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The Verma Committee: Alchemizing anger to hope: Arvind Narrain

January 25, 2013

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.

14 Comments leave one →
  1. Mohanram permalink
    January 25, 2013 11:35 AM

    Judging from the language and recommendations of the Verma Committee, this is a report which is ideologically skewed by the undue influence of certain NGOs and social activists.

    The emphasis on an issue like marital rape is one example of this tendency. However, the most glaring fault of this Report is to shift the blame on a vaguely defined “patriarchal society” which has been the bugbear of feminists and academics especially on fora like these.

    The most urgent need is to improve the methods of the police, and to reform the judiciary. Since the members of the committee were themselves lawyers, it is not surprising that judicial reform is their blind spot.

    Since the Delhi incident several brutal gang rapes have taken place – and they have been reported in the media. The woman on the street wants better protection. She cannot wait for the reeducation on the masses. She wants to see criminals booked and imprisoned. The fundamental problem is one of law and order.

    R. Jagannathan of Firstpost has listed some of these criticisms in the article below. It remains to be seen if the Verma report will achieve anything at all. The broad reach of the report may well be its undoing.

    http://www.firstpost.com/india/no-silver-bullet-vermas-gender-bender-is-project-2030-601022.html

    • Shourav permalink
      January 25, 2013 8:10 PM

      Amusing. A journalist like Mr. Jagannathan who represents the right-wing spectrum of the establishment begins with his government sponsored response. I expect more ‘journalists’ to come out with opinions along the lines of ‘The report is well intentioned, but….’

    • Sunalini Kumar permalink*
      January 26, 2013 9:11 AM

      Mohanram, what would be a non-ideologically skewed response to this rape? Passing a slew of ‘neutral’ laws, and waiting a few thousand years for the police and other enforcement agencies to catch up? ANYBODY who has worked in the disturbing and highly misogynistic world of rape law enforcement in India knows what a huge problem patriarchal attitudes are at every level, including the judiciary as you rightly point out. But it is not ok to name the beast, is it? Fine, we drop the ‘P’ word. The problem won’t go away! Every woman on the street, who you marshall in favour of your arguments, wants dignity as much as she wants protection. I’m afraid there is no option but to ‘re-educate the masses’; but I would add the classes and the elites to that list. And I’m amazed at the demonisation of NGOs – it’s as if at a moment when the State itself is in crisis over incidents like this one, people want to suddenly come in and protect an old-fashioned sacred cow of ‘law and order’. What are you so afraid of, Mohanram? That Justice Verma may have brought the closet misogynist and raping husband into the daylight? Next you’ll be saying sex workers can’t be raped. It’s convenient, and cowardly, to separate the various realms of women’s oppression, as the Firstpost article does in a confused way. One issue IS connected to another, and the sad fact is that we don’t need new laws, we need the old laws (perfectly adequate if taken seriously) to be implemented with new attitudes. PLUS we need a whole plethora of non-legal reforms. It’s the slow, incovenient and hard way, and if we don’t take it we are doomed. Rape laws will see the same fate the rest of the ‘socialistic’ and ‘secular’ provisions of our constitution.

      • Mohanram permalink
        January 28, 2013 1:45 PM

        Your comment is so full of speculations that I won’t spend any time refuting or commenting on them.

        My point is that without addressing the fundamental law and order issues there will be no change in the lives of ordinary women. Women cannot wait the “slow, inconvenient” ways that you believe in.

        The trouble with left-leaning NGOs and commentators is their complete contempt for the rights of the victims. I am disgusted by every case of rape which I read about because I know that this is nothing new. The Delhi case was brutal, but unfortunately it wasn’t the first of its kind. This case received the attention of the media, and it mobilized the support of the entire nation.

        But contrary to what you want to believe, most Indians are NOT left-leaning academics. Women and men live in the real world, and we want to be safe from crime, and we want that to happen now, not in twenty years, if even that, after your grandiose “re-education” programs are completed!

        So the law and order issue comes first, and I repeat here that the biggest drawback of the Verma report is the omission of the need for judicial reform.

  2. January 25, 2013 11:49 AM

    Love the title of this article.It’s brilliant! Encapsulates and frames things beautifully. A nation’s aspiration and longing to be transformed from a base self to a much nobler self. Well Done Verma Committee!

  3. Brototi permalink
    January 25, 2013 12:19 PM

    Thank you Arvind for putting the Justice Verma committee report in perspective! The articulation of rape & other forms of sexual offences within the framework of equality and dignity of the individual is historic. The women’s movement has long demanded the recognition of rape as what it is…..violence against women’s bodily integrity. It is high time that there is a paradigm shift in how our legal framework looks at women…rape (including the exception to sexual violence in marriage), language of the law (outraging modesty of a woman) etc must be replaced with a rights based approach!

  4. Abhijit RAY permalink
    January 25, 2013 1:49 PM

    I think report is utopian. I am disappointed how the report has treated heinous crimes committed by juveniles. It is recommended that juveniles should not be executed, juvenile age should not be lowered. That means the monster that raped and disembowelled an innocent girl will be with us in the society after three years. Our judicial system cannot keep him behind bars for rest of his life. I am all the contributors of this report will feel comfortable spending time with this reformed person. Indian state has been trying for last 60 years or more with a brilliant constitution. However, we are neither safe, neither do we get justice, only thing that has happened is further emboldening of criminals. Atleast, speedy and strong rule of law could have stopped people from thinking twice. The commission has made it sure that the status quo will continue. We are too idealistic and very little practical. We have no means to feed, clothe and protecting our regular citizens, but we want to protect criminals that insert a rod inside a living person and pull out intestines. Long live India.

