Challenging Sexual Assault. Principles. Practice. Power. Prejudice

CHALLENGING SEXUAL ASSAULT

THE PRINCIPLES. THE PRACTICE.

THE POWER. THE PREJUDICE.

Newsletter Sept 2013 - Aug 2014

Like too many others before it, this Saheli newsletter is way off its scheduled date. Way, way off, in fact! But whenever this issue was to come out, it was inevitable that we would be writing at considerable length about the heightened threat of sexual violence faced by women today, the repeated and increasingly brutal nature of the crimes we are witnessing, the gross use/misuse of power by those who commit the crimes, those who condone it, and those who are duty bound to prevent it or help survivors seek justice. Following the gangrape and consequent death of a young student in Delhi in December 2012, the furore that followed and pressure from women’s groups resulted in the UPA government setting up the Justice Verma Committee to relook at the issue of sexual violence on women and give recommendations for redressal mechanisms and provisions for safety for women (The Saheli newsletter dated Jan – Aug 2013 detailed these processes). This resulted in the amendment of criminal laws relating to sexual assault, now known as Criminal Law Amendment Act (CLA), 2013.

In this issue we look at some recent cases of sexual assault, analyse their cross connections with several axis of power and prejudice, look afresh at the CLA, and see where we stand today as women in India in the context of sexual assault.

First, a quick summary of some of the most talked-about cases of the last year.

1. The Asaram Bapu case. A self-styled guru and ‘godman’ Asaram has repeatedly been accused of a range of crimes from land-grabbing to murder and corruption to rape. But finally, it took the courage of a 16-year old girl and her family to get the police to act. They accused him of sexually assaulting the young girl in his ashram in Jodhpur under the pretext of exorcising her of ‘evil spirits’. The family went to Delhi to confront Asaram, and he refused to meet them. So they approached the Delhi Police who conducted medical tests which confirmed the allegations and booked Asaram under Sections 342 (wrongful confinement), 376 (rape), 506 (criminal intimidation) of the Indian Penal Code, and Sections 23 and 26 of the Juvenile Justice Act and (5(f)/6, 5 (g) and 7/8) of the Protection of Children from Sexual Offences Act (POCSO), and transferred the case to Jodhpur Police.

Despite such serious charges being levelled against him, Asaram avoided arrest by staying closeted in another ashram (in Indore) while his ‘devotees’ clashed with journalists and policemen outside! Eventually though, he was arrested by the Jodhpur Police; and the bodyguard who escorted the girl to Asaram prior to the crime, and warden of the hostel in Jodhpur, both surrendered to the police. Currently, the cases against Asaram and four others are under process in District and Sessions Courts in Jodhpur. However, the most recent and disturbing news related to the case is that a key witness of the prosecution, Asaram’s former aide and ayurveda doctor, Amrut Prajapati died in Ahmedabad following an attack on his life by two unidentified assailants in Rajkot in May 2014.

2. The Shakti Mills case. On 22 August 2013, a young photojournalist interning at a magazine was on an assignment with a male colleague to document Shakti Mills, one of the deserted textile mill complexes that still dot the skyline of south Mumbai, post the systematic closures of factories in the city. When they reached Shakti Mills, a group of young men pretending to be officials led them to a secluded part of the mill where they beat up the young man and gangraped the woman. The men also took photos of her on a cell-phone threatening to release them on the internet if she dared to report the crime. But the survivor not only told her colleague what had happened but also bravely made a statement to the Mumbai Police, leading to a registration of a case.

On hearing about the incident, a telephone operator approached the police stating that she had also been raped at the same location on 31 July 2013. The accused were arrested within 72 hours and charged under various sections of Indian Penal Code (IPC), including 376(d) for gangrape, section 377 for unnatural offence, 120(b) for criminal conspiracy, 34 for common intention and 201 for destruction of evidence. As the case proceeded in a fast track court, three of the accused confessed to have also gangraped the telephone operator. On 20 March 2014, a Mumbai Sessions Court convicted all 5 accused in both cases on 13 counts, and awarded death penalty to the three repeat offenders‒ making Maharashtra the first state to enforce capital punishment provided under Section 376 E of CLA. The two other accused were awarded life imprisonment. The two minors involved in both gangrapes are being tried separately by the Juvenile Justice Board.

