Piecemeal approach

Print edition : March 08, 2013

THE commitment of the United Progressive Alliance government to women’s issues has come under scrutiny notwithstanding the lofty announcements at the Congress’ brainstorming session in Jaipur in January. Within days of the submission of the much-lauded Justice J.S. Verma Committee report suggesting amendments to the criminal law, the government decided to issue an ordinance, considering the recommendations in what seemed to be a piecemeal and selective manner.

The Criminal Law Amendment Ordinance, 2013, to amend the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act (IEA), 1872, has not been welcomed widely. Despite objections from political parties, mainly the Left and progressive women’s groups, which had submitted comprehensive and forward-looking suggestions to the Verma Committee, the ordinance was promulgated by the President on February 3. Approval for it by Parliament will have to be sought within six months. However, the UPA will have no problem pushing the ordinance through as the Bharatiya Janata Party, the principal opposition party, has welcomed it.

The ordinance, while prescribing harsher punishment such as the death penalty in circumstances where a victim dies or is pushed into a vegetative state, has also introduced into its ambit offences such as voyeurism, stalking, disrobing of a woman and acid attacks.

It also has amendments to the Indian Evidence Act, where evidence of character or previous sexual experience of the victim will not be relevant in a case of rape, gang rape or molestation. In the prosecution of such offences where consent is an issue, the ordinance lays down that it will not be permissible to adduce evidence or put questions about her character or previous sexual experience in the cross-examination of the victim. New sections on public servants disobeying the directions on sexual harassment and punishment for the same, a wider definition of trafficking which goes beyond trafficking for prostitution and includes trafficking of minors, and life-term punishment for public servants involved in trafficking of a minor are welcome provisions.

Instead of a comprehensive criminal amendment law dealing with various aspects of violence against and the safety of women, the ordinance has left out many significant issues that were raised by women’s and other groups over the years. The tearing hurry for an ordinance, therefore, seems misplaced.

Some of the glaring omissions in the ordinance are the exclusion of marital rape as an offence, the failure to hold command officers accountable for sexual violence and rape by their subordinates, and the exclusion of rape by Army personnel. The ordinance’s recommendation of death penalty is problematic as even the Verma Committee had recommended only life term for those convicted in extreme cases.

Another problem is that the ordinance fails to make a distinction in the degree of punishment for penetrative and non-penetrative forms of sexual assault. There is no gradation of punishment—a minimum term of seven years that may extend to life has been prescribed for both categories of assault. Its approach to the death penalty even for a non-penetrative form of sexual assault too is problematic, especially in a repeat case of sexual assault. In fact, it has been pointed out that the prescribed punishment for aggravated and repeated sexual assault as in the Suryanelli case is less severe compared with a person convicted of repeated sexual assault of a non-penetrative nature. One other area that the ordinance has been particularly insensitive to is raising the age of consent for sexual intercourse from 16 to 18 as is specified in the Protection of Children from Sexual Offences Act (POCSOA).

There was a lot of protest when the POCSOA was enacted last year as it did not contain an age proximity clause, which meant criminalising sex between a 16-year-old female and a 17-year-old male. Women’s groups and others had argued that an age proximity clause was necessary as individuals need not be criminalised for indulging in sexual acts if the age difference was negligible.

Women’s groups cited cases of harassment of young couples by the police and bodies like community panchayats where, using the law, false charges of rape were filed against the men concerned. In fact, as per the ordinance, sexual intercourse with a girl under 18 (irrespective of the age difference) will come under the category of aggravated sexual assault and invite a minimum punishment of 10 years. Interestingly, though women’s groups have demanded it, punishment for sexual assault by Army personnel, a public servant, or a police officer has not been treated as aggravated sexual assault. While sexual assault would attract a punishment of not less than seven years, extending to imprisonment for life and a fine, sexual assault by a member of the armed forces, or the police or a public servant, and persons in charge of jails, children’s homes, women’s homes and hospitals would only be awarded a punishment of 10 years extending to life imprisonment and a fine.

It may be recalled that a highly defective version of the Criminal Law Amendment Bill, 2012, was introduced in the Lok Sabha on December 4 and is pending approval by both Houses of Parliament. It was referred to the Parliamentary Standing Committee on Home Affairs. Like its new avatar, that Bill also sought to amend the IPC, the CrPC and the IEA to review laws relating to rape and sexual offences. With the promulgation of the ordinance, the Standing Committee’s responsibility to review the 2012 Bill has become redundant.

In a strongly worded statement, the Communist Party of India (Marxist) expressed its disapproval of the ordinance on both procedural and substantive grounds. It stated that it was against democratic norms to introduce an ordinance when Parliament was due to convene in three weeks. The ordinance, it said, rejected the Verma Committee’s recommendations on making rape a gender-specific crime, on increasing the punishment for public servants found guilty of dereliction of duty, on stronger punishment for acid attacks, and on a guarantee of compensation for acid-attack victims. The ordinance appears to have diverted attention from serious questions raised about state culpability in matters such as bringing the armed forces in the ambit of criminal law.

Thirteen national women’s organisations also opposed what they called the “selective approach” of the government to the Verma Committee recommendations. The government, they said, should have adopted a holistic approach by incorporating the comprehensive Verma Commission report. They argued that the present piecemeal ordinance could only serve to sabotage the intention of doing justice to victims of violence. Significant amendments concerning culpability of the state; punishment of public servants, police personnel and officers, including those with command responsibility; and bringing Army personnel under the jurisdiction of criminal law were excluded from the ordinance as were issues of sexual autonomy, the right of a woman not to be raped within marriage, and the concerns of those with alternative sexualities. The government, they said, had not done justice to the Verma Committee report in these aspects.

The Verma Committee had specifically recommended that rape be made gender-specific as far as the perpetrator is concerned, but the ordinance rejected it and this is tantamount to diluting the seriousness of the crime against women. Further, criminalising consensual sex between young adults in the age group of 16-18 was contrary to the recommendation of sexual autonomy mentioned in the committee report.

The government, they said, must initiate a process of consultation with women’s organisations that have been engaged in this for the past several decades and move the legislative amendments in Parliament keeping in mind the holistic perspective of the Verma Committee recommendations as reflected in the Bill of Rights proposed.

T.K. Rajalakshmi