, liberty, latitude and immunity. Centuries of impunity emboldens those who commit violence. It emboldened the men who mauled a young woman’s body. Yet, the Ordinance 2013, which is today the law of the land, has created laws on sexual assault, harassment and rape in which the accused is “gender neutral,” i.e. both women and men can be accused of these crimes. Does this sound right? Can we sweep away the painful, historical and contemporary reality of masculine violence against women in India — of women, stalked and raped by men in fields, homes and streets? Yes, in custodial situations, women can be perpetrators of sexual violence — no one who has seen images of Abu Ghraib should believe otherwise. But not across the board. Given the brute nature of gender-based inequities in India, the huge imbalance of power between men and women, the realities of rape across our towns and villages, is this the law that the women of India deserve?

For every complaint made against an offender, there now arises a real possibility of counter-complaints that will silence women even more than they are today. Which woman will brave the sceptical stance of the police and judiciary to seek justice when she herself stands to be in the dock, accused of the same crime as the offender? These are the questions Parliament must ask.

The SC report and Ordinance also uphold impunity of the police, keeping intact their licence to refuse to lodge FIRs, to smirk and scorn women who seek its help. The JVC report had recommended creating a new offence (166A) for public servants who disobey the law and proposing a mandatory minimum sentence. The Standing Committee supports inclusion of this offence but says ‘no’ to a minimum sentence. So, a rap on the knuckles is the only real deterrent we offer erring police. Parliament must demand full accountability from the public servants of this country — to ensure that they provide protection and ensure prosecution if women are violated; and Parliament must ensure that any new Bill on sexual assault and rape proposes a minimum sentence for erring public officials.

Age of consent

And where will Parliament stand on age of consent? Will it stand up for the rights of the young men and women of India, who deserve the right to be young, and to not be criminalised? Or should we make them even more vulnerable to self-appointed moral guardians with medieval mindsets, to the khap panchayats, by making sexual contact with anyone between 16-18 years a statutory offence, as the Ordinance 2013 does and the Standing Committee upholds? Statutory offence means any third party can threaten young people with jail-time; it means a judge must convict them, even though the couple may beg and plead and say this was not a crime; it means harassment by police in inter-caste relationships; it means a powerful tool in the hands of the wrong people. If Parliament passes a Bill that criminalises consensual sexual contact with anyone between 16-18, India’s portrait will hang in the international gallery of shame.

There is more at stake — will the new Bill recognise marital rape? Or, make it obligatory on the State to provide reparations for victims? At the time of writing we do not know what the provisions of the Government’s new Bill will be. If it upholds the provisions and spirit of the Justice Verma Committee report, Parliamentarians must pass it into law, and as you thump your tables in approval, women outside will celebrate with you. This time, in memory of a young woman who died as no woman should, Parliament must speak for all the women of India. And this time the ramparts of patriarchy must give.

(Farah Naqvi, a writer and activist, is a member of the National Advisory Council. Views expressed here are personal. E-mail: farah.naqvi64@yahoo.com)

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