3. The Tarun Tejpal case. In November 2013 Tarun Tejpal, then Editor-in-Chief of Tehelka magazine was accused of sexually assaulting a female colleague. The incident allegedly happened at the ‘Tehelka Thinkfest’ an event organised by the magazine in Goa that had already been mired under many funding related controversies. According to the survivor, Tejpal assaulted her on two separate occasions on November 7 and 8, 2013, forcefully committing oral sex on her and inserting his fingers into her vagina. Technically, this case falls under the definition of both sexual harassment at the workplace, as well under CLA which defines rape not just as peno-vaginal penetration, but as a violation of the bodily integrity. When the woman filed a complaint within the organisation, Tejpal did not deny the allegations, merely calling the incidents a ‘lapse of judgement’ and a ‘misreading of the situation’. He then proceeded to decide his own ‘atonement’‒ leave of absence for six months, which was considered ‘adequate’ by the management. However, that was not the case for the survivor. Before she could decide a future course of action, the story was ‘leaked’ to the mainstream media and a huge storm ensued.

Tejpal was arrested in Goa and booked under Sections 34, 376 and 376 (2) of the IPC for sexual harassment and rape, and released on bail after 5 months. But the lack of appropriate response within the organisation, its failure to set up a complaints’ committee in accordance with the Vishaka Guidelines on sexual harassment at the workplace (and indeed the absence of such a committee in the first place) uncovered the deep rot within media houses across the country, with organisations like The Hindu finally setting up such mechanisms for redressal and prevention. Six journalists and editors including the woman resigned from Tehelka.

4. The Khurshid Anwar case. The Executive Director of an NGO called Institute for Social Democracy (ISD) in Delhi, Khurshid Anwar was known to many of us as a colleague and co-traveller in our anti-communal struggles. In September 2013, Anwar was accused of drugging and sexually assaulting a 23-year old woman after a party at his residence. A few days after the incident, the survivor approached Madhu Kishwar, founder of the journal, Manushi and President of Manushi Sangathan for advice. For reasons best known to herself, Kishwar recorded the statement of the survivor on video instead of working with the woman to lodge a police complaint. Even as Board Members of ISD were trying to initiate proceedings as per Vishaka Guidelines, the video recording of the survivor’s testimony found its way into social networking sites and later on two TV channels on 17 December 2013. The morning after, Anwar committed suicide. The woman recorded her statements with the Delhi Police on 23 December, 2013 under Section 161 of CrPC and a Magistrate under Section 164. Consequently, a complaint has been filed with the police but investigation is yet to begin in earnest. Meanwhile the woman is understood to have left her job and the city.

But the social media space remains vitiated. On the one hand, friends of the survivor have used these platforms to visibilise her suffering. Friends of Khurshid have in turn, wittingly or unwittingly, maligned the woman and her supporters (including some feminist comrades).

But as an open letter from several feminist individuals and organisations (including Saheli) urges, “The suicide, while heart-breaking, cannot be taken to establish either guilt or innocence, and indeed, is all the more reason why we should all call for an enquiry to bring speculations to a close... While one person in this story has died, the other continues to live under a cloud of suspicion and intimidation, and the resolution of the issue is necessary for closure, for both the complainant and for the friends and family of Khurshid.” (See the complete statement at http://kafila.org/2014/02/17/feminist-reflections-onthe- tragic-suicide-of-khurshid-anwar/)

5. The Bhagana case. On 23 March 2014, at around 8 pm four young Dalit girls (including two minors) from Bhagana village of Hissar district of Haryana had gone to relieve themselves when five men from the dominant Jat caste abducted them in a car. The girls were sedated, gangraped and later left at the Bhatinda Railway Station. When the families tried to file an FIR on the incidents, they faced enormous resistance and intimidation from the police as well as the sarpanch, presumably because two of the accused were his relatives. The medical examination of the girls confirmed rape, however, this included the much criticised ‘two-finger test’, despite guidelines issued against its use by the Ministry of Health.

