The Criminal Law (Amendment) Bill 2013was passed by the Indian Parliament and now awaits the sanction of the President before it replaces the Criminal Law (Amendment) Ordinance 2013. Despite, what can be termed as the third wave of women’s movement in India, the law disengages with the national and feminist consciousness which has emerged post the December 16 Delhi incident. Although the law introduces some useful provisions like defining ‘consent’ for the purposes of section 375 and criminalizing stalking, acid attacks, voyeurism and sexual harassment – the overall message remains regressive in both what the law has chosen to address and omit. This post discusses how Chapter II of the approved Bill concerning the amendments to the Indian Penal code betrays the feminist agenda in its content and context.
Perhaps the greatest disappointment with the new law is its disengagement with the very constituency for whom it is meant for—women. It immediately neglects the Justice Verma Committee report and the continuing efforts of women’s groups since 2009 including the National Commission for Women to formulate better criminal laws for women. This legislative ‘unlearning’ especially when at least the Justice Verma Committee was appointment by the Parliament itself is a bizarre overture. And so is the absence of any legislative consultation before passing these amendments. The Amendment Act has no philosophical or grounding preamble – deeming it unimportant to give even a facial recognition to the developments leading up to the amendments. In effect, it reinforces the paradigmatic position of law as an isolationist and deeply hierarchical (patriarchal) institution. Speaking for and to women rather than as and with them, this law doesn’t quite speak in the tone set by the national feminist movement today.
The new law disappoints with both what it does and doesn’t; such that it reinforces the legal paternalism for protecting women against gender-based violence rather than addressing it with the framework of rights. The content of the law is focused on harsher punishments for new or existing crimes. The death penalty is introduced despite clear voices against it. In reducing the response to gender-based violence to enhanced sentences (rigorous imprisonment and in some cases extending to imprisonment for life without the possibility of release), the law confirms allegiance to patriarchal forms of sentencing, which do not find any resonance with the theories of reformation and correction.
Neither is there any mention of creating a robust structure of rehabilitation, counseling, support and assistance for rape survivors, nor is the amendment couched in the language which sees sexual crimes as a breach of bodily integrity and sexual autonomy. In fact, the Amendment Act leaves untouched Sections 354 and 509 of the Indian Penal Code, which are couched in terms of the notions of modesty and morality. Absent these conceptual shifts in the understanding of sexual violence, we remain in the protectionist mode rather than an enabling and empowering mode.
Further, there is no introduction of a broader provision on sexual assault or aggravated sexual assault committed against women with intersectional identities. The retention of section 377 despite the judgment of the Delhi High Court in the Naz Foundation decision, age of consent at 18 and the continued legality of rape in marriage remain problematic despite the stance of Justice Verma Report. Lastly, the strategy for protecting women by excluding men from the protection of these laws is a clear violation of right to equality and non-discrimination.
In the several hits and misses of this Amendment Act, the question which remains is this: to whomsoever does this law concern? Neither does it seem to address the ilk of 16 December Delhi incidents nor does it seem to be emancipatory for all women and men. The Parliament then, really seems to have created a law unto itself.
Shreya Atrey is a DPhil Candidate in Law at the University of Oxford, and a regular contributor to the OxHRH Blog.