ML Update 07 / FEB 2013

MLUpdate

A CPI(ML) Weekly News Magazine

Vol. 16 No. 07 5-11 FEB 2013

No to Ordinance That Dilutes and Subverts Justice Verma Recommendations

The ordinance on sexual violence laws introduced by the UPA Government is a mockery of the month-and-a-half long continuing struggle demanding justice and freedom for women. Instead of implementing the Justice Verma Committee recommendations, the Government has brought in an ordinance that undermines the spirit and thrust of the Committee’s Report and its key recommendations.

Any ordinance is promulgated as an emergency measure. Women live in a daily state of ‘emergency’, their freedom curbed by the fear of sexual violence. But it is not that emergency which has prompted the Government’s ordinance. Rather, for the Government, the ‘emergency’ was the desperate need to somehow dilute and divert the Justice Verma recommendations, which reflected the aims and demands of the ongoing countrywide movement.

The ordinance expands the definition of sexual violence, recognises stalking, acid-throwing, and voyeurism, and introduces more severe punishments. But on a range of key questions, the ordinance goes against women’s autonomy and rights, and avoids ending impunity of powerful rapists, and ensuring accountability of police and other institutions.

The ordinance makes the perpetrator of rape ‘gender-neural’: i.e both men and women can be accused of rape. This will mean that if a woman files a rape complaint against a man, he can file a counter-complaint of rape against her! What a joke with women of our country!

The ordinance does not respect the right of young girls between the age of 16-18 to have sexual contact by their consent with male friends of a similar age. Instead, by automatically branding all such sexual contact as ‘rape’, the ordinance will strengthen the khap panchayats and moral policing brigades who seek to curb the freedom of young people of that age.

The ordinance legitimises marital rape and strengthens the idea of the wife as the ‘sexual property’ of the husband. It also retains the provision of lesser sentence (minimum sentence of 2 years) for a husband who rapes a legally separated wife! Therefore, even if a wife has taken the pains to separate herself from an abusive husband, the law will make excuses for him if he rapes her. The exclusion of marital rape and the lesser sentence for rape of a separated wife are shocking violations of the principle that the relationship or prior relationship of the accused with the victim will not be grounds to undermine the rape complaint or show leniency.

Not only that, according to the ordinance, wives cannot accuse husbands of sexual assault – but because of the ‘gender-neutral’ provision, husbands can accuse wives of sexual assault! Husbands cannot get life sentence or death sentence for sexual assault even of a separated wife, but a wife accused by a husband of sexual assault, can under the ordinance get life sentence and even death sentence for repeat offences.

The ordinance continues to protect the powerful. There are no provisions against candidates charge sheeted for sexual violence. The ordinance retains the requirement of ‘prior permission’ for prosecution of public servants/judges/magistrates/army officers. So, no Ruchika Girotra or Soni Sori (molested by a police officer), Geetika Sharma or Rupam Pathak (raped by MLAs), or Thangjam Manorama (raped by army personnel) can expect justice under this ordinance! Senior police/army officers will not be investigated or punished for custodial rapes that are committed at their orders or with their knowledge in custody by their junior officers. Sexual violence during caste or communal massacres and against of SC/ST women have not been recognised as ‘aggravated sexual assault.’

To ensure accountability of the police, Justice Verma has stipulated a punishment of 5 years imprisonment for failure to register an FIR or biased investigation, in order to instil fear of consequence in police personnel who fail to abide by the law. But the ordinance dilutes this to a mere 1 year, and so clearly sends a message of leniency out to the police.

The ordinance retains patriarchal language, continuing to call molestation as ‘outraging modesty.’ Not only does the ordinance fail to ban the demeaning and sexist two-finger test, and its definition of rape actually legitimises the two-finger test, in the name of ‘penetration for medical purposes.’

The shoddily-drafted and anti-women ordinance, promulgated by stealth before any citizen of the country had even seen it, is a disservice to the painstakingly prepared Justice Verma Report that adopted a thoroughly democratic and rigorous process, and came up with a report showed the way to promoting women’s freedom, rights, and safety.

Meanwhile, the BJP, which is quite comfortable with the anti-women provisions in the ordinance, is now trying to make political capital by naming a museum after the Delhi braveheart. A leader of the same BJP had, when the girl was fighting bravely to live, insulted her by calling her a ‘zinda laash’ (walking corpse); the BJP defended the RSS chief when he implicitly blamed the girl for inviting rape, by saying ‘rapes happen in westernised India, not Bharat’; a BJP leader of MP justified rape as the inevitable consequence of crossing ‘Laxman Rekha’; and recently another BJP leader of MP said that protecting girls was their parents’ responsibility, not the Government’s. For this party that openly encourages the culture of victim-blaming for rape, to try and cash in on the braveheart’s name, is a shame.