Finally, all five accused have been arrested under Sections 366 (kidnapping), 376 (rape) and 120B (criminal conspiracy) of the IPC. But the families of the survivors and in fact, the entire Dalit community of the village have been intimidated into leaving by the dominant Jat community. They have been protesting in Delhi for justice since April 2014, and have moved the Supreme Court with a petition demanding faster trial on their cases. However, they have had to face further intimidation by the Delhi Police who forcefully tried to dislocate them from their protest site at Jantar Mantar on 4 June 2014. Cases such as this are a stark reminder of the uphill battles of the Dalit community to seek justice, especially in states like Haryana which has seen more than a 100 incidents of rape of Dalit girls and women in the last year. (See Box on “Speak! The Truth is Still Alive: Land, Caste and Sexual Violence on Dalit Girls & Women in Haryana” 2014, a report by Women Against Sexual Assault and State Repression (WSS – a platform that Saheli is also part of).

6. The Badaun case. It will be years (if ever) before the residents of the village of Badaun in Uttar Pradesh forget the morning of 28 May 2014, when they woke up to two young girls of a backward caste (Shakya) from their village hanging from a tree. In an apparent case of abduction, gangrape and murder, the girls had been picked up by a gang of men of the dominant Yadav caste when they went out to relieve themselves in the evening. When they failed to return, their fathers approached the local police station to lodge a complaint but were told to return home. When they refused, they were mocked, beaten up and their complaint torn to pieces by two inspectors on duty. The villagers searched for the girls through the night, only to find their bodies the next morning. The police confirmed that the girls were raped and their death was caused by hanging. Following the leads from the DNA samples found on the victims, the police identified the perpetrators and arrested three men, who confessed to raping and murdering the girls. The main accused was arrested a few days later. The state government which had come under intense criticism for its insensitive response to the horrific crime suspended the two erring police constables and transferred the District Magistrate as well as the Senior Superintendent of Police in Badaun.

However, it is apparent that the violence on the young girls of Badaun and the public display of their bodies was intended to intimidate the lower castes and keep them under threat of further violence. Tragically, this incident has been followed by two more of a similar nature in other parts of Uttar Pradesh. In the latest development, the enquiry of the Badaun case has been handed over to the CBI after a directive by the UP High Court. The CBI has sought exhumation of the bodies for a fresh post mortem, and described the earlier one as ‘suspicious,’ raising questions on the investigations by the UP Police. However, all these administrative delays and setbacks have had a lasting impact on the case. With the arrival of the monsoons, the bodies have been submerged and hence can no longer be exhumed. With that, the possibility of justice in Badaun recedes even further.

A Law that is Differently Applicable?

Case after case highlights the fact that the legal and state machinery has exposed itself as being less useful, accessible and sympathetic to the poor and the marginalised.

The brazenness with which Asaram eluded arrest, the alacrity with which Tejpal manipulated stories in the media while still in jail are just some examples. In the Badaun case, the investigation was actively sabotaged by the police and bureaucracy that tried to place the blame within the community. For instance, on 7 June, 2014 the DGP of Badaun told reporters that they could not rule out the possibility of ‘honour killings’, and insinuated that one of the girls ‘may not have been raped’ and that the violence could have been linked to a property dispute, thus trying to change the narrative away from caste based violence. These statements were in stark contrast to the medical reports confirming rape of both the girls, and these speculations were later found to be baseless. This pattern of denial of the role of caste domination and terming it a crime within the community has been consistently seen in the Haryana cases of rape and murder of Dalit girls.

In the Bhagana case, the involvement of the relatives of the village sarpanch in the gangrape was evident when he indicated some knowledge of the whereabouts of the survivors to the family. Not only does that cast him as an accomplice to the crime, he compounded his involvement by intimidating the survivors without any fear of the consequences of doing so. Yet he has not been implicated in any way.

The survivors of Bhagana and their supporters have not only been victims of inaction by the state, but also of the persistent attempts by the police to suppress their voices. On 4 June, 2014 the Delhi Police attempted to vacate the protestors from Jantar Mantar, one of the few corners in the city of New Delhi to stage ‘legitimate’ protest. In response to a complaint lodged against police brutality during this incident by the Bhagana Kand Sangharsh Samiti, the NHRC has issued a directive to the Delhi Police seeking a report.

