Ordinance to continue AFSPA! license to rape sustained!

Ordinance to continue AFSPA! license to rape sustained!
Indian Holocaust My Father`s Life and Time, Chapter: Nine Hundred Fifty Four
Palash Biswas

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Ordinance to continue AFSPA! license to rape sustained!The president of India hinted it earlier in his address to the nation on the eve of republic day. It happened. Sony Sori and the mothers of raped mothers in Manipur and the raped women in Kashmir should not demand justice. Justice denied as reccomendations of Verma commission have been thrown into the dustbin.Rather an ordinance upholds AFSPA and sustains the license to rape in the militarised state where the state has declared war against the indigenous aborigine excluded majority communities. It is done before the parliamentary session to invoke Hindutva and the Sangh pariwar welcomed it. The blueprint has been prepared with surgical precision as one prominent sociologist Ashish Nandy converted the corporate Literature festival in Jaipur into a virtual anti reservation forum branding OBC, SC and ST communities responsible for corruption!Just link the ordinance with Nandy`s violent freedom of expression against the majority population in India and you would get the agenda. The ordinance has rejected the Verma Committee's recommendations on issues like making rape a gender specific crime in the law, on increasing the punishment to public servants guilty of dereliction of duty, of increasing the punishment and guaranteed compensation for victims of acid attacks and was "highly selective" about other suggestions. The decision to promulgate the ordinance was taken at a specially-convened meeting of Union Cabinet today, just 20 days ahead of the Budget Session of Parliament.Some women's organisations on Saturday urged the President Pranab Mukherjee not to sign the ordinance on criminal law amendments passed by the union Cabinet to deal with sexual crimes.A day after the Union Cabinet cleared ordinance on crimes against women, the debate over rape laws in the country has reignited. women activists have questioned the government saying it didn't deliver on what was promised. The government on Friday (Feb 1) partially accepted the recommendations of Justice J S Verma Committee against sexual violence, which was formed in the wake of the gangrape incident in Delhi on Dec 16. The ordinance will be brought to amend the criminal law with focus on crime against women, providing punishment up to the entire life of a convict in case of 'rape' whose terminology has been expanded to 'sexual assault'.

The hindutva of civil society exposed its skin as team Anna member Kiran Bedi lauds the ordinance.Calling it the beginning of a long journey, former IPS officer and activist Kiran Bedi welcomed the ordinance on sexual assault against women.

"Justice Verma Committee is not only about the law. There is a lot before the law and there is a lot after the law. I think the government needs to give a holistic response to the society on Justice Verma Committee's recommendations. It concerns police reforms, it concerns judicial reforms, it concerns electoral reforms. I think what the people of this country demand of this government is a holistic response," said Bedi.

"I think the people demand a holistic response, it is a very part law response. Very well, it's a beginning made, but it's still a long way to go, as the Justice Verma recommendations are a holistic correction," added Bedi.



On the ongoing controversy over the statement by Asiash Nandy, where he stated that Dalits-Adivasis-Other Backward Castes / or rather as Nandy would refer to them as, SC-ST-OBC's are basically more corrupt & in West Bengal where they were not part of the power structure for over a 100 years, the government is clean, many of us have been stunned at the fact that Nandy received support from the dominant ranks of the upper caste intellectuals. The caste hindu intelligentsia well supported by media and social media waged war against OBC, SC and ST afresh. Bengal is no exception where the brahaminical dominance is complete without any space for excluded 92 percent people ruled by three percent brahamins and five percent kayastha and Baidya. The Baidya community is cent percent empowered and rules Indian Free market economy led by economists like Dr> amartya Sen. Bengali hegemony and intelligentsia showcase unprecedented sympathy for the minorities while standing against Salman Rushdie and Taslima Nasrin. But no one did react on Nandy`s comment. Rather they express most violent hate against the social change and social justice movement for equity in the cow belt which is living in darke age as they proudly claim. Mind you,ninety percent Muslim population in Bengal is consisted of OBC communities.Hindutva forces used Taslima written novel LAJJA but when she accused of sexual exploitation, she was not heard at all.

