The Human Rights Watch and Amnesty International have stated that the new criminal law on violence against women should either be replaced or amended.
On February 3, 2013, Indian President Pranab Mukherjee signed the Criminal Law (Amendment) Ordinance 2013, amending criminal laws. Legislation addressing sexual violence should reflect international human rights law and standards, and incorporate key recommendations of the recently appointed Verma Committee, the rights groups said.
“The new ordinance reforms India’s colonial-era laws on sexual violence, but fails to provide crucial human rights protections and redress for victims,” Meenakshi Ganguly, South Asia director at Human Rights Watch, said, adding, “Indian parliamentarians should insist on a law that deals with these critical issues.”
The new ordinance unfortunately ignores the committee’s key recommendations, especially on police accountability and framing sexual violence as a violation of women’s rights to bodily integrity.
“There should be a robust discussion in parliament before any law is enacted, and amendments should not ignore key recommendations of the Verma Committee or the views of women’s rights groups in the country,” said G Ananthapadmanabhan, chief executive of Amnesty International India.
The ordinance falls short of international human rights standards in several ways, the rights groups said.
It fails to criminalize the full range of sexual violence with appropriate punishments in accordance with international human rights law. It includes vague and discriminatory provisions, and introduces capital punishment in some cases of sexual assault.
The ordinance also retains effective legal immunity for members of state security forces accused of sexual violence, harms rather than helps teenagers by increasing the age of consent to sex, and defines “trafficking” in a way that might conflate it with adult consensual sex work.
Some of the definitions incorporated in the ordinance do not appropriately protect women from sexual violence, the human rights groups said.
The ordinance retains archaic and discriminatory concepts used to define criminal offenses as “insults” or “outrages” to women’s “modesty” rather than crimes against their right to bodily integrity. This violates India’s international legal obligations to amend all laws containing gender discriminatory provisions.
The ordinance includes penetrative sexual offenses within the definition of “sexual assault” and fails to draw a distinction between the harm caused by penetrative and non-penetrative offenses. For example, the act of touching another person’s breast is given the same punishment as penetrative sexual offenses.
The ordinance discriminates against women based on their marital status and denies them equal protection before the law. Under section 375 of the amended Penal Code, wives cannot bring a charge of “sexual assault” against husbands except under extremely narrow grounds: where she is “living separately under a decree of separation or under any custom or usage.”
India has ratified treaties and supported declarations that uphold the right to sexual autonomy as a matter of women’s equality, including the right to decide freely whether to have sex free of coercion, discrimination and violence.
Criminal law must provide protection from martial rape under all circumstances, the rights groups said.
The ordinance introduces 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.
Amnesty International and Human Rights Watch oppose death penalty under all circumstances as the ultimate cruel, inhuman, and degrading punishment and a violation of the right to life. This irreversible form of punishment has been abolished by a majority of countries.
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