Sexual Violence and the Politics of Power

Feminists have always argued that sexual crimes are assertions of power, not lust or desire. The spectrum of cases described above illustrate how such crimes are related to various axes of power‒ social stature, class privilege, caste domination, access to the media, and so on.

In the Asaram Bapu case, we see a self-proclaimed ‘godman’ using his influence over devotees to first exploit the vulnerable, and then to evade arrest for nearly two weeks. Later we see him engineering a social media campaign proclaiming his innocence, alleging the accusations against him to be a mainstream media vendetta to malign him.

Similarly in the Tarun Tejpal case, not only did Tejpal proclaim the case a ‘right wing conspiracy’ to discredit him, eminent personalities in the fields of art, culture and journalism stepped out in his support. Through mainstream media and the social space, they consistently ‘vouched’ for Tejpal and raised questions on the woman’s allegations and ‘character.’ But as the young journalist responded in a public statement, “Suggestions that I am acting on someone else’s behest are only the latest depressing indications that sections of our public discourse are unwilling to acknowledge that women are capable to making decisions about themselves for themselves.” The woman has also repeatedly stated in court that she has also been intimidated by those close to Tejpal.

Several of the cases of sexual violence in Haryana also seem to suggest that upward mobility of lower caste communities is generating social anxiety among the dominant communities, which then asserts their power through violence on Dalit and backward caste women and girls. These are patterns of violence we have seen only too starkly in many other incidents of caste violence, like in Khairlanji.

Contrarily, in the Shakti Mills case, we see a reversal of some of these biases. Flavia Agnes, feminist legal activist and founder-member, Majlis, Mumbai, has cited this case as one of ‘progress’ with the survivor expressing a strong desire to get back to work and life. This has forced a change of perception of rape victims away from just being ‘zinda laash’ (‘a live corpse’ as Sushma Swaraj of the BJP, now Minister of External Affairs, had described the 16 December 2012 victim). On the other hand, public opinion as reflected in the media seems to unquestioningly accept the death sentences handed out to the convicted, all homeless, working class men.

Unlike heated debates in the Tejpal case of whether the provisions of sentence in the CLA are too harsh, there seems to be no concern or questioning in the Shakti Mills case. These are deeply troubling questions for women’s groups like Saheli that have consistently taken a strong position against death penalty and the push for harsher and harsher punitive measures. (See Box titled “Continuing to Say No To Death Penalty”).

Sexual Violence and the Games the Media Plays

From absolute silence on some cases to relentless sensationalised coverage of others, the role of the media in the cases under discussion has been varied, and calls for some examination. With the exception of ‘dramatic’ crimes as in Badaun, it remains close to impossible for victims of caste based violence to be heard, whether they are in villages, towns or even Jantar Mantar in Delhi. What has also been seen in the recent cases is highly descriptive accounts, dramatic re-enactments and reproductions of the assaults in graphic detail.

While Tejpal was still in custody, the Outlook magazine and an online daily called Citizen presented a very biased reading of the case in favour of the accused. The articles ‘interpreted’ some CCTV footage as well as the contents from the emails exchanged between Tejpal and the woman raising serious questions on ethics of such journalism. As a statement by the NWMI (Network of Women in Media, India) raising issues of the illegality of viewing, showing and commenting on the CCTV footage says, “We reiterate that the case against Tarun Tejpal must be fought in court, not in the media, and certainly not through illegal or unethical means. We would also like to highlight the fact that the news media are meant to speak truth to power, not to misuse power on behalf of the powerful against the powerless.” The release of the emails into social media is also in violation to a provision, meant to protect the identity of rape survivors, Section 228A of the Indian Penal Code makes it clear that “any matter” printed or published without the permission of a court that leads to the identification of a rape survivor could lead to a fine or jail of up to two years or both.

The recent rise of social media both empowers and complicates the scenario. A platform for interaction among individuals, it is also a place which, as Akhila Sivadas of Centre for Advocacy & Research, New Delhi, says, “feeds and in turns is fed by the mainstream media. But there remain tensions between the controls exerted upon the mainstream space and the free-for-all nature of the social space” she concludes. So on one hand, we have increasingly corporate-controlled media and messaging, and on the other, a space where misogyny and patriarchal prejudices seem to rule, often carrying out vicious campaigns against victims of violence, twisting public opinion in favour of the powerful and the guilty, and even violating the privacy of victims that mandated as non-negotiable by the law. Of course, this can also sometimes work against the accused as we saw in the Anwar case, where his identity was revealed even before the lodging of an FIR, with grave repercussions.