Both Prakash Ambedkar & Prof Kancha Iliah, were opposed to the imposition of the SC-ST act, or his arrest. Yer they were clearly upset & hurt by the fact that there were practically no voices, barring a few like Ajoy Bose (Mayawati ji's Biographer) that condemned this intellectual goondagiri, as Prof Kancha rightly terms it, all the way from Kautilya to Arun Shourie. Do kindly listen to the panel discussion held on CNN-IBN.

"Nandy: How should I put it? Almost a vulgar statement on my part. [Raises his voice and speaks slowly, with deliberate emphasis on each word.] It is a fact that most of the corrupt come from the OBCs, and the Scheduled Castes and now increasingly Scheduled Tribes. And as long as this is the case, [the] Indian Republic will survive... [some interruption, with moderator Urvashi Butalia saying "Alright" as if sensing the tension and wanting to move on; TV journalist Ashutosh is raising his hand in protest, but Nandy soldiers on]. Also, I'll give an example. One of the states with the least amount of corruption is the state of West Bengal, that is when the CPI(M) was there. And I want to propose to you, draw your attention to the fact that in the last hundred years [pause] nobody from the opp... [opposition? oppressed?], nobody from the OBCs, the Backward Classes, and the Scheduled Castes and the Scheduled Tribes have come anywhere near power in West Bengal. It is an absolutely clean state. [Point made, Nandy wants to pass the mike.]"

These are 80 seconds alone, but they have exposed many an intellectual across the country, where its only the Dalit-Adivasi-OBC society & intellectuals who have been deeply hurt, whilst the rest were queing up to sign on to support Nandy. Its truly been a shameful episode.

The Union Cabinet on Friday recommended promulgation of an ordinance to amend the criminal law with focus on crime against women by incorporating some of the suggestions of Justice J S Verma Committee.



The following are the recommendations of the Verma Commitee which have been accepted in toto, accepted in part not (not) accepted.

Those which were accepted in toto include Gangrape (Section 376C ), Sexual Assault and Punishment for Sexual Assault (Section 354), Assault or use of criminal force on woman with intent to disrobe her (Section 354 A), Voyeurism (Section 354 B), Stalking (Section 354 C (1), Punishment for stalking (Section 354 C (2))M Trafficking of a Person (Section 370).

Other provisions accepted in toto: Section 376A (re-numbered as 376B) Sexual intercourse by a Person in Authority, Section 376E Punishment for Repeat Offenders, Section 160: No male below 18 and above 65 years and woman or physically disabled shall be required to attend a Police Station, Section 198B: Cognisance of an offence u/s 376(1) when persons are in marital relationship.

Also accepted in toto:-- Proviso to Section 273: Recording of evidence of a victim below 18 years - victim will not be confronted by the accused, Section 327: Substitution of new offences defined for rape (376A, 376B, 376C, 376D), Proviso in Section 146: Question regarding the moral character will not be put to the victim during cross examination.

Those recommendations which are partially accepted are: Section 100: Right to Private Defence - Inclusion of an acid attack u/s 326A was accepted only and the rest proposed was already existing in the IPC, Section 166A: Public Servant disobeying direction under law - Directions relating to crimes against women proposed to be made punishable upto only one year against the recommended five years as proposed by Justice Verma Committee.

Other provisions accepted partially are: Section 326A: Voluntarily causing grievous hurt through use of acid etc. - Female circumcision proposed was not accepted. - Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted, Section 326B: Voluntarily throwing or attempting to throw acid etc. - Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted.

Section 375 Rape - Gender Neutrality of the act was not recommended which was not accepted by MHA. The Bill criminalises the sexual activities between 16 and 18 years which the Verma Committee did not agree. Verma Committee criminalises marital non-consensual sexual intercourse which is not accepted. Rest of the recommendations were accepted.

