Ordinance on rape: All-or-nothing approach to Verma report is self-defeating

The cries of betrayal and anger emanating from women’s groups over the government’s ordinance to give effect to only a part of the Verma Committee Report on gender justice are only to be expected.

However, part of the fault lies with the activists themselves. The government can be accused of trying to pretend it is moving in the right direction by cherry-picking the Verma recommendations it likes, but not for doing the wrong things. Doing some things that needed to be done is hardly a reason for sharp criticism.

The real problem is that the activists behind the report assume that implementing the report is going to solve most issues of gender injustice in India. And they want it now, never mind who feels excluded from the discussion, or what the impact will be on sections that don’t relate to gender justice.

In fact, the sum total of the arguments given by the activist groups can be stated simply: “We worked our butts off to give you a framework to change laws, societal mindsets, the police, and the system of discrimination against women in 30 days, now you’d better deliver all that we want in the next 30.”

Protests in Delhi against the ordinance passed by the government to tackle crimes against women. AP

Protests in Delhi against the ordinance passed by the government to tackle crimes against women. AP

This may be an oversimplification, but the fact is large sections of the Verma report should only be seen as a vision document for direction rather than an action plan for immediate implementation.

Large tracts of the report constitute a passionate lecture on the evils of patriarchy rather than being grounded in Indian realities. The hi-falutin’ recommendations – full of quotes from foreign scholars - takes no note whatsoever of the current capabilities of the Indian state, making implementation of some of the more far-reaching proposals almost impossible.

The Verma recommendations can be classified into five broad slots: (1) those involving changes to the law, (2) those involving reform that go beyond gender issues, (3) those that call for no changes in the law but for rigorous implementation of existing law, (4) attempting broader changes is social attitudes and mindsets to eliminate patriarchy, (5) proposals on superfluous things that may be nice to have, but are little more than symbolic.

In category 1 are all the changes proposed in the government ordinance, where marital rape has been omitted; in category 2 are changes in the Armed Forces Special Powers Act, changes to the Representation of People Act  and police reforms that actually go beyond just gender; category 3 involves the actual infrastructure and attitudes for the delivery of gender justice (police sensitisation, judiciary sensitisation, creation of fast-track courts, etc); and category 4 involves changes in parenting and schooling of children so that children are raised without gender biases. The fifth category includes ideas like a separate bill of rights for women, street lighting, allowing more hawker zones, etc.

The mistake the women activists are making is the same as that made by the Lokpal agitationists of 2011-12. The Anna movement offered the Jan Lokpal Bill as a panacea for corruption. It didn’t finally get traction because it was so draconian, and there was opposition not only from politicians, but even some civil society groups.

The Verma report has a strong urban bias resulting from the fact that most of its active contributors were modern city-bred young women and men. The report is out of touch with the lives Indians really lead in small towns and villages.

The report thus faces the danger of being consigned to the same place as the Jan Lokpal Bill.

Now, let us consider the big objections being raised to the government’s ordinance and general approach to the issue.

Marital rape: Activists and feminists are right to flag non-consensual marital sex as equivalent to rape, but the government is right to not rush into this making this change immediately. It is all right to define this act as rape, but the remedies probably need to be more nuanced than in the case of rape. For three reasons.

One, equating non-consensual marital sex assaults with any other rape means the punishments have to be the same. This is fine as long as the woman is willing to consider breakdown of marriage as an acceptable byproduct. But what if she is not? Which marriage can survive a seven-year (minimum) jail term for the man for marital rape?

Two, what happens in cases where the man is the only bread-winner in a case involving marital rape?

Three, the question of punishment for marital rape needs both calibration and better deliberation since it could impact the whole family, and not just the accused man. It may end up creating unintended victims.

AFSPA: The Verma recommendation that rape by armymen should be tried under civil laws makes sense, but the Armed Forces Special Powers Act has to be seen not only as an instrument for hiding gender violence, but human rights in general.

The AFSPA applies only in zones of conflict, and the army, which is the one paying the price in blood in these areas, has to be taken along while making this change. The AFSPA needs change to incorporate strong provisions and remedies against human rights violations, and not just rape. AFSPA is not merely a gender issue.

Police reform: There’s little doubt that police reform is very critical for better gender safety and justice. But there are three issues here – none of which can be addressed by the centre alone.

Law and order is a state subject, and hence police reform has to be done at the state level. Despite several interventions by even the Supreme Court, the states have been reluctant to reform.

Secondly, police reform – which means freeing the police from the vice-like grip of politicians - is vital not only for gender justice, but justice in general. It isn’t as if the police are beastly only to women. The aam aadmi gets little help from the policeman, unless he can show real political clout.

Thirdly, most changes in the police’s attitude to women and rape involve implementing the law, and not writing new ones. Gender-sensitisation does not need legislation, but consistent implementation of the right protocols and training. This is a different challenge from merely changing the law – which is the easy part.

The issue of police reform is not something that will happen without a great buildup of public pressure, and for this women’s groups have to align themselves with other civil society groups to ensure it happens.

Political reform: The move to debar politicians from contesting elections if the courts take cognisance of rape charges (or other heinous crimes) is unlikely to find political support. This is not a gender issue alone, even though Verma may have made bold suggestions in this regard.

Women’s groups need to align with other forces to pressure politicians on change instead of pretending that this is only a gender issue.

Systemic change: The changes we need to see in society to move towards gender equality involve better parenting, better schooling, and creating an infrastructure for counselling and support, both for victims of sexual assault and discrimination and the victimisers.

These are long-term programmes that need to be taken up separately and continuously, both at the centre and states.

Bill of rights: There is no case for a separate Women’s Bill of Rights. For a report that draws so heavily from the universal declaration of human rights and constitutionalism and republicanism, the Verma Committee had no business trying to pretend that women need a separate bill of rights. If human rights are not good enough for women, they are not good enough for men too.

The government has said it has done all it can. PTI

The government has said it has done all it can in an ordinance. PTI

The real problem is this: the capacity of the Indian system to deliver justice to anyone is suspect. If you think of the humble policeman manning the remote chowki, what are the chances that he will be gender sensitive, leave alone equipped to deal with a larger list of crimes against women, including marital rape?

The activists who are now shouting betrayal should, instead, be prepared to continue the debate and public discourse indefinitely till society is more willing to implement the change they would like to see.

The Verma Committee Report is a journey, not the destination. By prematurely rubbishing the government’s tentative steps to change the law, the activists are in danger of making the good the enemy of the best. Society moves forward by choosing the better of two options, and not necessarily by choosing the best – which, in any case, is a matter of opinion.

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