In protecting husbands from marital rape and khap panchayats from accountability for sexual wrongs, the government has lost an opportunity to change the way in which our society treats women

In its eagerness to demonstrate that it is “doing something” about rape in response to the overwhelming protests over the brutal rape and murder of the 23-year-old Delhi student last December, the government has issued an ordinance that is both ill-considered and alarming in its scope and intentions.

In the process of showing that it is acting tough, the government has gone largely against the grain and intention of the Justice J.S. Verma Committee report and lost sight of the meaning behind the protests. The core issue to be addressed was how to ensure safety and respect for women within a rights oriented regime, quite specifically the rights to sexual autonomy and bodily integrity. However, the government has largely disregarded this focus on rights, and sought to address the issue of women’s safety largely through the force of the criminal law, and the establishment of a security regime to further regulate sexual conduct, rather than liberate women. In the process, the state is amassing to itself even more power to survey and discipline the sexual conduct of all citizens, and do nothing to advance the equality rights of women.

The Verma Committee and women’s groups were clear — that the crime of rape should not carry the death sentence. To do so would not only encourage the rapist to kill his victim, but also be contrary to the tendency globally to reduce the situations in which the death penalty is awarded. Moreover, the Committee argued that there is little evidence of the death penalty serving as a deterrent against the commission of crimes. It is also well known that judges are loathe to award the death penalty and even extremely stringent sentences, as a result of which we are likely to see the already low number of convictions for rape plummet rather than increase. The need of the hour is to ensure more convictions, so that the crime of rape is taken seriously. At the moment an overwhelming number of rape cases that do make it to trial result in acquittal, sending out a message that what happened to the victim was nothing more than ordinary sex, and reinforce the myth that women lie about rape.

Spousal rape

Perhaps the most glaring and outrageous omission by the government has been in not ensuring that marital rape is criminalised as strongly recommended by the Committee. Spousal rape during the period of judicial separation is already a crime in the existing law. The enhancement of penalties for rape in the context of an estranged married couple to seven years in the ordinance is simply designed to disguise the government’s total inaction on the crime of marital rape. If a man is allowed to rape his wife with impunity in a marriage, then there is less likely to be any change towards the treatment of women in the public space. India’s exemption of marital rape is a notorious distinction it shares with very few countries such as Saudi Arabia, Tajikistan, Yemen and the Democratic Republic of Congo. And it is perhaps the only democratic country that has refused to enact such a law. Women, all women, have the right to equality and bodily integrity. This right is simply non-negotiable. If the government insists on maintaining this exemption, it is incumbent on them to explain their defence of men who rape their wives with impunity.

Wolf whistles, bottom pinching, and ordinary heckling, have become an endemic feature of women’s lives in India, and part of what is described as “everyday sexism.” While the government ordinance will penalise such conduct through the application of the criminal law, such a move is not going to stop the problem of sexism or sexual harassment. It is highly unlikely that a woman will report the lewd stare or wolf whistle and go through the process of a trial to secure a conviction in such instances. Nor has the response to such sexism in other jurisdictions moved in the direction of more criminal law. We require a policy on sexual harassment, while at the same time ensuring that sexual rights are not compromised in the process, that is, to de-stigmatise sex and consensual sexual relations rather than reinforcing the stigma through the establishment of a sexual policing regime.

Gender neutrality

On the issue of gender-neutrality, the Verma Committee recommended that sexual assault on men, as well as homosexuals, transgendered and transsexual persons be covered by the rape law. However, if rape is to be gender-neutral, it is incumbent on the government to do away with section 377. Criminalising non-consensual sex regardless of gender can only work if sexual minorities are granted the right to have consensual sex in the first place. Otherwise, such a provision is likely to be applied to further harass sexual minorities who are not recognised as citizens entitled to rights, but continue to be viewed through the lens of contamination and deviancy, to be criminalised and stigmatised.

While the government has demonstrated extraordinary alacrity in adopting the ordinance, and an expanded definition of rape is welcome, the overall response is selective and hackneyed. A knee-jerk response to the Verma Committee report not only fails to understand the complexity of the issues being addressed, but also exposes the political unwillingness to bring about a sea change in attitudes towards women in India. In protecting specific constituencies such as husbands or the khap panchayats from accountability for the commission of sexual wrongs, the government has missed a golden opportunity of recovering its battered reputation on women’s rights on the global stage as well as significantly altering the way in which our society values its women. The slogans of the protestors were clear: women are not wives, mothers, daughters and sisters; they are citizens who are demanding equality. This revolutionary moment should not turn into a damp squib and the political classes cannot get away with equating more draconian criminal laws with something being done about women’s rights. It is in fact the antithesis.

(Ratna Kapur is Global Professor of Law, Jindal Global Law School.)