Feb 15th, 2013 by Alison Morris
Photo courtesy of AP
Earlier this month, India’s President Mukherjee signed a new criminal law amendment for India’s criminal law on violence against women. However, this new criminal law was not celebrated or applauded; instead, it was passed despite protests from human rights groups and women’s rights groups. Main arguments against the law are that: it fails to deal with police accountability, it fails to frame “sexual violence as a violation of women’s rights to bodily integrity,” and it fails to “reflect international human rights law and standards” as well as “the views of women’s rights groups in” India.
For instance, one issue is that the ordinance retains immunity for police and armed force members who are accused of sexual violence, and the age of consent has been raised from 16 to 18, which has been seen as harming rather than helping teenagers. The Verma Committee has said police immunity should be abolished, and “The Protection of Children from Sexual Offences Act, enacted in 2012,” has said that the age of consent should be 16.
Similarly, the ordinance perpetuates “archaic and discriminatory concepts” by defining the criminal offenses as “‘insults’ or ‘outrages’ to women’s ‘modesty’” instead of defining the crimes as being against a women’s right to bodily integrity. For instance, the ordinance does not adequately distinguish between sexual offenses that include penetration versus sexual offenses that do not include penetration. For example: “the act of touching another person’s breast is given the same punishment as penetrative sexual offences.” The ordinance also discriminates against married women by including that “wives cannot bring a charge of “sexual assault” against husbands except under extremely narrow grounds: where they are “living separately under a decree of separation or under any custom or usage.”
The new law also permits “the death penalty for sexual assault when it results in death or “persistent vegetative state” for the victim and in cases of certain repeat offenders.” While Amnesty International and Human Rights Watch are against this provision because of their position on the death penalty in general (it is the ultimate cruel, inhuman, and degrading punishment and a violation of the right to life), the provision is also being protested because instead of focusing on punishment, legislators should ensure that the law substantially reforms the system by which sexual violence is reported, investigated and prosecuted.”
Last, the new law fails to repeal the applicable penal code section that criminalizes same-sex relations between adults, even though the Delhi High Court in 2009 held that this type of criminalization is unconstitutional.
Do you think this new law will appropriately deal with sexual violence in India? Will this new law be taken seriously given that the police are immune? Since it has been held that the criminalization of same sex relations is unconstitutional, does that penal code section need to be repealed? Are there other reasons why it should it be if that is the case?