It is a triumph of the ongoing movement, that it has kept the issue of women’s freedom and safety alive for a month and a half. The movement has spiritedly resisted the eyewash of an ordinance, and will continue to agitate for full implementation of the Justice Verma Committee Report. In the coming Budget Session of the Parliament, fighting young people and women will certainly intensify their struggle, and keep a close watch on Parliament, to force it to implement the Justice Verma recommendations!

CPI(ML) State Conference in Punjab

The first Punjab State Conference of CPI(ML) was held in Mansa, Punjab on 30-31 January 2013. The Conference was preceded by a well attended mass meeting of agrarian workers, peasants, workers and people from other walks of life who came mainly from the Mansa district. This was addressed by Central Committee members Kavita Krishnan and Swapan Mukherjee, Party’s Punjab State Secretary Rajwinder Singh Rana, Gurmit Singh, AIALA leader Bhagwant Samaon, RYA leader Kanwaljeet Singh and some other state leaders. Comrade Ruldu Singh, President of All India Kisan Mahasabha presided over this meeting. Central Committee members Rajendra Pratholi and Sanjay Sharma also attended this rally.

A delegation of local traders and shopkeepers’ Association attended the rally to express their solidarity with our movement. Comrade Samuel John, the lead actor in a Punjabi film ‘Anhe Ghore Da Daan’, based on the life and struggles of dalits in Punjab which won many international and national awards, was felicitated by Com. Kavita Krishnan and other guests at the rally. Comrade Samuel stages two plays on this occasion.

The Conference Hall was named Comrade Hakim Singh Samao Hall and the stage was named after Comrade Jeeta Kaur. The delegates from many districts of Punjab including Mansa, Sangrur, Bhatinda, Barnala, Gurdaspur, Chandigarh, Ludhiana and Hoshiarpur, participated in the Conference. Nearly 15 percent of the total delegates were women. The Conference elected a 5-member Presidium and 3-member Steering Committee to conduct its proceedings.

Rajwinder Rana placed the report before the delegates on behalf of the outgoing State Leading Team. Twenty six delegates, including a number of women delegates, spoke on the report. The major issues came in the discussions included functioning of Party structures, Party education, recruitment of new members and developing the new cadres especially from among women, students and youth, development of cultural organisation, to give a systematic shape to the work among migrant worker particularly in industrial cities and expansion of our struggles in rural belts of Punjab. After very lively discussions the report was passed unanimously with some incorporations and changes.

The Conference elected a 21-member State Committee with Comrade Rajwinder Rana as its Secretary. Com. Rajendra Pratholi, Central Observer, conducted the election process. The Conference was concluded with his encouraging speech.

The Conference passed resolution to transform 20-21 Feb. All India General Strike into the successful political strike in Punjab and for the success of Party 9th All India Congress to be held in Ranchi on 2-6 April 2013. The Conference adopted resolution paying tributes to the Martyrs including comrades Sankar Mitra and Gurusharan Singh. The Conference ended with the singing of the Communist Internationale.

Protest in Delhi against Forcible Land Acquisition for POSCO

AISA organized protest on February 4 at Odisha Bhawan in New Delhi against forceful entry of 15 platoons of the Odisha police in Gobindpur village of Jagatsinghpur district of Odisha in order to forcibly acquire land for the proposed POSCO project. Slogans were raised against the lathi-charge on men, women and children who resisted the forcible acquisition of their land by the police and local administration in Gobindpur village and to prosecute the guilty officers. The protestors also demanded scrapping of the POSCO project immediately as it has no statutory environmental clearance and the concerned MOU of the project has also lapsed. The protestors marched inside the Odisha Bhawan and submitted a memorandum addressed to the Governor through Resident Commissioner. The protestors demanded that Odisha Chief Minister Naveen Patnaik should stop behaving as agent of POSCO against the interests of the poor villagers. Addressing the protestors, AISA President Sandeep Singh said that movement for Jal, Jangal and Jameen is intensifying everywhere in the country against the government policies of handing over natural resources to private companies for pittance. The meeting was also addressed by speakers from National Alliance for People’s Movement (NAPM) and other organizations who joined the protest. The speakers expressed their solidarity with the struggling and brave villagers of Gobindpur who are standing their ground against the brutal police clampdown. They condemned in unequivocal terms the manner in which force was used even against the protesting children. It is noteworthy that this time around, the police and administration are attempting to acquire 700 acres of land for the proposed steel plant.