Then there is the tendency of the media to deflect from the issue at hand. In Bhagana and Badaun, what were clearly cases of caste based sexual assault were transformed in the public discourse to an issue of women’s access to toilets. While we recognise that this is a critical need for women in both rural and urban India, the fact remains that merely providing toilets for women will not protect them against such violence.

Sexual Violence and the Political Establishment: Divided by Party, United by Patriarchy

On 21 July 2014, even as hundreds of parents protested in panic and fear on the streets of Bangalore after a six-year-old child was allegedly raped at an elite school, Karnataka Chief Minister Siddaramaiah (BJP) snapped at a reporter saying, “Is this the only news? Is there no other news?”

Another persistent feature of the public discourse over the past year has been the surfeit of problematic statements about sexual violence being made by politicians and bureaucrats to the press. Across party lines, these statements demonstrate a deep seated misogyny and patriarchal callousness about women’s lives. Despite the so-called ‘awakening’ that the country experienced post December 2012, it seems little has changed.

Earlier this year Asha Mirje, a leader of the NCP took the same old ‘blame the victim’ line by saying that “Girls should be very careful about what they wear and at what time they move out in the city. Their body language should not invite the attention of the potential rapists lurking around in the streets.”

After a series of crimes in Uttar Pradesh, we hear Mulayam Singh Yadav, the leader of the Samajwadi Party (SP) and the father of the Chief Minister of Uttar Pradesh, Akhilesh Yadav brazenly say, “Boys will be boys… Boys commit mistakes. Will they be hanged for rape?” provoking wide outrage. Weighing in further on the death penalty, Abu Azmi, the chief of SP in Maharashtra said “If a woman is caught (in a rape case), then both she and the boy should be punished… any woman if, whether married or unmarried, goes along with a man, with or without her consent, should be hanged. Both should be hanged.”

The truly disheartening thing here is that these politicians – united in their dismissal of sexual violence across party lines, across states, across gender – are the ones we must choose between to vote into the government, something that makes their statements different and more serious than pronouncements by godmen like Baba Ramdev or members of Khap Panchayats. Unfortunately bureaucrats in positions of power in institutions which also address instances of sexual violence - be it the women’s commissions or even the Central Bureau of Investigation (CBI) offer little solace. Consider what Ramsevak Paikra, the Chhattisgarh Home Minister from BJP who is responsible for law and order said on June 7, 2014, “Such incidents (rapes) do not happen deliberately. These kind of incidents happen accidentally”, and of course according to Babulal Gaur, the Madhya Pradesh Home Minister (again of BJP), “Sometimes it (rape) is right, sometimes it’s wrong... ”

Then there is Vibha Rao, Chairperson of the Chhattisgarh State Women’s Commission who said, “Women display their bodies and indulge in various obscene activities. Women are unaware of the kind of message [their actions] generate.” Meanwhile Ranjit Sinha, Director of the CBI, while making a case for legalising betting in sports, argued “If you can’t prevent rape, enjoy it”.

The message from the political and bureaucratic establishment is clear: there is little thought, understanding and political will to address the systemic issue of violence against women, and the attitudes that fan its flames.

Over time such statements cease to shock us. But surrounded as we are by such attitudes, the shockers never seem to stop rolling in. In early January this year, within weeks of the Aam Aadmi Party taking power as the state government in Delhi, their Law Minister, Somnath Bharti, demonstrated a new level of racism and sexism. Supposedly responding to complaints of drug trafficking and prostitution, he carried out a midnight raid at Khirki extension, a residential colony in South Delhi. Bharti led a mob to attack a group of African women, forcing them to urinate in public to give ‘samples for medical tests’ and then proceeded to enter the All India Institute of Medical Sciences asked to ‘see’ for himself what was going on at the hospital! The women have alleged that they were abused, groped, beaten and subjected to racist remarks during this entire episode.