Section 376 (1) Punishment for Rape - Payment of compensation to the victim was dropped. Rest of the Section 376 (2) Aggravated Rape - Payment of compensation to the victim was dropped. Rest of the recommendation was accepted.

Section 376 (3) Punishment for causing death or a persistent vegetative state in the course of committing rape - Death penalty was preferred by Home Ministry. Rest of the recommendation were accepted.

Proviso to Section 154 Registration of an Offence - Provision to record evidence by police officer at the residence of the person reporting the offence. Mandatory videographing was not agreed to and converted to optional.

Section 164 (5)(a) and (6)(b) Recording statement by a Magistrate - special assistance for mentally or physically disabled persons to be given by Magistrate.

Statement of mentally or physically disabled person to be considered sufficient for examination-in-chief and cross examination. However, mandatory videography not agreed to and changed to optional.

Those recommendations which were not accepted are: Section 376A: Sexual by husband upon his wife during separation - Verma Committee wanted to delete it. Was retained by Home Ministry as marital rape was not agreed to.

Under Armed Forces (Special Powers) Act, 1958 Proviso to Section 6: No sanction would be required if the armed force personnel is accused of a crime against woman. This was not accepted by the government.

Section 376B (1): Rape of an Underage Person - Not accepted as the provision is in conflict with the PCSOA, 2012.

Section 376 B (2) Punishment for causing death or a persistent vegetative state in the course of committing rape of an underage person - Death penalty was not recommended.

Section 376F: Offence of breach of Command Responsibility - fixes vicarious criminal responsibility on the leader of a force for acts of subordinates. Not accepted.

Section 39(1) Clause (vb) - Compel communication of information of offence relating to crimes against women to the nearest Magistrate - Not accepted as it is liable to be misused.

Section 197(1) Sanction for prosecution - no sanction would be required for prosecution of Judge or Magistrate or Public servant if accused of crimes against women. Not agreed to avoid false complaints.

Section 40A: Intimation by the Panchayat member the communication of information of offence relating to crimes against women to the nearest Magistrate - Not accepted as it is liable to be misused.

Section 357(4) Compensation to victim - Payment of compensation of an amount adequate to meet at least the medical expenses incurred by the victim. This is not acceptable as the compensation would be very low. The Bill has a better provision.

After the union cabinet approved an ordinance to effect changes in laws against sexual crimes, the government Saturday said it was open to consultation and changes after women's groups urged the president not to sign it.

"Justice (J.S.) Verma committee and public opinion were both of the view that something needs to be done with a sense of urgency. All you can do is when the parliament is not in the session is to bring an ordinance, which is what we have done," said External Affairs Minister Salman Khurshid on
the sidelines of a function here.

"It does not mean that widespread consultation cannot take place when the actual bill is brought into parliament," he said.

"I'm sure the women organisation as well as all the political parties will come together for widespread consultation with all sensitivity this area of law requires."

Law Minister Ashwani Kumar also said the government would be happy to review the ordinance if required.

"There may be difference of perception but a lot of effort has gone into it (the ordinance)," he told NDTV news channel.

The move, he said, "was a message to women that they need not feel insecure".

Asked why marital rape was left out of the ordinance, he said: "No case of sexual assault has been left out of remedy".

On including death penalty in rare cases, the minister said the Supreme Court had been giving such punishment earlier.

"We have given it a statutory backing," he said.

The ordinance, based largely on Justice Verma's report, proposes enhanced punishment, including death in rare instances, in cases of crimes against women, including sexual assault, acid attacks, voyeurism and trafficking.

The women's groups said the ordinance betrayed people's faith and lacked in transparency while questioning its timing with the parliament's budget session starting Feb 21.

