The JVC Report

The Govt’s Ordinance

1

For the first time in India, spelt out a constitutional Bill of Rights for women, and the means to ensure those fundamental rights to equality, freedom, and autonomy

Ignores the Bill of Rights

2

Recognised that sexual violence is not an act of sex or lust: it is an act of patriarchal power. Therefore, to reduce sexual violence, we must safeguard women’s freedom and rights; and to ensure that perpetrators are punished, we must undo the impunity and protection for such offences that is built into the laws and into our system

Maintains the inbuilt ways in which laws protect powerful perpetrators

3

Recognised women’s rights to autonomy: including her sexual autonomy and her right to choose her partners, friends, and spouses. Recommended changing the archaic and anti-women vocabulary of laws. Understood sexual violence as a violation of a woman’s bodily integrity and her dignity, rather than as ‘outraging modesty’, ‘robbing honour’ or bringing ‘shame’.

Has many clauses that go AGAINST women’s autonomy and freedom, and retains the anti-women wording of ‘outraging modesty’ instead of molestation or sexual violence

4

Redefined the meaning of ‘consent’: stating that unless a woman indicates ‘Yes’ to sex, either by word or by gesture, no one can ‘assume’ that she consented. In the present system, many rape cases go unpunished because a woman is ‘presumed’ to have consented unless she has marks of injury on her body or on the body of the accused. She is ‘presumed’ to have consented if she is married to the accused. A girl is ‘presumed’ to be incapable of consent to sexual contact if she is 16-18 years old, even if her partner is of a similar young age, unless she is married to him. Moreover, she is ‘presumed’ to be lying if the man she accuses is a public servant; a judge; a magistrate; or an army officer; that is why, in such cases, prior permission from the Govt is needed in order to prosecute the accused. Justice Verma sought to challenge and change these in-built, wrong assumptions that go against justice for women.

Accepted the changed definition of ‘consent’ as recommended by JVC, BUT retained many of the substantial provisions that fail to recognise and respect women’s ‘consent’ – in case of married women, 16-18 year-old girls, and women who complain against the powerful people such as judges, magistrates, police officers, bureaucrats, and army officers.

5

Expanded the meaning of sexual assault to cover a range of forms of sexual violence: from sexual harassment to stalking to voyeurism (making MMS etc) to acid-throwing to rape by insertion of an object or a male body part. Recommended higher and more severe punishment for various forms of sexual violence.

Accepted expanded definition and scope of sexual assault, and more severe punishment

6

Recognised that the victim of sexual violence could be ‘gender-neutral’ (i.e could be female/male/transgender/hijra etc), but that the perpetrator is male.

Makes the perpetrator/accused in the rape law gender-neutral – i.e both men and women can be accused of rape. This will mean that if a woman files a rape complaint against a man, he can file a counter-complaint of rape against her!

7

Recognised that young people between the age of 16-18 do, naturally, indulge in sexual experimentation, and that such sexual contact between young people by mutual consent cannot automatically be termed ‘rape’.

All mutual sexual contact between young girls and boys of the age group 16-18 is automatically termed as ‘rape’. This means that innocent young boys will face rape charges, for no crime except that they befriended young girls of their own age. And a generation of young boys who grow up without learning to see girls as equals and as friends, will be more likely to be violent towards women as adults.

8

Recognises that rape happens even within marriage. Asserted that sexual contact, even within a marriage, must be with a woman’s consent; a wife is not her husband’s property, and cannot be ‘expected’ to have sex with her husband, against her will. Therefore, recommended removal of the existing exemption of ‘marital rape’ from the rape law. Upheld the principle that in the case of rape and sexual assault, the relationship of the accused with the complainant will not be the basis for denying her claim of rape; neither can it be the basis for a more lenient sentence. Therefore recommended deletion of the provision of lenient sentence in case of rape of a legally separated wife by a husband.