The NHRC issued a show-cause notice to the government, and after investigations, said that “the African women were wrongfully restrained and humiliated without any fault of theirs as no drug was found from their possession. They were subjected to racist slurs, assault, humiliation, misbehaviour and molestation with threat of dire consequences.” While Khirki and several other localities in Delhi remain deeply polarised against African residents of the city, at least Khirki saw an effort to re-affirm its diversity through the “Antarashtriya Khirki Festival”, a multi-ethnic gathering of Khirki Extension residents from Nigeria, Uganda, Ivory Coast, and Manipur and Kerala, with music, dance and food to engage the local audience.

The Season of Feminist Bashing

In many of these cases, besides the victim and their families, the other ‘target’ of backlash and criticism have been feminists and other women’s rights activists. In the Tejpal case, the Managing Editor of the magazine, Shoma Chaudhary not only faced the brunt of the media but her home was gheraoed and pelted with stones by a mob led by Vijay Jolly of the BJP. Her feminist ‘credentials’ were questioned to the point of almost placing responsibility of the incident squarely on her shoulders. In addition, when the NWMI raised concerns about the unethical use of footage for the articles published in Outlook magazine and Citizen, journalists like Manu Joseph and Seema Mustafa retorted sharply, appealing to ‘more sober sections of society’ against what she called the feminists’ intolerance to differing views’ to the extent of constituting a ‘lynch mob to shoot the messengers’. Then of course, is the case of Anwar who several of his supporters have claimed committed suicide after being ‘branded a rapist’ by feminists without a trial.

This kind of backlash has also been widely witnessed in several recent cases of sexual harassment at the workplace, some of which are discussed in an article titled, ‘Working Out the Tensions’ elsewhere in this newsletter.

Whither the Way Ahead?

From the struggles against rape that started all over the country in the late 1970s to today, much has changed, but much remains the same. If the assertions of power, the caste dynamics, the ethnic tensions, the class discriminations continue unabated, there is a slow but subtle shift in the discourse around women and safety. If Mathura’s case alerted us to the pervasive nature of custodial violence and the patriarchal biases of the courts, then the December 16 case exhibited the emergence of a public demand for women’s safety, mobility and autonomy, something many women’s groups like Saheli have been demanding for decades.

Yet, even as we sought and received a recommendation from the Justice Verma Committee for the inclusion of marital rape in the amendments to the rape law, the CLA failed to include it. To compound matters, we live in times when the Delhi High Court in a recent judgment dated 7 May 2014 stated that “marital intercourse even if forcible, is not rape”. Clearly the challenges ahead are still overwhelming.

The State Minister of the Department of Women & Child of the new BJP led government; Maneka Gandhi recently announced the formation of One Stop Crisis Centres (OSCC). In its response to this proposal, the Lawyers Collective Women’s Rights Initiative has stated “To facilitate women’s access to justice, it is imperative that an OSCC provides the full range of services and responses to the woman including police and judicial responses, legal aid, health-care services, psychosocial counselling and other support services.” Yet, as Flavia Agnes in a recent article notes, “The lack of basic understanding of the various types of violence faced by women and children and the specialised remedies required by each category of victims makes it apparent that this cosmetic experiment is doomed to fail... Each time a gruesome incident becomes a media spectacle, the government responds by finding quick-fix solutions — a magic wand that will make violence against women disappear. There is also a constant desire to discard the old and find newer and fancier solutions. Latest is the announcement of setting up 660 rape crisis Nirbhaya Centres across the country, though several others have preceded this.”

In a joint response to the Ministry of Women & Child Development, the Citizens’ Collective against Sexual Assault (CCSA – of which Saheli is a part) has argued that “Violence needs to be understood and addressed as a structural issue deeply embedded in social institutions and not only as something that vulnerable individuals and communities may face in their lifetime. Gender based violence (as opposed to violence against women) is more inclusive and addresses violence against all persons including women, young girls and boys and transgender persons. OSCCs should be placed within public hospitals, public health centres (PHCs) or educational institutions, rather than be looked at as separate units. The literature shows that women and girls would approach a health care worker for help, rather than seek help from a new Centre. (It is) important to institute an impartial Monitoring Committee to review the performance of Nirbhaya Centres.”

