JURIST Guest Columnist Kim Brancato, DePaul University College of Law Class of 2014, discusses the successes and failures of recent women’s rights legislation in India…

As an observer at the fifty-fourth session of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee hearing a few weeks ago in Geneva, I witnessed the importance of access to justice to the international community. As access to justice for women has been recognized as a major obstacle to the protection of women’s human rights throughout the world, the committee began the preliminary stages for adopting a general recommendation on this topic by requesting information from the international community. On February 18, there was a discussion amongst the Committee, state parties, NGOs, experts and even a personal account from a young Filipino woman struggling her way through the justice system after being a victim of rape. The committee will use this discussion when formulating the general recommendation on access to justice. As a state party to CEDAW, India should be striving to achieve these international standards.

In the wake of the gang-rape and death of a young woman in New Delhi this past December, India reformed its colonial-era laws governing violence against women. On February 3, 2013, the President of India, Pranab Mukherjee, signed the Criminal Law (Amendment) Ordinance [PDF] (the Ordinance). The Ordinance acts as an amendment to the Indian Penal Code, the Code of Criminal Procedure of 1973 [PDF] and the Indian Evidence Act of 1872.

Prominent human rights groups such as Amnesty International (AI) and Human Rights Watch (HRW) have criticized various aspects of the new law. These groups argue that India has only reformed the most archaic of its laws and has failed to meet international standards for women’s rights.

Prior to amending the Ordinance, the Indian government established an advisory committee headed by former Indian Supreme Court Chief Justice J.S. Verma (the Verma Committee). Human rights NGOs argue that the government ignored the Verma Committee’s key recommendations for strengthening the violence against women laws. For instance, one recommendation by the Verma Committee was to lower the age of sexual consent from 18 years old to 16. Just last year, India enacted the Protection of Children from Sexual Offenses Act [PDF] which increased the age of consent to 18. The Verma Committee urged the government to revert the age of consent back to 16 after public outcry, as the committee felt adolescents at age 18 were mature enough to consent. India should implement laws that help adolescents in the 16 to 18 year old age group to act in an informed and responsible manner rather than criminalizing and punishing their behavior.

In addition to criticizing the Indian government for failing to include the Verma Committee’s key recommendations, human rights groups have also criticized various sections of the Ordinance. The major areas of concern include the act’s failure to criminalize marital rape, imposing the same punishment for varying levels of crimes, immunity for police and armed services, conflating adult sex work with trafficking and criminalizing same-sex relations.

To begin, the Ordinance fails to recognize marital rape except in very limited cases where the spouses have been living separately. Section 375 of the Ordinance defines acts constituting sexual assault along with the manner and circumstances in which it may occur. There is only one exception to the entirety of section 375: “sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.” Therefore, a man may commit a violent act of sexual assault without the consent or against the will of his wife and not face any repercussions. In fact, the wife does not have any legal remedies available to her. This is especially an issue in a culture where forced and arranged marriages are not uncommon. Human rights groups have also framed this issue as discriminatory in that “the Ordinance discriminates against women based on their marital status and denies them equal protection before the law.”

Next, the language of the Ordinance makes it difficult to draw a distinction between consensual adult prostitution and human trafficking. Section 370 of the Penal Code defines the offense of trafficking as recruiting, transporting, harboring, transferring or receiving a person by use of threats, force, abduction, fraud, power or inducement “for the purpose of exploitation.” Explanation 1 of section 370 provides that “the expression ‘exploitation’ shall include prostitution” and explanation 2 further continues that “the consent of the victim is immaterial in the determination of the offense of trafficking.” By including these explanations, the Ordinance conflates consensual prostitution with human trafficking, two very different concepts. On a basic level, prostitution is generally understood as sex between a willing buyer and a willing seller, whereas human trafficking is not consensual for the seller, at least initially.

Another major concern is punishments. Human rights groups are generally opposed to the death penalty as they view capital punishment as inhuman, irreversible and a deprivation of the right to life. In order to comply with international standards for human rights, the groups urge India to eliminate capital punishment as a possible sentence for sexual assault, or any other crime for that matter. In addition the same standard is articulated for both penetrative and non-penetrative offenses. Section 376 states that “whoever … commits sexual assault shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.” Without a distinction drawn, perpetrators will face the same sentence for the act of inappropriate touching and acts of penetration.

Human rights groups are critical not only on what the Ordinance includes, but also what it omits. The Ordinance fails to mention Section 377 of the Penal Code, which criminalizes same-sex consensual adult relationships. Additionally, the Delhi High Court ruled [PDF] in 2009 that criminalizing consensual sex-same relationships was a violation of numerous constitutional guarantees — a ruling parliament ignored when drafting the Ordinance. The Indian government had the opportunity to amend section 377 of the penal code through the Ordinance and chose not to.

It appears that India drafted the Ordinance hastily, as a reaction to public outcry after the December incident, rather than seeking consultation from human rights and women’s rights organizations, thoughtfully engaging in dialogue within Parliament and fully considering the Verma Committee’s recommendations.

The Indian government needs to address human rights organizations’ concerns. In order to ensure real change, India should also address how this law will be implemented. With over half of India’s population living in poverty [PDF], access to justice for women also needs to be addressed. Simply updating India’s violence against women laws on paper, especially in the manner that the government has, is likely not enough to see significant change.

Kim Brancato is a Fellow and Scholarship Recipient at the International Human Rights Law Institute and a Title Curative Specialist at Fisher and Shapiro in Chicago.

Suggested citation: Kim Brancato, India’s New Ordinance for Women’s Rights Falls Short, JURIST – Dateline, Apr. 11, 2012, http://jurist.org/dateline/2013/03/kim-brancato-human-rights.php.