Crimes of Exclusion: Siddharth Narrain
Guest post by Siddharth Narrain.
It is anger on the streets that brought back to the forefront the neglected issue of sexual violence, energized a government appointed Committee to put together clear and well reasoned recommendations on law reform, and forced the government to table the Criminal Law Amendment Bill (2013). It is public pressure and years of struggle by the women’s movement that is reflected in the more progressive parts of the Bill, passed recently by both Houses of Parliament. Unfortunately, despite unanimity from a large cross section of society, that the definition of rape cannot be restricted to an outdated understanding of rape as perpetrated by men on women, the version of the Criminal Law Amendment Bill that was finally passed by Parliament retains this language. The law, if passed in this form will be a betrayal of the rights of millions of transgender persons, intersex persons and sexual minorities not born women.
The current Bill is contrary to the Justice Verma Committee report, the most comprehensive document on rape law reform in recent times. The Justice Verma Committee had heard a number of women’s rights and Lesbian Gay Bisexual Transgender rights (LGBT) activists before framing their nuanced recommendation that the law on sexual assault and rape be gender inclusive as far as the victim/survivor is concerned and gender specific as far as the perpetrator is concerned except for specific offences like custodial rape, where the traditional gendered power dynamics could be overturned. Based on this understanding, the Committee suggested that the term ‘person’ be used for the victim/survivor of rape and sexual assault replacing the term ‘woman’, and term ‘man’ be retained for the perpetrator of sexual assault except in few specified offences.
This simple change in language would have brought under the purview of the law the numerous cases of transgender persons and men who are raped and sexually assaulted by men. This move would have recognized decades of struggle by the transgender community in documenting these abuses, including the pioneering 2003 report of the People’s Union for Civil Liberties (PUCL) Karnataka on Human Rights Violations against the Transgender Community. The report documented horrific and widespread instances of sexual violence against the transgender community in Bangalore. The report observed that the brutal stories of abuse and sexual violence documented in it were really narratives of cruelty, leading to the trauma of entire community and negating the constitutional claim of equal citizenship and protection for all.
It is the claim to equality that the Justice Verma Committee relied on when it stated that all sexual identities, including transgender communities are entitled to be totally protected. The Committee observed that the Constitution enables change of beliefs, greater understanding and is an instrument to secure the rights of sexually despised minorities. This followed from the Committee’s understanding that the problem of sexual violence is not just one of penology, but is related to the constitutional guarantee of the right to equality. It is this same claim of equality that the Delhi High Court recognized in 2009 when it decriminalized homosexuality. Keeping in mind the violence faced by LGBT persons by both the police and non state actors like goondas, the court read the right to non discrimination in Article 15 of the Constitution widely, holding that the purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for reason of not being in conformity with generalisation concerning “normal” and “natural” gender roles.
It is deeply disturbing then, that the government, ignoring the Justice Verma Committee recommendations on this point, has deemed it fit to retain the gender specificity of the victim/survivor, thus excluding the lived experience of violence of all those who are not born women. The pioneering feminist Susan Brown Miller, in her groundbreaking work on sexual violence, “Against Our Will”, written in the early eighties recognized that sexual assault could hardly restricted to forced genital copulation, nor was it excessively a male-on-female offence. More than thirty years later, we must ask this question of our law makers and those reluctant to equate sexual violence experienced by women with that experienced by transgender persons, men and sexual minorities not born women: Who is to say that the sexual humiliation suffered by transgender persons and men, and by those intersex persons and sexual minorities not born women, is a lesser violation of the personal, inner space, a lesser injury to mind, spirit and sense of self?
This piece also appeared in the Indian Express.