Clearly, there are no easy solutions! If anything, the nature of violence, the brutality of crimes, and the insensitivity and misogyny we are witnessing is unprecedented and requires interventions at various levels. But we cannot allow ourselves to be paralysed. For ourselves and for the women of the future, our struggles can and will go on.

Box 1

Amendments in the Law. Two Steps Forward, One Step Back

The rape of Mathura in 1972 led to a nationwide mobilising of the women’s movement demanding, among other things, changes to the existing law on rape, and led to amendments in the Criminal Procedure Code in 1983, which finally came to include the category of rape committed when a victim is in state custody. The amendments also ruled that rape trials should be conducted as closed proceedings and banned the publication of victims’ identities. However, deep concerns remained about practices such as questioning the sexual history of the victim, her ‘moral character’, the two-finger test, or the courts ‘directing’ the rapist to offer to marry the victim. Finally, in 2002, an amendment to rules governing the presentation of evidence disallowed cross-examination of rape victims on her sexual history.

Post the events of December 2012, the government constituted the Justice Verma Committee (JVC) which proposed wide-ranging reforms to the laws and was largely welcomed by women’s groups. However, even before the Parliament could deliberate on these recommendations, an Ordinance was passed by the government which proposed harsh punishments, and seemed to signal a huge step back. In March 2013, the Criminal Law Amendment (CLA) was passed by the Parliament which did take on board many recommendations of the JVC.

The definition of rape has been broadened beyond peno-vaginal penetration, to include non-consensual penetration of any kind. In fact, the definition of consent now takes into account various power imbalances in situations that women may be in – custodial situations, communal/caste conflict, etc. A crucial proviso to Section 375 has been added that does not require a woman to prove she physically resisted the act of penetration in order to prove rape. Additionally, stalking, voyeurism, acid attacks, and forcible disrobing, all have been included as sexual offences. The CLA has also taken steps to acknowledge communal and caste-based sexual violence as aggravated rape. Further, free and immediate medical treatment to survivors of acid attack and sexual violence has been provided for, with penalties to health service providers for refusal.

But the definition of the victim remains limited. Contrary to countless submissions from women’s groups, queer groups, trans groups and others to the JVC and Parliamentarians seeking that the victim of sexual crimes be defined as a ‘person’ (taking into account the sexual violence faced by transgendered people and men), the CLA continues to define the victim of rape only as a ‘woman’. Only in the case of acid attack survivors does the CLA consider the victim gender-neutral.

Other concerns on the CLA include:

• The widening of the age net for statutory rape to 18 years, when it had stood at 16 years for 3 decades. Instead of recognising healthy and consensual sexual contact between young people, the Act criminalises it.

• The CLA does not consider marital rape be an offence as such complaints are considered a threat to the institution of marriage itself! Among married women, only those women who are separated, under judicial decree or otherwise have protection under the law.

• Although the JVC has recommended imprisonment for life as adequate punishment for rape, not death penalty, the CLA has retained capital punishment for repeat offenders. [See Box titled ‘Continuing to Say No...]

• While the CLA has clarified that no ‘sanction for prosecution’ is required for public servants charged with sexual offences, it has failed to do so for the armed forces. This is a huge setback in the struggle against laws like AFSPA under which countless cases of sexual assault and other rights violations have been committed. Towards disabling such impunity of state personnel, the JVC had recommended that authorities higher in the hierarchy be held accountable for dereliction of duty for crimes committed by those under their command, if they knew or should have known them. However, the CLA crucially fails to bring this protection for victims into its ambit.

In a statement issued on 23 March 2013, several individuals and women’s groups stated, “We now ask Government to take the next step towards comprehensive reforms outlined in the Justice Verma Committee report, and amend the Armed Forces (Special Powers) Act, 1958 and the Representation of People Act, 1951 to erase immunity and instil accountability across all institutions… we call upon the government, upon all political parties and citizens to join us in continuing this journey to justice and equal rights for women, and in vigorously implementing these laws we have fought so long and so hard to get.”

