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Not in India: Why the anti-rape ordinance is a sham

by Lakshmi Chaudhry  Feb 4, 2013 15:33 IST

#OnOurMind   #Sexual assault ordinance  

Two events occurred in the last couple of days. One, the government announced its anti-rape ordinance. And two, Sonia and Rahul Gandhi paid a personal visit to the home of the Delhi gang-rape victim. Both were easy fixes and shared the same intent: to simulate political commitment to a hazardous cause.

For sixty-plus years this is what has passed for governance in India: passing progressive laws while keeping intact a compromised and broken system that precludes effective enforcement. Rapes occur around the world, even in the so-called civilised West --- a fact brought up over and again by columnists (usually male) who don't see what the fuss is all about.

Protests over the Delhi incident of rape. AFP.

Protests over the Delhi incident of rape. AFP.

But in no other advanced country is it as easy to rape a woman and get away with it -- to rely on the shame of the victim; the family's greater concern with its honour; a feudal and corrupt police force; investigative norms that are humiliating and violative; a judicial system that can take decades to deliver justice.

Sexual violence against women is a 'hot potato' for all the reasons outlined in the Verma committee report. To recognise its true nature and scope requires acknowledging not just patriarchy, but the more politically inconvenient reasons as to why rapes go unreported and unpunished in India.

Our law and order system incentivises rape, especially of women and girls who do not matter in the grand hierarchy of things. Like that 11-year old in Sikar who was languishing in a hospital, her genitals torn apart, months before the Delhi gang-rape. Her family is now receiving threats, says her 16 year old sister, "They say 'You are poor, what can you do? Take some money and take back the case'.

Contrary to popular self-delusion, these kinds of incidents may occur in Europe or North America but they are not routine. But they are far too common in towns and villages across India, so much so they don't even make national news. Most of us wouldn't have even known of the Sikar case if the Delhi gang-rape didn't become a national cause celebre.

In India, the female body is disposable, to be used at will, or discarded at the very moment of conception. Take, for instance, the debate over marital rape -- which is a punishable crime in many of the same countries we insist have far more reported rapes than us.

In India, however, a woman's body remains the property of her husband. The modern idea that a woman's body is her own is seen as so radical that the UPA government has preferred to entirely ignore the pesky Verma committe proposal on the matter of marital rape. And in failing to recognise this basic priniciple of female autonomy, the anti-rape ordinance has failed even as a symbolic acknowledgement of the root cause of sexual violence.

There have been many justifications offered for not treating spousal rape as a punishable crime, and most cite the unique aspects of the Indian context. Some argue that it is counter-productive in a patriarchal society to deprive a woman of the protection of her husband's presence. Others like Times of India blogger Prashant Pandey point to anti-dowry laws as a warning against progessive tinkering in India:

Not recognizing marital rape makes India a regressive country – more than a hundred countries already have similar laws. But recognizing it, with the kind of investigative mechanism we have in place, is equally dangerous...

If 85 percent of those accused under 498(A) were innocent, then it’s unfair to enact another act which could be similarly abused. It’s too sophisticated a concept for a feudal paternalistic society and an even more feudal and paternalistic police force. We must first implement police reforms, then enact laws on marital rape. Till police reforms take place, we must live with the opprobrium of not having laws on par with the western world. But then, when we compare our laws with the West, we should not forget the link between strict laws and efficient investigative capabilities.

The argument that we shouldn't have a law precisely because it is misused can easily be extended to great chunks of the Indian Penal Code. Thanks to the level of corruption in the police force -- and political interference from above -- almost every law on the book has been misused to harass the innocent and protect the powerful. So why not scrap them all?

And the '85 percent claim' is likely a misreading of conviction rates in 498(A) cases which stood at a paltry 19 percent in 2010. Then again, the conviction rate for dowry deaths in the same year was 34 percent. Should we assume all those not convicted of dowry deaths were innocent? Or should we entertain the possibility that especially in India, where the conviction rate more likely reflects the competence of our police force than the merits of any given case?

Marital rape is not a figment of some feminist's imagination: "According to the UN Population Fund, more than two-thirds of married women in India, aged 15 to 49, have been beaten, or forced to provide sex. In 2011, the International Men and Gender Equality Survey revealed that one in five has forced their wives or partner to have sex."

More importantly, it is not a" different" category of offense than rape outside marriage that requires less stringent punishment. The level of violence is often no less extreme. Under the guise of protecting conjugal rights — which ought to be grounds for divorce not rape — we have left intact the notion that a man essentially owns his wife. A wife he can no longer beat or threaten, but can still rape. She is the one woman he can sexually assault with full legal impunity.

But here's the more important point: We keep debating the exclusion of marital rape as though it matters in a system that has entirely failed to deter rape, period. As one women's rights lawyer said about the marital rape provision, "On the ground, as lawyers fighting for women's rights, we know that a law to this effect will not make that much of a difference."

The prognosis will likely hold true for the lofty sounding provisions that were included in the anti-rape ordinance. To turn Pandey's argument on its head, given the absence of a meaningful and effective judicial process, the new laws may at best achieve this:  A rapist who once managed to evade a five-year jail term, will now duck twenty years in prison.

Our dysfunctional judicial system is the perfect form of legal kryptonite, negating any effort to ensure justice. "It won't work in India," becomes the chant of naysayers of all stripes. And in proposing high-minded anti-rape laws unaccompanied by political and judicial reform, the UPA government is dutifully fulfilling their prophecy. Our entrenched corruption, misogyny, hierarchy become a self-propogating excuse.

No punishment, however high, for rape, stalking or acid attacks will be effective in a system that is broken. Legislation cannot be a substitute for genuine reform which requires legitimacy, enforcement and accountability. Or as Supreme Court lawyer Brinda Grover put it more simply at the Kolkata Literary Meet, "Send 10 to 20 cops to jail this year and you can be sure they will start filing FIRs." Now that will work in India, right?