A recently-issued report from the Justice J.S. Verma Committee, established to recommend reforms to India’s sexual violence laws after the gang rape of a 23-year-old woman in Delhi sparked nationwide protests, has been described as a game changer: it represents a scathing critique of the Indian state and governing class, while suggesting ambitious reforms to the country’s legal, judicial and political system.
The Indian government’s first real attempt at legal changes since the rape, was adopted over the weekend. The government took on board some of the report’s recommendations while ignoring others, approving the death penalty for rape, for example, while ignoring recommendations that marital rape be made a crime. The Verma committee has declined to comment on the changes this weekend.
The three-member committee that wrote the report comprised J.S. Verma, a former Chief Justice of India, Leila Seth, a former chief justice of the Himachal Pradesh High Court, and Gopal Subramanium, a former Solicitor General of India. The report, which runs more than 650 pages, includes a bill of rights for women, recommends politically difficult measures such as the prosecution of armed personnel accused of crimes against women, and the disqualification of parliamentarians charged with sexual offenses. It also details a standard protocol for the medical examination of rape victims, and calls for an overhaul of the police force.
India Ink recently met Mr. Subramanium at his New Delhi office, where much of the committee’s work was carried out, to talk about the protests that swept India, the problems with the Indian state, and how he expects the government to act.
The committee’s mandate was fairly limited, but you chose to interpret it, as you have said before, “expansively.” Did you see this as an opportunity to make a forceful call for action?
If you go literally by the words of the notification, it talks about amendment to criminal laws, which is a fairly general expression. But the multidimensional approach arose as we started working. We first looked at rape only, but found that this was not answering our own aspirations of what people wanted to know.
Somewhere we felt that the protesters, the people who empowered the appointment of this committee, wanted larger answers. We started finding that it’s not only about physical intercourse, it’s about consent and freedom.
So what we did was, we first looked at the rape victim: What part of her experience is attributable to the state? To bad parenting of men? To the social subculture which is bred?
Then we looked at the protector, the policeman: What is his role? How does he correlate with the constitution? Is he sensitive to the circumstances of the victim?
Finally, we looked at the rapist and who he is. He doesn’t jump from Mars or the moon. How does a rapist develop? What works in his mind? What could deter him?
We realized that the intervention by law in this case could not just be prosaic in the sense of suggesting a new definition of rape, or adding an offense here, or tweaking a section here.
The report pays a profound tribute to the protesters who came out on the streets demanding justice for the victim. To your mind, what did the protests stand for?
When we looked at the protesters, we realized that their demonstrations were not just about the gang rape. They were looking for a kind of liberation. It was like one of the first congregations in South Africa for the freedom struggle.
Many of the protesters were boys, holding the hands of women. We wondered, is it just that they’re feeling the pain of the girls, that they want to show sympathy or commiseration? We realized that they also want to be liberated from outdated, paternalistic, patriarchal structures which deny freedom. It was a call to individual freedom. They wanted freedom of choice: in marriage, in sexual orientation, in decision making.
There is also a sociological interpretation of the protests, which should be the most disturbing for the government. And that is, there is a complete distrust of the state. And the state did not help itself by lathi charging these people.
As a constitutional symbolist, I want to say that the mindset of people in power has simply got to change. They have to walk out of it, drop their old mindset and embrace a new mindset of humility, engagement, knowledge and perseverance.
Do you think the Indian state has lost touch with its people?
There is certainly a disconnect between the state and its people. If our public hearings showed us anything, it was that there is a huge disconnect. And unless the government takes seriously corrective steps to remove this alienation, it could unleash social forces of a different kind.
You see, corrections don’t take place in one generation; advances don’t take place in one generation. It takes some amount of perseverance. And somewhere, I feel, the state has stopped that perseverance towards the poor.
If you noticed, the most important cry of the youth was: Please be a good state, please be a caring state. You’re being heartless, you are not able to feel pain.
Women’s rights activists have said that the biggest achievement of the report is that it looks at sexual violence not just through the lens of criminal law, but also through the lens of constitutional and human rights. Why does this make such a big difference?
The government is a public functionary, a public institution meant for public good. In other words, the government is supposed to be the one who corrects asymmetry of power. Now, when a government is told repeatedly that there is asymmetry of power and doesn’t correct it, its constitutional obligation is violated.
In India, there is a lack of state focus on women, in terms of allocation of resources, in relation to the state’s inability to enthuse teaching of female children, its inability to curb female feticide. They haven’t lifted the women up.
We wanted to make sure this imbalance is corrected. That’s why we said that a crime against a woman is not just an offense under the penal code, it’s a mindset that looks at women as an object. It’s as if a man has the right to commit atrocities against women.
