The Verma manifesto

A range of amendments to the law are recommended, new sections suggested, protocols developed, and a bill of rights for women is pronounced. This voluminous report, crafted through a series of conversations with survivors of sexual violence, academics, activists, representatives from the government and lawyers, provides the Delhi protests with a manifesto for radical transformation.

This reasoned, researched and anguished document is ambitious in its desire to link structures of power and domination with the everyday mechanisms to silence testimonies against sexual violence. It speaks directly to the experiences of young people on the streets of Delhi by recognising the damaging impact of sexual harassment (although there is an anachronistic use of the word "eve-teasing" in the commentary which precedes the recommendations). It also recommends that offences such as stalking, voyeurism and forced stripping should be defined under Section 354 of the IPC as distinct forms of sexual assault, rejecting the colonial, humiliating and trivialising definition, which described everything short of penile penetration of the vagina as outraging the modesty of women.

The report redefines rape substantially. It recognises rape as a crime of patriarchy committed by men, and acknowledges that the victims of such horrendous violence can include men and transgendered persons in everyday contexts. Unlike the Criminal Law (Amendment) Bill 2012, the report does not accept the idea that women or transgendered people can rape adult men, in everyday contexts. Rather, the definition of rape operates on a sociologically informed classification, retaining gender specificity for perpetrators (always men) and gender plurality for victims (any person, irrespective of gender or sexual orientation). The strength of this definition is that it drives home the fact that sexual violence is a privileged and preferred form of patriarchal violence, which can terrorise by sexually humiliating any person who transgresses heterosexist social, sexual and political orders.

In the instance of "aggravated" rape such as gangrape, the report rightly recognises that any person, including women, can commit and abet gangrape. Hence, the recommendation to create a new section of the IPC reads "where a person is raped by one or more in a group of persons acting in furtherance of a common intention, each of these persons shall be deemed to have committed the offence of gangrape, regardless of their gender".

The committee's definition of rape, like the Criminal Law (Amendment) Bill, moves away from a phallocentric emphasis to include metonymic substitutes for the penis in its definition. It also expands the notion of consent, in very welcome ways. Consent, the committee says, must be defined as "unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act". Neither should it be presumed that "a person who does not offer actual physical resistance to the act of penetration" is "to be regarded as consenting to the sexual activity".

For the first time in the history of law reform in India, a committee has recommended that consent should not be presumed in the event of an existing marital relationship between the complainant and the accused. Will Parliament feel the pain of women trapped in violent marriages and decline the votes of their husbands by criminalising marital rape? Indeed, will the political class accept the committee's recommendation to disallow men accused of rape and sexual assault from enjoying any kind of political power?

However, it is quite disappointing that the committee is silent on the deletion of Section 377 of the IPC, which defines unnatural sexual offences. Indeed, it is a travesty of history that in the case of 23-year-old medical student, whom the committee refers to as Nirbhaya, the accused are being tried under Section 377. Surely, it should be intolerable to describe rape as unnatural sex. Nor should the law have the power to criminalise consensual sex between adults.

Violating the age of consent, irrespective of gender, is presented as a strict liability offence. The committee recommends that such an offence attract 10 years' punishment and if such an offence results in murder or reduces its victim to a persistent vegetative state, that it attract imprisonment for the rest of the person's natural life.

It is not, however, immediately clear how the misuse of the statutory rape, kidnapping and abduction laws, to criminalise love affairs, will be dealt with. Surely our policemen and courts also imitate the logic of khap panchayats when it comes to upholding caste hierarchies? This must find a fuller critique and revision. Especially since the committee is clear that any form of impunity and immunity, which generates legal, political and social technologies of silencing and shaming survivors of rape and sexual assault, must now be named, disassembled and made liable.

In a logical move to strike down impunity, the committee indicts the Armed Forces (Special Powers) Act, saying that it must not be necessary to seek sanction to prosecute "sexual violence against women by members of the armed forces or uniformed personnel" in a criminal court. It cannot be argued that any rape is necessary in the line of duty.

Further, the JVC recommends a new offence, which will also inscribe accountability for mass sexual violence, by defining command responsibility. This holds a public servant criminally liable if he or she "either knew or owing to the circumstances should have known that the persons under his or her command, control or supervision would commit such offences".

By addressing the institutionalisation of rape cultures in juvenile, observation and protection homes, the committee opens up the linkages between police practices and sexual bondage of trafficked children. The horrifying state response to missing children is read alongside the brutalisation of children in the protective care of the state. The Justice Verma Committee report shines a light on the darkness that inhabits the walls of these institutions, where inmates who are sexually humiliated cannot walk with us in protest.

The writer is assistant professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University, express@expressindia.com

ALSO READ

China's rebalancing act

The Karnataka prophecies

'I'm jobless here in Delhi. I'm not on any government committee and there is no encouragement from the government at all'

National Interest: Mere paas media hai