AIPWA Meet in Odisha

On the eve of 64th republic day AIPWA held a meeting in the wake of the ongoing nationwide movement against Delhi gangrape incident, at Nagbhusan Bhavan, Bhubaneshwar, where around hundred activists participated. Ajoi, Sabita and Sarita Rao addressed the members and reiterated the demands being raised by the AIPWA. Mahnedra Parida, Janaki Rao and Yudhistir Mohapatra also addressed the meet.

AICCTU Protests in Solidarity with the Struggling Maruti Workers

AICCTU held a protest demonstration in Delhi in support of the struggle of workers of Maruti-Suzuki plant in Manesar. The protest was held on the nationwide call given by the provisional committee of the Maruti-Suzuki Workers’ Union to hold protests in solidarity with the demands of the workers of Automobile sector who are facing continuous attacks on their democratic and trade union rights, particularly by Haryana and Central governments.

The protesters demanded to withdraw cases from all Maruti workers and release more than one hundred and fifty jailed workers immediately. They also demanded to reinstate all retrenched workers who have been expelled violating the laws of the land to satisfy the Maruti Management. The speakers warned the governments for institutionlising attacks on industrial democracy, trade union rights and general democratic rights of the working class all over the country. They appealed to make the forthcoming all India general strike on Feb. 20-21 ’13 a success. Comrades Rajiv Dimri, AICCTU Secretary, Sanjay Sharma, CPI(ML) Delhi State Secretary, VKS Gautam AICCTU Delhi President, CPI(ML) leader Girija Pathak and AISA’s Akbar Chaudhary addressed the protesters.

Meet in Memory of Gorakh Pande

Jan Sanskriti Manch and ‘Sangwaari’ organised a meeting in remembrance of revolutionary people’s peot Gorakh Pandey to commemorate his memorial day on 29 Jan. at Charu Bhawan in Delhi. Gopan Pradhan, poet Chandrabhushan, film maker and activist Sanjay Joshi, Mitra Ranjan and Girija Pathak addressed the gathering. Speakers said that Gorakh’s poetry fights against injustice and inequality and exposes oppressing classes at philosophical ideological level in a popular way. His poetry showed immense sensitivity towards the oppressed and repressed classes and now it is an invaluable treasure for the common masses as well as cultural activists. CPI(ML) activists Amarnath Tiwary and Subodh Sinha recalled their association with Gorakh Pande and said that while his poetry deeply reflected ground reality, the poet himself was very keen on going among common masses and working class localities to share his thoughts and poems with them. Poet Shyam Sushil read out some of Gorakh Pande’s poems on the occasion.

Obituary

Alakhnath Upreti

Comrade Alakhnath Upreti, a veteran of the communist movement and a people’s artist passed away on 12 December 2012. Born in Bareilly and brought up in Almora, he post-graduated from Allahabad Univ. where he had joined the communist movement and later worked in Almora where he inspired many youths towards communism. In 1962 he came to Delhi to work as a school teacher where he was in leading role in Delhi teachers’ struggles. He was a good theater artist and had given performances in many plays. He also worked in a movie Megha Aa.

ML Update pays tributes to the departed communist.

Kishori Lal

Comrade Kishori Lal passed away on 14 January 2013 in a hospital in Delhi of multiple organ failure due to a prolonged illness caused by cerebral tumor. He was a leading comrade in Narela area and President of Jhalani Workers’ Union. He was a straight-forward and disciplined cadre who always remained vocal against alien ideas in party and the workers’ movement. He had migrated to Delhi from Mau district of UP years ago, had also led people in his native village against the oppressing classes. His dedication for the party in spite of various difficulties he faced will be inspiring for the party members.

A memorial meeting was organised in Narela, Delhi, which was attended by comrade Rajendra Pratholi, CC member, and many leading comrades of Delhi.

AISA, RYA and AIPWA Protest against the Govt Ordinance on Sexual Violence, Terming it Eyewash

AISA and AIPWA organized a protest demonstration at Jantar Mantar on Feb 4, and also at Shastri Bhawan where Finance Minister Chidambaram and Congress Spokesperson Manish Tewari were holding a press conference on the issue, under the banner of ‘Bekhauf Azadi’ along with representatives of AIDWA. The protest unequivocally condemned the government ordinance amending laws related to sexual violence. They raised slogans, ‘The Govt’s Ordinance is an Eyewash’ and ‘Chidambaram and Tewari Must Answer: Who Gave the UPA Govt the Right to Truncate And Dilute the Justice Verma Recommendations?’

