The Verma Committee Follow-Up: First Thoughts

Written by  //  January 23, 2013  //  National Politics  //  1 Comment

It will take a complete purging of the deeply patriarchal and misogynous society that we live in for this mad culture of rape to end. Changes to the law, stronger policing, stricter punishment, efficient prosecution, and such, will only go so far towards assuaging a malaise that has seemingly persisted since time immemorial. But how does one initiate a cultural transformation without engineering a change in law and policy?

Proposals to rid India’s penal laws of its colonial antiquity, by itself, as is the case with calls for greater policing, can seem insignificant, and even trivial, when considering a culture that is nourished by brazen chauvinism, but these mores are only enabled and strengthened by laws that are inherently bigoted. Where does, for instance, one begin to explain what “outraging the modesty of women” means? How is it that our laws fail to criminalize marital rape? What does the so-called “two-finger test,” which continues to be used as an evidence collection tool in rape cases, in spite of the Supreme Court’s specific dicta prohibiting the use of its results against a rape survivor, say about our criminal justice system? How does one explain the glaring variances in sentencing based on the victim’s prior sexual history?

All of these obtrusive fallacies in the law have only furthered a culture that actively encourages violence against women. There is an immediate need to shred anti-rape laws of their dogmatist wording and to view rape independent of ideas of “chastity” and “modesty,” which virtually equate the victim to the offender. Rape needs to be viewed for what it is: a sickening act of sexual violence on a woman. In its present form, Section 375 of the Indian Penal Code broadly defines rape as penetration—which has been interpreted by courts to mean the penetration of a woman’s vagina by a penis—without consent. Any act of sexual violence short of vaginal penetration—including oral and anal penetration—is therefore prosecuted either as an attempt to rape or under Section 354, which covers assaults intending to “outrage” a woman’s “modesty”—and is punishable with imprisonment for a term no longer than two years with or without a meek fine. Consequently, to insert a rod into a woman’s body, in the eyes of the law, amounts to nothing more than outraging her modesty, whatever that means. This may appear to some as a mere matter of semantics, but the legislature in retaining laws that are in keeping with archaic notions of “virtue” and “chastity,” is contributing to an acutely dangerous culture. Both of these provisions require immediate rewording. Rape must be defined with greater clarity to include not merely vaginal penetration, but also oral or anal penetration as well as penetration with foreign objects.[1] There needs to be a categorical recognition that rape with an object is potentially as traumatic as vaginal penetration, and the law must also explicitly recognize that the victim isn’t mandated to assert physical resistance to show a lack of consent. The exception to Section 375 must be removed, and marital rape ought to be specifically criminalized within the provision. Further, section 354 must be freed of its antiquated wording, and acts of sexual violence not amounting to rape need to be clearly defined (including criminalization of acid attacks, sexual harassment, groping, etc.) and graded based on levels of harm. That an act of sexual violence against a woman is an insult to her human dignity ought to be uncompromisingly recognized.

Human Rights Watch in a comprehensive 2010 report, “Dignity on Trial,” highlights the anathema of the “two-finger test,” which has come to represent standard medical practice, even though past sexual history has been disallowed in rape trials since 2003. As Pratiksha Baxi points out in this post, and as Jeet Shroff wrote in these pages, the test based on the survivor’s uninformed consent is inevitably introduced as evidence. The practice entails insertion by doctors of two fingers in the victim’s vagina to ascertain whether the hymen can stretch without tearing—as the HRW report showcases, the test is used routinely to determine whether a rape survivor was “habituated to sexual intercourse.” According to the HRW report, since 2005 at least 153 court decisions from 18 different High Courts have cited finger test results or doctors’ opinions about whether or not the survivor was “habituated,” “accustomed,” or “used” to sex. If the law of the land as laid down by the Supreme Court mandates that a rape survivor’s sexual history ought not to discredit testimony, how is it that results from finger tests are customarily introduced as evidence? Over and above being devoid of any scientific weight, these tests are also tantamount to torture—in many cases they can exacerbate the survivor’s trauma by mimicking penile penetration. The two-finger test must not only be banned but also criminalized—it is a damning indictment of a system that is bizarrely prejudiced against the victim.[2]