  5. Shama Zaidi permalink
    January 25, 2013 2:21 PM

    Readers will be interested to know that the women members of the Fundamental Rights committee at the time of formulating the constitution, asked for marriage by choice as a fundamental right, but this was not acceptable. The clause that was not included read thus: “The State shall endeavour to secure that marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of a husband an wife as basis. The State shall also recognise that motherhood has a special claim upon its care and protection.( taken from the Japanese and Weimar Constitutions.)

  6. Milan permalink
    January 27, 2013 1:43 PM

    The Verma report has been articulated very well but why can’t I see any mention of prostitution, another form of woman commodification, as also an example of the various forms of Rape. Are they saying that sex workers, who have been trapped in the body selling business, are mere toys and no more humans? Are they, by virtue of the nature of their work, no more under the umbrella of Right to live with dignity?

  7. January 28, 2013 10:29 PM

    The most effective deterrent is Death Penalty. The Committee has not included this, has made no provision for this, even in rarest of case. Utopian and very Cerebral indeed. Lets put it this way, (1) The Aggressors shall, at the cost of the exchequer, ruminate on his/their excesses, for life (please note there is no provision in the recommendations to review the sentence, to gauge remorse or psychological change in the attitude of the rapist(s). Positive review can not be tested unless the rapists are set free among vulnerable women once again.(2) So, however violent, brutal be the serial rapist, gang rapists, paedophiles the aggressors can walk free after minimum seven years. (3) If the aggressors commit the same crime after release, should the blame be on the the State, Police or the Judiciary ? Politicians, Bureaucrats, Police are all accountable. How come there is no provision for such accountability especially for above examples ? The committee has not recommended maintenance of any register for sexual offenders. (4) If there is a brutal assault on a pregnant woman and if she becomes vegetative, or the fetus aborts or both die because of such assault, should the case be tried under the “rape’ clause or otherwise? (5) If one of the gang rapists is AIDs infected and if the victim survives with AIDs (common trafficking cases), can this be considered as ‘life sentence’ upon the victim or a ‘death sentence’? (6) There is mention of ‘voyeurism’ , however, today’s porn industry is not just ‘voyeurism’ . It thrives on trafficking of children, men and women. It thrives on cyber space, but is constructed in corporeal world of drugs, rape and exploitation. This is the future world. The Committee has not come out with specific recommendations on sexual cyber crime.Stalking is too mild a word for it. As technology evolves, so must laws. Prevention & Preemptive action by State has to be supported by specific laws. (7) How will the State discharge its obligation to ensure gender justice (including protecting women from crime and abuse, what about exploitation other than sexual ?) overnight ? How can mindsets be upgraded in such a short time as to bring down the rate of rapes per hour ? (8) What about Juveniles raping older women or other juveniles ? Is a juvenile to be classified as such only by a mere school certificate, which can be manipulated at the initial stages in rural areas ? World over, humanity is reaching sexual maturity at younger ages. Is there a tool to measure the equation between sexual vs emotional and mental maturity to assign responsibility of action ? A month to re-evaluate the most ancient crime of humanity against humanity – Rape cum Murder ?

  8. January 31, 2013 10:57 PM

    I agree with Mohanram’s comments (1)Women cannot wait the “slow, inconvenient” ways that you believe in. (2)But contrary to what you want to believe, most Indians are NOT left-leaning academics. I would suggest further modification in comment ’2′; most of the Indians are not left leaning OR pseudo-liberal arm chair, close circuited self opinionated right activists. I ask once again, why do we call a person ‘child like’? because, generally a child finds it easy to forgive and trust once again. This is part of nature, to be hurt, learn and move on. However, if some right activists feel that ‘a juvenile rapist’ should be forgiven because he was abused in his childhood, should law look the other way if every sexually abused girl child grows up a murderess? The logic of allowing a brutal juvenile or adult criminal to ‘reform’ during ‘imprisonment throughout natural life’ is incomprehensible and illogical. If a person has repented and reformed, he has to be released back in to civil society. If there is an apprehension that he might have not reformed or not likely to truly repent, what is the point in burdening an already poor state ? The important point that is being missed even by the Verma Committee is that ‘Rape’ is both. Rape and Murder. Especially gang rapes. Further Rape is once again both – an offense against an individual (an woman) and the society (because it attacks the very basis of a family unit). It is against nature’s basic concept of carrying forward of life – sex, the choice of a mate. So imagine, how can one comprehend this biological need in terms of nature ordained need to carry forward one’s genetic material ? To impregnate a woman and kill her ? To impregnate a female who is not of reproductive age ? To impregnate a woman with a rod ? Let us see it this way – today, India is slowly veering towards an irreversible skewed sex ratio. Every act of violence against a female is going to aggravate this trend by directly reducing the ratio (death) or making that woman unfit for reproduction & nurturing capacity by impairing her physically, emotionally and mentally or by creating a fear psychosis in normal, average reproductively capable citizens (who realising that in absence of any truly deterrent punishment, will seek ways & means to stop conceiving a female child). The last part has been captured statistically, for that is what ‘honour’ killing etc. is all about. But where is the statistics to prove that ‘Death penalty’ will be an incentive for rapists to murder their victims ? ???!!!!

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