cross blogging from Kafila.
Written by Arvind Narrain
Arvind Narrain has an op ed in today’s Hindu about the Justice Verma Committee. This is a longer version of the article
The public discourse post the brutal rape of Nirbhaya has witnessed a persistent degrading of the public discourse. Having been subjected to crudely offensive remarks by members of the political establishment, right from belittling a serious movement for equality as led by ‘painted and dented ladies’ to ostensibly sympathetic responses which belittle women who have suffered a serious violation of their bodily integrity as nothing more than ‘zinda laash’, we finally have a document authored by a Committee set up by the state which honours Nirbhaya.
The Verma Committee Report most fundamentally alters the public discourse on crimes against women by placing these crimes within the framework of the Indian Constitution and treating these offences as nothing less than an egregious violation of the right to live with dignity of all women. What is particularly moving and inspiring about the Report is that it does so by placing the autonomy and indeed the sexual autonomy of women at the very centre of its discourse.
It also offers us a rethinking of what is meant by the offence of rape. In the Committee’s thinking rape is a form of sexual assault like any other crime against the human body in the IPC. According to the Committee it is ‘the duty of the state as well as civil society to deconstruct the paradigm of shame-honour in connection with a rape victim.’
According to the Committee, it is very important that Indian society and the state move away from thinking of rape as a crime against honour and instead look at it as a serious violation of bodily integrity. In language which is seen perhaps for the first time in an official report, the Committee quotes a rape survivor. ‘Rape is horrible. But it is not horrible for all the reasons that have been drilled into the heads of Indian women………I reject the notion that my virtue is located in my vagina, just as I reject the notion that men’s brains are in their genitals’.
The discussion on rape is located in an understanding of women as full and equal citizens and it is intrinsic to the argument of the Report that it is only by guaranteeing women full and equal rights that sexual violence can even be tackled. It is in this context that the Committee discusses the phenomenon of honour killing and concludes that it is the responsibility of the state to ensure that ‘choices made by men and women in respect of marriage’ will not be interfered with by institutions such as khap panchayats.
Where the uncompromising respect for autonomy and personhood is perhaps best exemplified is in the Committee’s discussion on marital rape. Breaching the sacred inner precinct of patriarchy which is the marital relationship, the Committee for the first time in the history of Indian law, recognizes that the married woman is an autonomous individual with full power to refuse sexual intercourse with her ‘lawfully wedded husband’. There is nothing in the nature of the relationship, which entitles the husband to sexual access to his wife at his whim and fancy. The Committee, based on an understanding of equality in the Indian Constitution comprehensively rebuts Sir Matthew Hale’s outdated declaration in 1736 that the ‘husband cannot be guilty of rape committed by himself upon his lawful wife’.
While the Committee breaches the inner wall of patriarchy, it is also equally successful in breaching the public patriarchy of the state as a raping machine. For far too long, the Indian Armed Forces have enjoyed complete impunity for crimes of sexual violence committed against women in situations of armed conflict. The women in Chattisgarh, Kashmir as well as the North East have borne mute witness with their bodies to unspeakable acts of sexual violence. For the first time in history, the Committee has recognized that sexual violence against women committed by members of the armed forces must come within the purview of ordinary criminal law. It recommends a ‘review of AFSPA and AFSPA like legal protocols as soon as possible’. The requirement of sanction for prosecuting these offences committed by uniformed personal has been done away with.
The Committee also introduces the notion of ‘command responsibility’ whereby a public servant in command, control or supervision of the armed forces or police would be held responsible for failure to exercise control over the actions of his subordinates resulting in rape or sexual assault. Here again the Committee breaches the code of impunity of the Indian state for sexual offences committed by its personnel.
The Committee has shown a sense of occasion by recognizing that a historic moment such as this must be transformative for all. As such, it expressly suggests that the definition of those who could be affected by sexual assault should include both men as well as homosexual and transgender persons. It thus recommends that the law expressly protect all persons from rape and sexual assault.
The jet of anger which emerged through the brutal rape of Nirbhaya has through the work of the Committee been transmuted into an ever widening circle of empathy which includes children in juvenile facilities, trafficked women and children, Lesbian, Gay, Bisexual and Transgender persons, domestic workers, women in situations of armed conflict as well as women in violent marital relationships. The Committee through making recommendations for all these vulnerable groups has seized the moment and articulated the patriarchal ills of the Indian state and society.
The fact that the Report is based upon a historic articulation of hurt and harm suffered by Indian women emerges most poignantly through the articulation of the offence of rape which results in a persistent vegetative state for which the punishment is rigorous imprisonment of a minimum of twenty years going up to life. This recognition of an aggravated form of sexual assault is a tribute to Aruna Shanbaug who was brutally raped and choked with a dog chain and is living since the last thirty six years in a persistent vegetative state.
The Committee has performed a fine balancing act of being sensitive to public opinion without allowing mere public sentiment to emerge as the arbiter of policy and law. In doing so, it resists the tendency of basing its recommendations on shifting notions of right and wrong and instead derives its recommendations from constitutional values.
It is keeping in mind constitutional morality, that the Committee has refused to yield to the public clamor for the death penalty for those accused of the brutal rape. It has also firmly reiterated that both chemical and surgical castration are ‘cruel and unusual’ punishments which are not in conformity with the Indian Constitution and hence to be rejected. The growing clamour for the lowering of the age of the juvenile from eighteen to sixteen has also been rejected by the Committee citing the fact that as far as the juvenile is concerned, it is the responsibility of the state to invest in processes which can aid the reformation of the juvenile.
The Committee has done an incredible job of transmuting pain and anger into an inspirational roadmap for the future. It is now up to civil society to ensure that the radical recommendations of the Committee are converted into reality.