Finally, a few words on punishment: In the immediate wake of the horrific incident in New Delhi, there has been a clamor to introduce the death penalty, and even chemical castration,[3] for rapists. These suggestions, though, are far from helpful, and do little more than quench a thirst for immediate retributive justice. There is little empirical evidence to suggest that capital punishment serves as a deterrent for future crime, apart from being a state-sponsored abomination. The focus should instead be on the conviction rate. A mere 26 percent of all registered rape cases in 2011 lead to convictions, according to the National Crime Records Bureau, a statistic that is even more appalling when you consider that more than 50 percent of the cases go unregistered. The reasons for the low conviction rate are likely innumerable, but chief among them is the retention of colonial-era laws that place the burden on the conduct of the survivor as opposed to the conduct of the accused.

Setting right the legal system will admittedly only serve a limited purpose in alleviating the larger problem: a society that breeds inequality and contempt for women. There is a shocking lack of participation by women in politics, with more than 90 percent of the seats, for instance, in Parliament held by men. The Women’s Reservation Bill, which will guarantee a certain number of seats for women in the Parliament, has gone nowhere. Female feoticide remains rampant. Girls continue to be criminally undereducated. Our country, more than sixty five years after independence, remains brutally misogynous. That our laws, such as the provisions concerning sexual violence contained in the Indian Penal Code, encourage this culture is shameful. Correcting these, at the very least, may be a step in the right direction.

[1] The Justice J.S. Verma Committee released an exhaustive report on 23 January 2013—657 pages in length—detailing a number of changes to India’s criminal legislation, specifically to its rape laws. I haven’t had the occasion to go through the report in full, but in the parts that I did peruse, it certainly makes a number of important recommendations. For instance, it proposes a series of amendments to the Indian penal Code, touching upon some of the things that I’ve spoken about here.  A new Section 354 is proposed, criminalizing “sexual assault,” which is defined as the (a) Intentional touching of another person when such act of touching is of a sexual nature and is without the recipient’s consent; (b) Using words, acts or gestures towards or in the presence of another person which create an unwelcome threat of a sexual nature or result in an unwelcome advance. A new Section 354A is also proposed, criminalizing a set of offences: “Assault or use of criminal force to woman with intent to disrobe her;” “Voyeurism;” and “stalking,” including stalking over the Internet. A new Section 375 is proposed, including not merely vaginal penetration with the penis to constitute rape, but also penetration of the anus or urethra of a woman, whether it be with the penis or an external object that is not used for proper hygienic or medical purposes, as well as acts of “cunnilingus,” or “fellatio.” Under an explanation to the section, consent is defined to mean an “unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act.” There is a further proviso that makes it explicitly clear that a mere failure to offer physical resistance does not equate to consent.

These are important — and welcome — suggestions, and, if implemented, would certainly help rid the law of some of its colonial hangover.

[2] The Verma Committee in its report rejects the two-finger test, noting that Section 164A of the Code of Criminal Procedure, which deals with medical examination of a rape victim, is already in alliance with modern understanding that previous sexual history is irrelevant. The Committee, however, does not recommend that the conduct of the test be deemed criminal. But considering how widespread the two-finger test is (as is evident from the Human Rights Watch report) it is of particular importance that the practice be specifically criminalized.

[3] The committee in its report has explicitly rejected chemical castration as a form of punishment, as the “mutilation of the body is not permitted by the Constitution,” and as it isn’t recognized in progressive jurisprudence as “prescribed punitive action.” The report also rejects the death penalty–even in the rarest of rare cases–and has instead enhanced the punishment to mean the remainder of life. In doing so, the committee has ensured that it stays focused on those aspects of the law in which change is likely to have a direct correlation to the crime rate.

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