Comparison of the JVC Recommendations With the UPA Govt’s Ordinance
the JVC Recommendations UPA Govt’s Ordinance
1 For the first time in India, spelt out a constitutional Bill of Rights for women, and the means to ensure those fundamental rights to equality, freedom, and autonomy Ignores the Bill of Rights
2 Recognised that sexual violence is not an act of sex or lust: it is an act of patriarchal power. Therefore, to reduce sexual violence, we must safeguard women’s freedom and rights; and to ensure that perpetrators are punished, we must undo the impunity and protection for such offences that is built into the laws and into our system Maintains the inbuilt ways in which laws protect powerful perpetrators
3 Recognised women’s rights to autonomy: including her sexual autonomy and her right to choose her partners, friends, and spouses. Recommended changing the archaic and anti-women vocabulary of laws. Understood sexual violence as a violation of a woman’s bodily integrity and her dignity, rather than as ‘outraging modesty’, ‘robbing honour’ or bringing ‘shame’. Has many clauses that go AGAINST women’s autonomy and freedom, and retains the anti-women wording of ‘outraging modesty’ instead of molestation or sexual violence
4 Recognised women’s rights to autonomy: including her sexual autonomy and her right to choose her partners, friends, and spouses. Recommended changing the archaic and anti-women vocabulary of laws. Understood sexual violence as a violation of a woman’s bodily integrity and her dignity, rather than as ‘outraging modesty’, ‘robbing honour’ or bringing ‘shame’. Accepted the changed definition of ‘consent’ as recommended by JVC, BUT retained many of the substantial provisions that fail to recognise and respect women’s ‘consent’ – in case of married women, 16-18 year-old girls, and women who complain against the powerful people such as judges, magistrates, police officers, bureaucrats, and army officers.
5 Redefined the meaning of ‘consent’: stating that unless a woman indicates ‘Yes’ to sex, either by word or by gesture, no one can ‘assume’ that she consented. In the present system, many rape cases go unpunished because a woman is ‘presumed’ to have consented unless she has marks of injury on her body or on the body of the accused. She is ‘presumed’ to have consented if she is married to the accused. A girl is ‘presumed’ to be incapable of consent to sexual contact if she is 16-18 years old, even if her partner is of a similar young age, unless she is married to him. Moreover, she is ‘presumed’ to be lying if the man she accuses is a public servant; a judge; a magistrate; or an army officer; that is why, in such cases, prior permission from the Govt is needed in order to prosecute the accused. Justice Verma sought to challenge and change these in-built, wrong assumptions that go against justice for women. Accepted expanded definition and scope of sexual assault, and more severe punishment
6 Expanded the meaning of sexual assault to cover a range of forms of sexual violence: from sexual harassment to stalking to voyeurism (making MMS etc) to acid-throwing to rape by insertion of an object or a male body part. Recommended higher and more severe punishment for various forms of sexual violence. Makes the perpetrator/accused in the rape law gender-neutral – i.e both men and women can be accused of rape. This will mean that if a woman files a rape complaint against a man, he can file a counter-complaint of rape against her!
7 Recognised that the victim of sexual violence could be ‘gender-neutral’ (i.e could be female/male/transgender/hijra etc), but that the perpetrator is male. All mutual sexual contact between young girls and boys of the age group 16-18 is automatically termed as ‘rape’. This means that innocent young boys will face rape charges, for no crime except that they befriended young girls of their own age. And a generation of young boys who grow up without learning to see girls as equals and as friends, will be more likely to be violent towards women as adults.
8 Recognised that young people between the age of 16-18 do, naturally, indulge in sexual experimentation, and that such sexual contact between young people by mutual consent cannot automatically be termed ‘rape’. Legitimises marital rape – i.e forced sexual contact by husband against wife’s consent. Therefore strengthens the idea of the wife as the ‘sexual property’ of the husband. Retains the provision of lesser sentence (minimum sentence of 2 years) for a husband who rapes a legally separated wife! Therefore, even if a wife has taken the pains to separate herself from an abusive husband, the law will make excuses for him if he rapes her, on the grounds that she was once his wife, and so he can be excused for thinking of her as his property! Not only that, according to the ordinance, wives cannot accuse husbands of sexual assault – but because of the ‘gender-neutral’ provision, husbands can accuse wives of sexual assault! Not only that, husbands cannot get life sentence or death sentence for sexual assault even of a separated wife, but a wife accused by a husband of sexual assault, can under the ordinance get life sentence and even death sentence!