Legitimises marital rape – i.e forced sexual contact by husband against wife’s consent. Therefore strengthens the idea of the wife as the ‘sexual property’ of the husband. Retains the provision of lesser sentence (minimum sentence of 2 years) for a husband who rapes a legally separated wife! Therefore, even if a wife has taken the pains to separate herself from an abusive husband, the law will make excuses for him if he rapes her, on the grounds that she was once his wife, and so he can be excused for thinking of her as his property! Not only that, according to the ordinance, wives cannot accuse husbands of sexual assault – but because of the ‘gender-neutral’ provision, husbands can accuse wives of sexual assault! Not only that, husbands cannot get life sentence or death sentence for sexual assault even of a separated wife, but a wife accused by a husband of sexual assault, can under the ordinance get life sentence and even death sentence!

9

Sought to get rid of protections for powerful offenders. Recommended that politicians against whom a charge sheet has been filed for sexual violence, be prevented from contesting elections. Recommended that no sanction/prior permission be required to prosecute judges/magistrates/public servants who are accused of sexual violence; and similarly that the AFSPA be amended to do away with the requirement for sanction/prior permission to prosecute an army officer accused of sexual violence. Justice Verma’s argument is clear: no army officer nor any judge or public servant can claim to have raped in the course of his duty. As in any case, the Court can be the best judge, based on available evidence, of whether a complaint is false or true.

Continues to protect the powerful. No provisions against candidates charged with sexual violence. Retains the requirement of ‘prior permission’ for prosecution of public servants/judges/magistrates/army officers. So, no Ruchika Girotra (molested by a police officer), Geetika Sharma or Rupam Pathak (raped by MLAs), Thangjam Manorama (raped by army personnel) can expect justice!

10

Recommended changes in the law based on the principle of ‘command responsibility’ in case of custodial rape by police or army: i.e the principle that a superior officer will be held responsible if he orders or knowingly allows a junior officer to commit rape or sexual assault against a woman who is in custody, or is in a conflict area. This principle is very important if one looks at the rape of Soni Sori (Chhattisgarh SP Ankit Garg ordered his men to sexually torture her) or the rape and murder of Thangjam Manorama in Manipur in the custody of personnel of the Assam Rifles. Such rapes could not have occurred without the knowledge and explicit orders/tacit consent of senior officers. Given the widespread prevalence of sexual violence in conflict areas, the JVC also recommended a review of the AFSPA, which is encouraging such violence. That AFSPA in any case has a provision for periodic review, which has however not been done.

Senior police/army officers will not be investigated or punished for custodial rapes that are committed at their orders or with their knowledge in custody by their junior officers.

11

Recommended changes in the existing medical investigation protocol for rape survivor. Recommended prohibition of the demeaning two-finger test and other forms of medical examination that investigate women’s past sexual history. Also recommended a protocol to ensure sensitive medical care of a rape survivor.

Does not prohibit ‘two-finger test,’ whereby a doctor puts two fingers into a rape survivor’s body to check if she is ‘habituated to sex.’ In fact, the ordinance’s definition of ‘rape’ (Section 375) legitimises this test, by stating that penetration or touching of private parts ‘for medical purposes’ (without specifying the need to obtain prior consent of the patient) will not be considered rape. The rape definition in the ordinance also, strangely, justifies penetration of the body for ‘hygienic’ purposes – so now, many rapists can try and explain away rape as a lesson in hygiene!

12

Recommended more judges, more courts to ensure speedier trials and timely justice; also changes in judicial procedures to make rape trials gender-just.

Accepts changes in judicial procedure, but does nothing in the direction of speedier justice

13

Did not recommend death sentence.

Includes death sentence for rapes that result in death or permanent vegetative state of the victim. In the case of death of the victim, the provision of death sentence already exists and is nothing new. Death sentence for causing permanent vegetative state is dangerous for women: since the risk of hanging for murder and rape are the same, it is likely to become an incentive for the rapist to make sure to kill the victim so that she cannot testify against him.

14

Clearly made the Govt responsible for the failure to protect women from violence

a) recommended 5 years imprisonment for police personnel who fail to do their duty (i.e filing FIRs, pursuing a fair investigation), recommended comprehensive police reforms

b) recommended setting up of well-equipped Rape Crisis Centres; safe houses for women facing violence; forensic investigation; and juvenile justice homes

c) Spelt out the Govt’s duty to ensure safe and adequate public transport, and safety at bus stops and on streets, and a range of other governance measures.

