India Moves to Strengthen Sexual Assault Laws
By NEHA THIRANI BAGRI | FEBRUARY 2, 2013
On Friday, a special meeting of the Union Cabinet approved an ordinance to strengthen laws to deal with sexual violence against women. While the ordinance approved some suggestions made by the Justice Verma Committee making stalking, voyeurism and acid attacks punishable under criminal law, it diverged on issues such as marital rape, capital punishment and the prosecution of armed forces personnel who commit sexual assaults. The ordinance has received a mixed response from lawyers and women’s groups, who were agitating for more holistic legislation.
“This is a piecemeal and fragmented ordinance which seems to be more of an exercise to make an impact,” said Kirti Singh, a senior advocate in the Supreme Court of India who specializes in women’s issues. “After twenty years of not doing anything, they seem to be in a tremendous hurry to do something or the other to appease public sentiment.”
The Dec. 16 rape and subsequent death of a young woman on a moving bus in India prompted a nationwide response and calls to improve India’s legislation to curb sexual violence against women. On Jan. 23, a three-member committee headed by a retired Supreme Court chief justice, J.S. Verma, submitted its recommendations urging the government to act. In response, Prime Minister Manmohan Singh pledged Wednesday to act quickly to adopt the committee’s recommendations.
Mr. Singh on Friday convened a special cabinet meeting to discuss the recommendations of the Justice Verma Committee, after which the ordinance was passed. The ordinance must be approved by President Pranab Mukherjee and passed by the Parliament to become law. “The approval of the ordinance in an utmost expeditious manner is in response to the sensitivities of the people felt in the aftermath of the gruesome incident that happened on Dec. 16,” Ashwani Kumar, the Union Law Minister, told the Indian Express. He said that the ordinance contains provisions of Verma Committee recommendations along with the Criminal Law (Amendment) Bill, 2012 that is pending in Parliament.
The ordinance has accepted some of the recommendations made by the Justice Verma Committee such as making voyeurism, stalking, and acid attacks punishable offenses. “We welcome some of the things mentioned in the ordinance such as the inclusion of graded sexual abuse and harsher punishment for sexual offenses,” said Annie Raja, general secretary of the National Federation of Indian Women. The recognition that the sexual history of the victim should not be an issue and addition of improved investigation procedures that require the presence of female police officers were also welcomed by women’s rights activists.
Contrasting with the recommendations made by the Verma Committee, the ordinance has introduced capital punishment for special cases of sexual violence that cause severe physical or mental damage, lead to death or leave the victim in a persistent vegetative state. The ordinance provides for varying degrees of punishment for rapists depending on the gravity of the crime such that the punishment for those convicted for rape can range from seven years to the death penalty. There has also been a special provision for gang rape, which entails a minimum punishment of 20 years and a maximum punishment of the death sentence.
“Every country is moving towards the elimination of death penalty and India is strengthening the legislation for death penalty,” said Kavita Srivastava, the national secretary of the People’s Union for Civil Liberties. “Here we are still looking for an eye for an eye framework.”
While the Dec. 16 gang rape revived debates about the application of the death penalty for rape and calls for the six accused men to be executed, legal experts believe that the provision of the death penalty is a regressive step.
“We have had a long experience of the court not even awarding the minimum sentence for rape,” Ms. Singh said. “Rather than the introduction of the death penalty, which seems like a knee-jerk reaction to public demands, there should be a provision for the certainty of punishment which ties down the discretion of the court.” Ms. Singh also said that the law should assure that a life sentence cannot be commuted and actually results in rigorous imprisonment for life.
The ordinance also did not accept the suggestions of the Verma Committee that dealt with sexual violence among members of the armed forces and police personnel. The committee had asked for a removal of the Armed Forces Special Powers Act that gives the armed forces immunity from prosecution and proposed that the senior police or army officer would be held responsible for a sexual offense committed by a junior officer.
Other issues in which the government ordinance rejected the suggestions of the Verma committee are the incorporation of marital rape as a punishable criminal offense, the payment of compensation to victims of sexual violence and the lowering of the juvenile age from 18 to 16 years. The ordinance has also made the definition of rape gender neutral, rather than keeping it gender-specific to women as suggested by the Verma Committee.
A statement issued by the All India Democratic Women’s Association objected to what they described as the “selective and arbitrary approach of the government” with regards to the Verma Committee recommendations. “The present piecemeal and fragmented ordinance can only serve to sabotage the intention of providing recourse to victims of sexual violence,” the statement said.
The introduction of an ordinance — ahead of the budget session in parliament scheduled to begin later this month — has been criticized by women’s rights activists and lawyers. “It is, on the whole, a very, very problematic ordinance that disregards many suggestions made by the Verma Committee,” said Ms. Kavita Srivastava. “It is too serious an issue for the cabinet to have gone ahead on its own, they could have waited for the budget session which is only twenty days away.”
Activists said that they would be issuing responses to the ordinance and asking for the legislation to be debated in parliament.
“They should have convened a special parliament session to the debate the question of sexual violence against women and discuss the human resources and financial resources required to implement new measures,” Ms. Raja said. “Because it has taken the form of an ordinance, there is no room for discussion or debate. Legislation cannot be made on the basis of popular opinion.”
Published on February 2, 2013 in The New York Times India Ink.