9 Recognises that rape happens even within marriage. Asserted that sexual contact, even within a marriage, must be with a woman’s consent; a wife is not her husband’s property, and cannot be ‘expected’ to have sex with her husband, against her will. Therefore, recommended removal of the existing exemption of ‘marital rape’ from the rape law. Upheld the principle that in the case of rape and sexual assault, the relationship of the accused with the complainant will not be the basis for denying her claim of rape; neither can it be the basis for a more lenient sentence. Therefore recommended deletion of the provision of lenient sentence in case of rape of a legally separated wife by a husband. Continues to protect the powerful. No provisions against candidates charged with sexual violence. Retains the requirement of ‘prior permission’ for prosecution of public servants/judges/magistrates/army officers. So, no Ruchika Girotra (molested by a police officer), Geetika Sharma or Rupam Pathak (raped by MLAs), Thangjam Manorama (raped by army personnel) can expect justice!
10 Sought to get rid of protections for powerful offenders. Recommended that politicians against whom a charge sheet has been filed for sexual violence, be prevented from contesting elections. Recommended that no sanction/prior permission be required to prosecute judges/magistrates/public servants who are accused of sexual violence; and similarly that the AFSPA be amended to do away with the requirement for sanction/prior permission to prosecute an army officer accused of sexual violence. Justice Verma’s argument is clear: no army officer nor any judge or public servant can claim to have raped in the course of his duty. As in any case, the Court can be the best judge, based on available evidence, of whether a complaint is false or true. Senior police/army officers will not be investigated or punished for custodial rapes that are committed at their orders or with their knowledge in custody by their junior officers.
11 Recommended changes in the law based on the principle of ‘command responsibility’ in case of custodial rape by police or army: i.e the principle that a superior officer will be held responsible if he orders or knowingly allows a junior officer to commit rape or sexual assault against a woman who is in custody, or is in a conflict area. This principle is very important if one looks at the rape of Soni Sori (Chhattisgarh SP Ankit Garg ordered his men to sexually torture her) or the rape and murder of Thangjam Manorama in Manipur in the custody of personnel of the Assam Rifles. Such rapes could not have occurred without the knowledge and explicit orders/tacit consent of senior officers. Given the widespread prevalence of sexual violence in conflict areas, the JVC also recommended a review of the AFSPA, which is encouraging such violence. That AFSPA in any case has a provision for periodic review, which has however not been done. Does not prohibit ‘two-finger test,’ whereby a doctor puts two fingers into a rape survivor’s body to check if she is ‘habituated to sex.’ In fact, the ordinance’s definition of ‘rape’ (Section 375) legitimises this test, by stating that penetration or touching of private parts ‘for medical purposes’ (without specifying the need to obtain prior consent of the patient) will not be considered rape. The rape definition in the ordinance also, strangely, justifies penetration of the body for ‘hygienic’ purposes – so now, many rapists can try and explain away rape as a lesson in hygiene!
12 Recommended changes in the existing medical investigation protocol rape survivor. Recommended prohibition of the demeaning two-finger test and other forms of medical examination that investigate women’s past sexual history. Also recommended a protocol to ensure sensitive medical care of a rape survivor. Accepts changes in judicial procedure, but does nothing in the direction of speedier justice
13 Recommended more judges, more courts to ensure speedier trials and timely justice; also changes in judicial procedures to make rape trials gender-just.
14 Did not recommend death sentence. Includes death sentence for rapes that result in death or permanent vegetative state of the victim. In the case of death of the victim, the provision of death sentence already exists and is nothing new. Death sentence for causing permanent vegetative state is dangerous for women: since the risk of hanging for murder and rape are the same, it is likely to become an incentive for the rapist to make sure to kill the victim so that she cannot testify against him.
15 made the Govt responsible for the failure to protect women from violence

a) recommended 5 years imprisonment for police personnel who fail to do their duty (i.e filing FIRs, pursuing a fair investigation), recommended comprehensive police reforms

b) recommended setting up of well-equipped Rape Crisis Centres; safe houses for women facing violence; forensic investigation; and juvenile justice homes

c) Spelt out the Govt’s duty to ensure safe and adequate public transport, and safety at bus stops and on streets, and a range of other governance measures.

No efforts to ensure police accountability or governance;

a) Punishment for failure to register FIR or biased investigation is just a token 1 year; no police reforms

b) No provisions for rape crisis centres, forensic facilities, safe houses, juvenile homes etc

c) No governance measures such as public transport etc to ensure safer public spaces for women

Edited, published and printed by S. Bhattacharya for CPI(ML) Liberation from U-90, Shakarpur, Delhi-92; printed at Bol Publication,
R-18/2, Ramesh Park, Laxmi Nagar, Delhi-92; Phone:22521067; fax: 22518248, e-mail: mlupdate, website: www.cpiml.org

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