No efforts to ensure police accountability or governance;

a) Punishment for failure to register FIR or biased investigation is just a token 1 year; no police reforms

b) No provisions for rape crisis centres, forensic facilities, safe houses, juvenile homes etc

c) No governance measures such as public transport etc to ensure safer public spaces for women

Box matter 1

Moral Policing in the Guise of ‘Safety’ for Women

Recently, there have been many instances of attacks on women’s freedom by the police and other public authorities in the name of keeping women ‘safe.’

In Siwan, Bihar, a panchayat reportedly imposed a ban on girls wearing jeans and having mobiles, claiming that these things encouraged women to elope with boys. AIPWA protested this kind of moral policing in Bihar, asserting the freedom and rights of young girls and women, and demanding that the Government deal sternly with such patriarchal forces rather than letting them become virtual ‘khap panchayats’.

In Bhilai, Chhattisgarh, a newspaper reported that the Durg police are conducting a special drive “to curb crime against women” and in this connection they caught couples who were sitting together in public places, and later released them after strictly “warning them not to repeat this thing”. On January 29, 12 boys and 7 girls were nabbed under this special drive and later handed over to their parents with a warning that this act should not be repeated. This drive was known as “Operation Majnu.”

Commenting on this report, Dr. Lakshmi Krishnan of AIPWA wrote in the Hitavada, “What right has the police to question where a girl is sitting and with whom she is sitting provided she is not breaking the law and not harming others? Rather, it is the police who are breaking the law and violating the constitutional rights of the young people by interfering in their personal lives and by indulging in moral policing. This is not a new offence on the part of the police but unfortunately it has always gone unchecked and unpunished. This can have dangerous consequences. Only last year there was the case of the Durg police nabbing some boys and girls who were returning from Raipur to Bhilai late at night and one of the girls collapsed and died during the police questioning…. There must be no confusion between sexual harassment and self choice friendships. There is nothing immoral or vulgar in friendship between boys and girls. In fact, interaction and friendship with girls actually sensitizes boys and makes them respect the autonomy and freedom of women.”

The AIPWA submitted letters of protest to the SP and the Collector of Durg district in this matter, demanding that the police “go about their business of making public spaces safe for women instead of driving women away from such spaces.” Representatives of AIPWA also had a discussion with the police officials of Durg district and put forward their objection to such moral policing.

Demonstration against rape in Tiruvallore District

In Tiruvallore district a 15-year old dalit girl was raped and sexually abused repeatedly for the past six months by a local businessman, 53, with the help of another woman in the area. Her mother’s complaints to the police were not taken seriously as the culprit has influence in the local police station. When the mother approached our Party, CPIML and AIPWA made a complaint in the same police station. The police then filed the FIR and the culprit and the woman who helped him are now in prison.

On February 2, Party and AIPWA organized a demonstration in the area in which over 300 participated. Local people also joined the demonstration. Leaders of local women self-help groups attended the demonstrations. The demonstration demanded: the culprit must be booked under Goondas Act; compensation for the victim; implementation of Verma Committee recommendations.

Tiruvallore District Party Secretary Com. S. Janakiraman, RYA State Convenor Com. Bharathi, AISA State President Com. Malarvizhi, AIPWA State Vice-presidents Com. Kuppabai and Com. Devaki spoke in the demonstration.

Box 2

Justice in the Suryanelli Rape Case

Anti-rape protesters have been outraged by the fact that the new rape law will be discussed in Parliament, with a rape-accused presiding over the discussions! The Deputy Speaker of the Rajya Sabha, PJ Kurien, is accused in the Suryanelli rape case: a case of gang rape of a 16-year-old girl in Kerala, 17 years ago.

The 16-year-old girl in Kerala’s remote Idukki district, was defrauded by a man whom she had befriended, was drugged, beaten and taken to places across the Tamil Nadu and Kerala countryside, where she was raped by around 40 men. Eventually she was put on a bus back home, after which she filed a complaint of rape. 40 persons were named as accused in the main petition, by the State Government. The rape survivor later saw Kurien’s photograph in a newspaper and recognized him to be one of the rapists, and filed a private petition against him to the court, when the police refused to register her complaint against him.