They said the government had stealthily cleared the draft without sharing it with the public and without debating and discussing it," said Kavita Krishnan, secretary, All India Progressive Women's Association (AIPWA).

"It is an absolute mockery of the panel's recommendations. We were alarmed to see the ordinance as it ignored many recommendations of that committee.

"The government has stealthily passed this ordinance without sharing it with the public and without actually debating and discussing it. All the recommendations than can actually strike at the heart of impunity have been dropped," she said.

Some women activists said they would take to streets as they had done after the gang-rape of the physiotherapy student in the national capital Dec 16.

The widespread anger among people after the incident forced the government to set up the panel, which submitted its report last week.

Being brought against the backdrop of the gangrape and brutal assault of a 23-year-old girl in Delhi in December, the ordinance entails changes in the criminal law by amending Indian Penal Code ( IPC), Code of Criminal Procedure (CrPC) and the Evidence Act.

The government will now recommend to President Pranab Mukherjee to promulgate the ordinance, which will make the law more women-friendly.

The amendments have been made in tune with the recommendations of the Justice J S Verma Committee, which was formed in the wake of the gangrape incident, besides the proposals in the Criminal Law (Amendment) Bill, 2011 which is pending in the Lok Sabha.

The amendments include changing the definition of 'rape' to 'sexual assault' and enhancement of punishment from seven years upto natural life of a convict, sources said.

There will be provision for 20 year imprisonment for rape and in case of rape or gangrape with grievous hurt, there will be provision sentence upto the convict's natural life.

Among other amendments is the one making acid attack as a separate offence, carrying minimum punishment of 10 years which may go up to life.

For use of force to outrage a woman's modesty, the punishment has been enhanced from two to five years and for indecent gesture, punishment has been enhanced from one to three years.

"The ordinance has thus done injustice to the Verma Committee report and appears to be a diversion from the serious issues raised of state culpability," including on issues like inclusion of armed forces in the ambit of criminal law, the CPI-M Politburo said in a statement.

On the provision of death penalty in the ordinance but not recommended by the Verma panel, the major Left party said the category of 'rarest of the rare' cases was already part of the legal framework and would include cases of rape and murder also, which has been reiterated by Justice Verma.

In a statement, the All India Democratic Women's Association (AIDWA) too objected to the "selective and arbitrary approach" of the Government to the recommendations".

"We strongly feel that the UPA-2 should have adopted a holistic approach to the Verma Committee report, rather than doing a pick-and-choose exercise, thereby undermining the efforts of the committee in providing a multi sectoral, comprehensive framework to tackle rape and sexual assault.

"The present piecemeal and fragmented ordinance can only serve to sabotage the intention of providing recourse to victims of sexual violence."

"The ordinance is a complete betrayal of the people's faith. We are alarmed at the complete lack


of transparency displayed by the government in proposing an ordinance as an emergency measure. We call upon the president not to sign such an ordinance," was the general opinion of woman activists at a press conference here.
They also wondered why such a measure was necessary when Parliament would convene for the budget session in about 20 days.

The cabinet Friday approved an ordinance for enhanced punishment in cases of crimes against women, including sexual assault, acid attacks, voyeurism and trafficking.

The women also complained that the cabinet had not paid adequate attention to the recommendations of the Justice JS Verma committee, set up to examine laws that relate with sexual crimes and any changes necessary.

"It is an absolute mockery of Justice Verma's panel's recommendations. We were alarmed to see the ordinance as it ignored many recommendations of the that committee. The government has stealthily passed this ordinance without sharing it with the public and without actually debating and discussing it. All the recommendations than can actually strike at the heart of impunity have been dropped," Kavita Krishnan, secretary, All India Progressive Women's Association (AIPWA) said.

Some women said they would take to the streets in protest, once again, just as they had protested after the brutal gang raped of the physiotherapy student gang raped in the national capital Dec 16.