In India, crimes against women are closely associated with the notions of honor and shame. How is this bias inherent in our legal and judicial system, and how do your recommendations seek to change that?
That mindset is based upon the belief that a woman is the underdog, that a woman needs to be given protection, that when there is rape, she will be put to shame and become an object of dishonor.
In our report, we have referred to judgments which reinforce the theory of shame. We have disagreed with them and said: Sorry, we are now going to do the reverse, we’re going to say, “Shame on society.”
We’re also moving away from this idea of protection. Every minister says women need protection, they need to be secure. This is completely a misconceived discourse. Protection is inherent in rights. If you give rights, the protection will come automatically.
We have tried to snap the shame honor syndrome by entreating women to believe that rape is just an event and you need to move forward with your life. So we have recommended reparation, rehabilitation, psychotherapy; we’ve changed the medical protocol; we have made it compulsory for a victim to have legal assistance; we’ve said the victim’s lawyer can argue.
In other words, we have attempted to enhance the position of the victim herself. She should be ready to come out and complain.
You have defined a host of new offenses like stalking, voyeurism, and disrobing a woman, many of which were adopted by the government this weekend. Why did you feel the need to create individual, and explicitly worded, crimes?
The purpose is that we wanted to send a message that nobody can fiddle around with a girl walking on the street. Do you know, a large number of girls in rural India drop out of school because of eve teasing or because of stalking?
What was the committee’s thinking on marital rape?
We looked at England, which has done away with the exemption for marital rape. Australia too has done that. In Canada, there is a brilliant judgment that says that if there is lack of consent, it doesn’t matter if it’s a husband-and-wife relationship.
We must understand that marriage presents no more than a framework. From a personal subjective level, marriage is an institution, something tremendously solemn. But from the standpoint of consent to touching, feeling or interacting, it’s only a framework. And that framework doesn’t validate aggression or compulsion on a person. Even in marriage, there are boundaries of consent.
In India, reports come and go. How optimistic are you that this will be acted on?
I have a feeling that the government may surprise us this time. That they may go a long, long way in accepting the idea of the individual autonomy of women. As you know, we received an extremely appreciative letter from the prime minister, who has promised implementation of the recommendations. This is a turning point, that the prime minister says, “I will implement the recommendations.”
The report is clearly progressive and far reaching. But some would say it is utopian.
It’s not utopian. Every bit in this report can be achieved. It just needs the will power of the state. Let’s take the suggestion for creation of secure spaces for women. If you were to do an audit of public building that are lying vacant, you will find that a lot of places can be done up and made safe and secure places where women can live.
Some will argue that we don’t have the resources for this kind of social spending.
I’m afraid I don’t buy that argument at all. When corruption is very firmly established in governance, it is very difficult to know what is the paucity of resources. The money which should have been spent for building schools and colleges, where has it gone? You just need to make one visit to the Delhi University to know that its buildings are about to fall down.
I ask you to use a simple experiment: take any state, calculate the amount of resources given to that state by the first to the twelfth planning commissions, total up that figure, and go to that state. Do they have anything to account for it? How much of money has been given. Where does it go? We’re just enacting laws in a very insincere way.
So yes, if the recommendations of this report have to be implemented, there will have to be substantial social spending by the state on women and children and public care. And I think it is warranted.
India already has several laws dealing with crimes against women, but the problem seems to be the lack of political and bureaucratic will to implement, isn’t it?
The problem is a lack of credible law enforcement agencies. Agencies which are not agencies of political masters, but agencies which consist of people with self pride. Police are servants of the law, they are not servants of men. And we have made police and our forces servants of men.
The policeman in India is today a diminished person. We’ve talked about rape of women, we’ve forgotten that the policeman have been raped of their honor. You must see how they value their own jobs. Do they live lives of self esteem? We did interviews with policemen. They are miserable. Why? They don’t have an idol.
There are some jobs where the inspiration of a higher person catapults into a systemic outflow. And police is one such force. That transformation is absolutely necessary. Internal reforms are needed. The top man must be a leader. He must be moral.
Why did the committee not reduce the age till when a person is tried as a juvenile to 16 years from the current age of 18?
Our decision was based on psychological studies, neurological studies, and above all, the cognitive ability of a person in the Indian society, given his background, lack of education, lack of opportunity, lack of parenting, lack of affirmative messages, lack of nutrition.
I don’t think we can just wish away what we’ve not done for them, and at that stage suddenly say, chop his head off at 16. I think that’s unjust.
Let’s take a full-blooded male in the U.S., Finland or Germany. His brain in still developing till 18. Now, look at these people. What have we done for them?
(The interview has been lightly edited and condensed.)
India Ink: A Conversation With: Former Solicitor General Gopal Subramanium
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India Ink: A Conversation With: Former Solicitor General Gopal Subramanium