Kurien had tried to appeal against his being named as an accused, but his appeal was rejected thrice: by the lower court, by the High Court and by an Additional Sessions Court. A Special Court had convicted 35 of the 40 accused in the original case. A division bench of the Kerala High Court, in 2005, however, overturned the convictions, in a shockingly misogynist verdict. Only one man was found guilty of sex trade (procuring and selling a minor for purposes of prostitution). Only after that, based on the acquittal of the other accused in the main petition, was the case against Kurien rejected by the Kerala HC and later the Supreme Court.

Meanwhile the rape survivor also faced political victimisation, being falsely accused of financial irregularities and losing her job.

However, the Supreme Court recently responded to the appeal against the 2005 verdict, expressing dismay at the verdict and setting aside the Kerala HC’s acquittal of 2005. The case has been sent back to the HC for a fresh look.

Several crucial witnesses, including the man convicted in the case, have now stated that Kurien was in fact guilty and that the prosecution had made them suppress facts.

The Kerala HC verdict of 2005, shockingly, seems based more on the judges’ view of the girl’s morals rather than on the facts of the case. Based on its moralizing, it concludes that the girl was a prostitute who agreed to sex with 40 men by consent. For instance, the verdict comments that the girl’s “inclination to have such friendly relationship with a stranger like Kochumon must also be taken note of while appreciating her evidence.” It notes that “She is thus shown to be a girl of deviant character. She was not a normal innocent girl of that age.” One of the judges notes that “It is easy to assume that no minor if prudent and intelligent, and if her faculties of reasoning and sense of righteous behaviour are properly developed and intact, would choose in the Indian context to consent to extra marital and pre marital sexual intercourse…. In the fiercely consumerist society that we live in, a young girl child is also exposed to so many temptations that it is difficult for the child which has not been groomed in proper atmosphere with a proper value system inculcated in it, to resist such temptations. Such children can be termed deviants but cannot be merely condemned and left to their fate.” And therefore the judge advices raising of the age of consent to 18 years rather than 16! The verdict shares all sorts of patriarchal ideas about how a ‘righteous’ and ‘good’ girl would behave, and with all the patriarchal moral outrage and disgust, brands as ‘deviant’ a young girl who chooses to fall in love with a man. Once assumed to be a ‘deviant’, her own testimony about being raped by other men is viewed by the judges with suspicion, based on their assessment about her character and morals. And at the end, while doing a grievous injustice to the complaint of rape and branding her a liar, they ask that the freedom of all young girls of 16-18 years, to have friendships of their own choice, be restricted by raising the age of consent! One of the Judges who delivered that verdict has recently said on TV that the girl was a ‘deviant’ and a ‘child prostitute.’

The Congress party has shamefully yet to remove Kurien from his post as Deputy Speaker of the RS. Moreover, asked by a woman journalist about the Kurien case, UPA Overseas Minister Vayalar Ravi made a sexist remark, asking her whether she too had had a past relationship with Kurien! The Congress is yet to act against either Kurien or Ravi.

Speaking to a national daily, the rape survivor who is fighting for justice said, “I am no longer the 16-year-old school girl who fell for her first love, and lost her life. Yet, at 33, I am battling the same nightmares; my world is a grey longwinding road that stretches from my house to church and office.

People have a tendency to smirk when I recount the 40 days when I was turned into a female body that could be used anyway they liked — sold like caged cattle, pushed into dark rooms across the state, raped day and night, kicked and punched. ...I can remember all those faces clearly. Raju comes first. The man I loved, and trusted. That he would turn me into the victim of Kerala’s first sex racket was the twist in my love story. The man whose face I searched for during my every day trip to school was one among the many I had to point to in an identification parade, and come face-to-face in the court corridors. In those days, I really wanted to kill him, my first love.

I feel relieved that the Delhi girl died, or she would have faced the same pointed, porn-tinted questions from everywhere, forced to explain countless whys, and would have had to live a life fearing her own shadow and without a friend.

I belong to the Latin Church which is the largest individual church in the Catholic Church, but in all these 17 years, not even a single prayer was said for me in any church anywhere. No rosaries marked the Hail Marys, and no angels came to my doorstep to offer kind words.

But my belief has not wavered. It gives me the strength to watch 24/7 news channels where the protectors of law call me a child prostitute, and eminent personalities discuss why my case won’t stand. Even when I am framed in a financial fraud case in my office, and when my parents go down with major health problems, I convince myself that this too would pass. One day.”