"We will be holding protest, likely from Monday at 2pm, but we are yet to finalise it. We would definitely continue to agitate. How can the union cabinet, in just a few hours, sit and cheery-pick what JS Verma and his team strenuously worked on for a whole month?" asked Krishnan, adding that the government acted stealthily, passing the ordinance without sharing it with the public and without debating and discussing it," Krishnan said.

The Verma panel, set up by the government last month to review laws to provide speedier justice and enhanced punishment in cases of aggravated sexual assault, submitted its report to the government last week.

The panel was set up in the wake of outrage over the gruesome gang raped of a 23-year-old trainee physiotherapist Dec 16.

With women groups and individuals raising their voice against the ordinance to fight sexual crime against women passed by the cabinet on Friday, one of the key member of the government-appointed committee, Justice (retd) Leila Seth said the panel has decided not to comment on government's ordinance.

"We have done our hard work for the nation, let the people of India decide as to what is right and what is wrong," Seth told DNA. She said the committee has decided not to comment on the government's ordinance as a matter of protest.

"Our whole team has worked very hard in preparing this report. We all worked as a citizen of this country for its welfare. Let the government decide which path it wanted to take," Seth added.
Sources close to another committee member Gopal Subramaniam said there was a unanimous decision by the committee members not to comment anything on the government ordinance as they were upset with it.

"A section like marital rape has been dropped from the ordinance, which is so much a necessity keeping in mind the adverse effects it has," said a team associate of the panel.

"The exemption for marital rape stems from a long out dated notion of marriage which regarded wives as no more than the property of their husbands. Marriage in modern times should be regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband," the panel suggested in its 630 page report.

At present, marital rape is viewed as an exception to the offence of rape in the IPC. Section 375 of the Code, which describes rape as an offence, excludes "sexual intercourse by a man with his own wife from the offence — provided that the wife is not under 15 years of age".

"A rapist remains a rapist regardless of his relationship with the victim. It is also important that the legal prohibition on marital rape is accompanied by changes in the attitudes of prosecutors, police officers and those in society more generally," the report reads stating the prevalent provisions throughout the world.

The Justice Verma commission is against death penalty in rape cases and recommends a maximum punishment of life in jail. But the government has favoured capital punishment in rare cases.

The ordinance will come into effect as soon as the president signs it. Parliament has to pass it within six months.

The ordinance on sexual violence against women today evoked a mixed response with main opposition BJP welcoming it but CPI(M) and several women's groups opposed it, attacking the government for doing "injustice" to the Justice Verma Committee recommendations.

BJP welcomed the  ordinance providing for tough punishment including death sentence, saying it supported strict laws but wanted improvements in policing to ensure safety of women.
"The BJP is in support of strict laws. In Parliament, we will elaborate our views. For the security of women there should be genuine and effective law. But good policing and good governance is equally important," spokesperson Ravi Shankar Prasad said, adding the BJP was supportive of all effective measures to deal with crime against women.

However, the CPI(M) attacked the government for violating democratic norms by bringing the ordinance a few weeks ahead of the Parliament session and said it opposed the measure "on both procedural as well as substantive grounds."

"The ordinance has done injustice to the Verma Committee report and appears to be a diversion from the serious issues raised of state culpability," including on issues like inclusion of armed forces in the ambit of criminal law.

The CPI(M) said the ordinance had "rejected" the panel's recommendations on issues like making rape a gender specific crime in the law, on increasing the punishment to public servants guilty of dereliction of duty, of increasing the punishment and guaranteed compensation for victims of acid attacks and was "highly selective" about other suggestions.

In the same vein, the All India Democratic Women's Association and eight other women's bodies too objected to the "selective and arbitrary approach" of the Government to the recommendations.

"The present piecemeal and fragmented ordinance can only serve to sabotage the intention of providing recourse to victims of sexual violence," it said.

The women's organisations demanded a review of ordinance by adopting a "more comprehensive" and holistic approach to the Verma Committee's report.