JNU Students’ Union’s response on The Criminal Law (Amendment) Ordinance, 2013
The JNUSU expresses its dismay over the hasty and non transparent promulgation of ‘The Criminal Law (Amendment) Ordinance, 2013’ by the President of India on 3rd January 2013. The government seems to be guided by subjective concerns against accepting many of the far reaching recommendations of the Justice Verma Commission. By acting only on select aspects of legal reforms, it has ignored initiating concrete changes in Constitution, governance, policing and education. (JNU Students’ Union response to Justice Verma Report)
Since the Union Government is nostranger to debates on laws, the prejudices contained in the Ordinance cannot be dismissed as mere oversights. In fact the thrust of the Ordinance seems directed at ‘sexual regulation’ rather than curbing crimes against women by advancing their rights. This is not what the youth of the country wanted. We urge upon the Parliament, which is going to be in session soon, to carefully examine the critiques being forwarded by women’s and student groups and amend this faulty Ordinance without delay.
The following aspects of the Ordinance need to be changed without delay:
1. 1. The Ordinance in Sec. 375 collapses the distinction between rape and sexual assault, i.e., penetrative and non-penetrative sexual assault. Since the definition is based on the child sexual abuse law, which is qualitatively different in nature from sexual assault against adults, even sexual contact is punishable by seven years to life, with or without fine. Such a definition will become a tool in the hands of moral policing brigades, khappanchayats, family or Police to regulate consensual sexual activity among the young. Sec. 376E IPC makes repeat offenses of 375 punishable by a minimum of ten years extending up to imprisonment of natural life. This is also applicable to young people under 18. This raises concerns as to whether the government has acted in favour or fundamentally against the young.
2. 2. Gender neutrality in the framing of 375 and 376 creates the conditions for greater harassment of women and shall substantially increase the difficulty in access to justice for women. As women can be charged with sexual assault (including rape) and threatened with a jail term, there may be large scale registration of counter charges of rape and sexual assault against women by the accused. Given the wide spread hostility displayed by the Police in registering cases on the complaints of women, such a law is liable to be misused. It defies logic and basis as to why the government is so keen to view women as potential rapists. The Justice Verma Commission’s approach of defining perpetrator as ‘male’ and victim as ‘person’ (female/male/transgender) seems more judicious.
3. 3. The language of ‘outraging the modesty’ has been retained in Sec 354 and 509. This will continue the saga of character assassination of women complainants. The Justice Verma Commission had asked for 509 to be repealed, and rephrased 354. The ordinance rejects the Verma rephrasing of 354 and puts in Vishaka Judgement definitions instead. Since the Vishaka definition was purposely a very general one intended for a civil law, the use of that definition as a criminal one is unfortunate and perhaps unenforceable. Criminal law implicates the Indian Evidence Act, so how for example would you be able to show beyond reasonable doubt that X act was unwelcome or did indeed take place. Furthermore, the very general 354 and 509, together with 375 gives tremendous latitude to the cops to file cases under 354 rather than 375 as the latter has the most stringent punishment.
4. 4. The Ordinance also excludes marital rape from the ambit of law. The resistance to grant the unequivocal right to bodily integrity to women in law is perplexing. India is the only democratic country in the world not to include marital rape within the ambit of law. This deep gender bias wherein the husband can use force as a matter of right against wife must be rectified.
5. 5. The continued protection of armed forces from prosecution for sexual assault in AFSPA governed regions presumes that women’s bodily integrity is expendable when it comes to safeguarding the territorial integrity of India. This again undermines the rights and status of women and must be discarded without delay. The ordinance refuses to hold a police or armed forces officer responsible for crimes against women committed by his or her juniors. This is especially glaring as in conflict zones or custody, sexual assault is often used by the armed forces as a weapon to subjugate a people which cannot be possible if higher level officers do not allow it or take steps to curb it. Justice Verma had said that prior permission from Govt should not be required to prosecute a public servant, judge, magistrate or army officer for a complaint of sexual violence. The ordinance rejects this on the plea of ‘false complaints’.
6. 6. Moreover, by refusing to make the State liable for compensation and rehabilitation of victims, the Ordinance continues to view widespread crimes against women in the country as matters between individuals rather than a general phenomenon and State responsibility. This is a complete rebuff to the spirit of the Verma Commission’s Report that sought to hold the State responsible for the state of affairs vis-à-vis women.
7. 7. This ordinance will not help a Ruchika Girotra, a Soni Sori, a Thangjam Manorama, a Geetika Sharma or a Rupam Pathak, because it continues to maintain the existing in-built protections in our laws that make powerful men think they can get away with sexual violence. Justice Verma had called for measures to prevent those accused of serious sexual violence to be elected as MLAs and MPs – the ordinance rejects this.
The JNUSU is still examining the fine print of the Ordinance. The JNUSU is deeply disturbed by the overall thrust of the Ordinance which is directed against youth and women and shall complicate the legal framework in the country manifold. We hope that the government and the Parliament will make suitable amends to the Ordinance to truly advance the rights of people and women.
The JNUSU will coordinate with students and women’s groups to plan future action in this regard.
V. Lenin Kumar (President, JNUSU)
Shakeel Anjum (General Secretary, JNUSU)
5th Feb. 2013