February 8, 2013

Criminal Law Ordinance an end-all?

After decades of instances of sexual violence directed towards women in India, Pranab Mukherjee – unlike many Presidents before him – is satisfied that necessary circumstances exist which call for an immediate action to respond to the rising instances of women subjugation and violence.

The Ordinance of February 3 promulgated by the President reflects a failure of the state; it is a telling story of how political leadership has pointedly disregarded – if not vilified – the bleak status of women in a patriarchal system of power. But while the President must be applauded for his bold but familiar assertion of the necessity to react to women cruelty, to think that the Ordinance is a panacea for all kinds of sexual crimes is at best wishful.

Let us first consider the definitional transition from rape to sexual assault. The Ordinance substitutes the word ‘man’ and ‘rape’ with ‘person’ and ‘sexual assault’ respectively and does away with the requirement of penile penetration; insertion of objects into any bodily orifice constitutes one of the ingredients of the crime. The effect of the Ordinance – bringing gender neutrality and widening the definition of non-consensual sexual assault – is welcome. But more needs to be done.

The Ordinance has brought gender neutrality in rape law only in form and not in substance. Despite the introduction of a gender-neutral ‘person’ in the definition of sexual assault, the Ordinance fails to discontinue the gendered use of the expressions ‘his’ and ‘penis’. Gender neutrality in rape law and usage of such terms cannot co-exist and the latter must go. And the easiest way out will be to substitute the word ‘penetration’ with ‘insertion’ so that the law eliminates all hints of gendered overtones.

The recent gang rape in Delhi – which deeply inspired the abrupt promulgation of the Ordinance – put sexual violence as firmly at the core as it eradicated the myths of sexual perverseness. But, unfortunately, it was a lesson left unlearnt. So, perhaps, the government will need few more such incidents to experiment the entire matrix of the crime before it endorses such a view and reflects it in its legislation.

With all the focus lying on women victims, little thoughts have been directed at the guaranteed failure of the law in fulfilling its objective of brining reforms in rape law. The retention of marital rape is one demonstration of this failure; sexual assault by a ‘man’ with his ‘wife’ is not sexual assault. The law does not recognize sexual assault by a woman with her husband just as it does not recognize sexual assault by a woman on her legally-estranged husband.

Besides being partially biased against men, the Ordinance appears to be completely indifferent to the plight of the members of the LGBT community. The non-acknowledgement of sexual violence arising from the social ties between members of the LGBT community is unbecoming of modern rape law. The edifice for future reforms in rape law cannot rest on such archaic understanding and will fall sooner or later.

But we must be reminded that the Ordinance is subject to the approval of the Parliament. The President has the powers to withdraw the Ordinance also. In either case, the Ordinance is going to lapse in the future. If at all the Ordinance takes the form of a law after it is given effect to by the Parliament through legislation, the controversial provisions defining criminal behavior may well be subject to judicial review.

But in any case, the law as it stands today is not sufficient to prevent crime or punish criminals; it simply reinforces the idea of deterrence and retribution. The necessity to reform criminal laws is certainly immediate. But the fear and magnitude of sexual crimes today is so intense that we require innovative skills to address this necessity. The people of India must be prepared to competently respond to sexual crimes not because of stringent laws and capable governments but despite them.