Box 2

Speak ! The Truth is Still Alive: Land, Caste and Sexual Violence on Dalit Girls & Women in Haryana 2014

A WSS REPORT

In the past few years, Haryana has been witnessing a relentless series of gang rapes, murders and sexual assaults against Dalit girls and women. However, the incidents are dismissed by officials as ‘isolated incidents’, even as the patterns of caste domination and patriarchy stand out clearly. Bringing attention to this onslaught is a report titled “Speak! The Truth Is Still Alive” by WSS (Women Against State Violence and Sexual Repression, a network of which Saheli is also a part) that brings some of these cases under scrutiny, exposes the institutional mechanisms that provide immunity and impunity to perpetrators, and collude with them to attack and intimidate those who are struggling for justice.

Based on a series of visits by WSS members to villages in the districts of Rohtak, Hisar, Jind, Karnal and Kurukshetra, and interviews with some survivors and their families, as well as lawyers, the report analyses the interlinked operation of caste, patriarchy, state institutions and neo-liberal policies.

This effort on the part of WSS is particularly important for the need to forge solidarity between women’s and democratic rights movements and Dalit movements and Dalit feminists; and to confront and question the apathy and silence that shrouds the issue of sexual violence against Dalit women in Haryana.

The report is available in English and Hindi, and can be downloaded from wssnet.org. Copies, Rs. 40/- each is also available at Saheli.

Box 3

Continuing To Say No To Capital Punishment

In the latter half of 2013, the Indian government secretly carried out the executions of Afzal Guru convicted as a co-conspirator of the attack on the Parliament in 2001) and Ajmal Kasab, a Pakistani national involved in the attacks in Mumbai of November 2011(See Saheli Newsletter 2012-13). Both these executions were deeply disturbing events, and deeply disturbing discourses were employed to justify them.

Soon after, the events of December 2012 witnessed an increased clamour for the death penalty, in particular for rape. As a group working on women’s issues, it is often presumed by the mainstream that we would support the demand for death penalty for sexual assault. But for decades, we have consistently stood against the death penalty for any crimes. Recent developments prompt us to reiterate our position as a matter of principle and on the basis of facts. We believe that —

• The State cannot grant itself the right to kill its citizens — either through death penalty as ‘punishment’ for crimes, or under the provisions of draconian legislations such as the AFSPA and UAPA which grant impunity for killings and other forms of violence

• In itself, capital punishment is retributive and not reformative in nature and hence does not have any place in a kind of society we envision.

• No matter how heinous the crime, we recognise that every human being has a right to live and holds the potential for reform.

• Global experience provides no evidence that the death penalty acts as a deterrent against crimes. If at all it deters anything, it is the conviction rate. Since awarding death penalty is a judge centric decision, it is subject to the personal stance of the judge, whether s/he is for or against it. The surety of conviction is more important than the severity of the punishment.

• Statistically speaking, the majority of sexual crimes are committed by someone known to the woman - father, brother, uncle, neighbour, friend, lover, someone from her neighbourhood (and here we are not even counting the incidents of marital rape that is not recognised as a crime by the law). Many of these offenders also repeatedly commit such crimes, sometimes over long periods of time. If we push for death penalty (or even implement the provision of capital punishment for repeat offenders as provided in the CLA), it would negatively impact the prospect of justice. Women are highly unlikely to even report such crimes, not to mention see processes of justice to their logical end.

• According to the IPC, capital punishment has been reserved for the rarest of rare cases, so when death penalty is demanded in rape crimes, it is implied that rape is the most serious physical and psychological injury that can be made to a person, which is why only death would salvage or compensate the crime or loss. This logic subscribes to the patriarchal notion of ‘honour’ which we as a progressive society should absolutely reject.

• Most of the offenders sentenced to death so far belong to the minority communities or are from the lower economic strata of the society while offenders in positions of power, have almost never been convicted, let alone awarded capital punishment.

In a recent submission made to the Law Commission on Capital Punishment in June 2014, Saheli firmly states that: Our vision of justice on the other hand, is based on the belief that only prompt and meaningful mechanisms of justice and reparation can result in long term, sustainable social transformation... As long as the death penalty remains on the statute books, we will (and already do) find a public (and political demand) for it to be used against religious, ethnic, sexual minorities and disadvantaged communities, homeless people.