When a big white bus was driven into the parking lot of a Delhi high court this week, a collective shudder seemed to run through the city.
The vehicle is a sort of Exhibit A in the trial of five of the six men accused in the December gang rape of a 23-year-old physiotherapy student who died of injuries inflicted on her in that bus. Her companion, a 28-year-old software engineer who was badly beaten in that attack, had come to the pink cement courthouse in a wheelchair to testify as the main witness for the prosecution. His first task was to identify the bus; the judges and lawyers accompanied him out to the parking lot. Later in the courtroom, he also identified the five accused.
His testimony, and all other proceedings of the trial, are under a publication ban. The five accused men face the death penalty for her death (not for her rape). The sixth accused has been deemed a juvenile and will be tried under the Juvenile Justice Act; he faces a maximum three years in a detention centre if convicted.
This case has come to court at a record pace, as part of the government’s plan, after the Dec. 16 bus rape, to fast track sexual-violence cases. This week, the government also rushed to make a series of changes to the ways crimes against women are treated, dramatically modernizing some aspects of Indian law.
It was a move on the part of the government to be seen as responding to national anger about impunity for violence against women.
But many critics charged the changes were far from sufficient. The new regulations cover everything from acid attacks to stalking to the forcible stripping of women in public, but they’ve left out some contentious issues, including marital rape and sexual violence in the military. The debate has brought into stark relief the myriad ways in which Indian women are frequently attacked in disputes ranging from the most intimate, in their domestic lives, to the very public, over property, caste and armed conflict.
The changes were recommended by the Verma Committee, a three-member team headed by former Chief Justice J.S. Verma, appointed by the government in the wake of the bus rape and given one month to overhaul the law, some of which dates back to British rule. Backed by a zealous team of young lawyers working 20 hours a day, the committee synthesized 80,000 suggestions from people all over India who were invited to phone, write and e-mail their thoughts after the gang rape. These they merged with suggestions from jurists, women’s groups and survivors of sexual assault to produce recommendations for reform based on the argument that failures by police, the legal system and government have enabled and indeed normalized violence against women.
Earlier this week, the government, using a presidential ordinance, passed many of the recommendations into temporary law; they will be rolled into a new, permanent law on sexual violence that will be voted on in the next session of parliament, which begins Feb. 21.
Among the key changes: Broadening the definition of consent, so a woman’s failure to resist physically can no longer be regarded as consent, and requiring “unequivocal voluntary agreement” to sexual activity; a victim’s sexual history is no longer considered relevant and she cannot be cross-examined about it or her “moral character”; rapes can be committed by more than penises, in that they can include objects used as substitutes for a phallus; while the archaic idea of “outraging the modesty of a woman” remains in the law, there are new sentences of one to three years for offensive touching, gestures or words, treating them as sexual assault.
In another change to existing law, the government upped the maximum sentence to the death penalty for “extreme” rape cases – those that lead to death or leave the victim in a persistent vegetative state – and for repeat offenders.
Though the Verma Committee had recommended against it, calling it regressive when many countries are moving to end capital punishment, the move was popular with much of the public. The government also ordered a minimum 20-year sentence for those found guilty of gang rape.
Organizations working for victims of sexual violence were quick to point out that the new law has serious omissions: Most prominently, it does not criminalize marital rape. A woman raped by her husband continues to have no recourse under Indian law.
In addition, the Verma Committee attempted to end the impunity that human-rights groups say India’s armed forces enjoy on matters of sexual violence. The committee recommended the idea of “command responsibility” – that a senior officer be held responsible for the failure to prevent rape by troops under his or her command. The government did not add this to the law.
Pratiksha Baxi, a sociologist who studies rape trials and teaches at the Centre for the Study of Law and Governance in Delhi, noted another area where the government failed to act: its decision not to remove a requirement that a prosecutor must obtain central government permission (which in practice is almost never given) to charge members of the armed forces in areas where the sweeping Armed Forces Special Powers Act is in place.
The Indian military has repeatedly been criticized by Human Rights Watch and other groups for using sexual violence against the population in the troubled Kashmir Valley and in areas with insurgencies.
The government did adopt the Verma Committee’s recommendation of a new minimum sentence of 10 years in prison for “acid attacks” – when acid is thrown on a woman to burn and disfigure her – an alarmingly common retributive response to spurned advances and family disputes. And, public disrobing – stripping women and making them walk in public, a frequent response to caste-based disputes – is now also considered sexual assault.
Ms. Baxi said her first reaction to the ordinance was “at least they’ve done something.” But the government’s failure to embrace key ideas from the Verma Committee, such as marital rape, means the new law is “incoherent and inadequate,” she added.