Tuesday, March 12, 2013

BackgroundOn December 23, 2012 a three member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.  The other members on the Committee were Justice Leila Seth, former judge of the High Court and Gopal Subramanium, former Solicitor General of India. 

The Committee submitted its report on January 23, 2013.  It made recommendations on laws related to Rape, Sexual Harassment, Trafficking, Child Sexual Abuse, Medical Examination Of Victims, Police, Electoral And Educational Reforms

Rape: The Committee recommended that the GRADATION OF SEXUAL OFFENCES should be retained in the Indian Penal Code, 1860 (IPC). 

The Committee was of the view that
rape and sexual assault are not merely crimes of passion but an expression of power.  Rape should be retained as a separate offence and it should not be limited to penetration of the vagina, mouth or anus.  Any non-consensual penetration of a sexual nature should be included in the definition of rape. 

The IPC differentiates between rape within marriage and outside marriage.  Under the IPC
sexual intercourse without consent is prohibited.  However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife.  The Committee recommended that the exception to marital rape should be removed.  Marriage should not be considered as an irrevocable consent to sexual acts.  Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant. 

Sexual assault:  Currently, “assault or use of criminal force to a woman with the intent to outrage her modesty” is punishable under Section 354 of the IPC with 2 years imprisonment.  The term outraging the modesty of a woman is not defined in the IPC.  Thus, where penetration cannot be proved, the offence is categorized as defined under Section 354 of the IPC.

The Committee recommended that
non-penetrative forms of sexual contact should be regarded as sexual assault.  The offence of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature.  The sexual nature of an act should be determined on the basis of the circumstances.  Sexual gratification as a motive for the act should not be prerequisite for proving the offence.  The offence should be punishable with 5 years of imprisonment, or fine, or both.

Use of criminal force to disrobe a woman should be punishable with 3 to 7 years of imprisonment.

Verbal sexual assault: At present, use of words or gestures to “insult a woman’s modesty” is punishable with 1 year of imprisonment or fine or both under Section 509 of the IPC.  This section should be repealed.  The Committee has suggested that use of words, acts or gestures that create an unwelcome threat of a sexual nature should be termed as sexual assault and be punishable for 1 year imprisonment or fine or both.   

Sexual harassment: Some of the key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 that is pending in Parliament are provided below:

  • Domestic workers should be included within the purview of the Bill. 
  • Under the Bill the complainant and the respondent are first required to attempt conciliation.  This is contrary to the Supreme Court judgment in Vishakha vs. State of Rajasthan which aimed to secure a safe workplace to women. 
  • The employer should pay compensation to the woman who has suffered sexual harassment.
  • The Bill requires the employer to institute an internal complaints committee to which complaints must be filed.  Such an internal committee defeats the purpose of the Bill and instead, there should be an Employment Tribunal to receive and adjudicate all complaints.
Acid attack:  The Committee opined that the offence should not be clubbed under the provisions of grievous hurt which is punishable with 7 years imprisonment under the IPC. It noted that the offence was addressed in the Criminal Laws Amendment Bill, 2012 which is currently pending in Parliament.  The Bill prescribes a punishment of imprisonment for 10 years or life.  It recommended that the central and state government create a corpus to compensate victims of crimes against women. 

Offences against women in conflict areas:  The continuance of Armed Forces (Special Powers) Act (AFSPA) in conflict areas needs to be revisited.  At present, the AFSPA requires a sanction by the central government for initiating prosecution against armed forces personnel.  The Committee has recommended that the requirement of sanction for prosecution of armed forces personnel should be specifically excluded when a sexual offence is alleged.  Complainants of sexual violence must be afforded witness protection.  Special commissioners should be appointed in conflict areas to monitor and prosecute for sexual offences.  Training of armed personnel should be reoriented to emphasise strict observance of orders in this regard by armed personnel.

Trafficking:  The Committee noted that the Immoral Trafficking Prevention Act, 1956 did not define trafficking comprehensively since it only criminalized trafficking for the purpose of prostitution.  It recommended that the provisions of the IPC on slavery be amended to criminalise trafficking by threat, force or inducement.  It also recommended criminalising employment of a trafficked person.  The juvenile and women protective homes should be placed under the legal guardianship of High Courts and steps should be taken to reintegrate the victims into society.

Child sexual abuse: The Committee has recommended that the terms ‘harm’ and ‘health’ be defined under the Juvenile Justice Act, 2000 to include mental and physical harm and health, respectively, of the juvenile.          

Punishment for crimes against women: The Committee rejected the proposal for chemical castration as it fails to treat the social foundations of rape.  It opined that death penalty should not be awarded for the offence of rape as there was considerable evidence that death penalty was not a deterrence to serious crimes.  It recommended life imprisonment for rape.

Medical examination of a rape victim: The Committee has recommended the discontinuation of the two-finger test which is conducted to determine the laxity of the vaginal muscles.  The Supreme Court has through various judgments held that the two-finger test must not be conducted and that the previous sexual experience of the victim should not be relied upon for determining the consent or quality of consent given by the victim.     

Police reforms: The Committee has recommended certain steps to reform the police.  These include establishment of State Security Commissions to ensure that state governments do not exercise influence on the state police.  Such Commissions should be headed by the Chief Minister or the Home Minister of the state.  The Commission would lay down broad policy guidelines so that the Police Acts according to the law.  A Police Establishment Board should be established to decide all transfers, postings and promotions of officers.  Director General of Police and Inspector General of Police should have a minimum tenure of 2 years. 

Reforms in management of cases related to crime against women: 

  • A Rape Crisis Cell should be set up.  The Cell should be immediately notified when an FIR in relation to sexual assault is made.  The Cell must provide legal assistance to the victim. 
  • All police stations should have CCTVs at the entrance and in the questioning room. 
  • A complainant should be able to file FIRs online. 
  • Police officers should be duty bound to assist victims of sexual offences irrespective of the crime’s jurisdiction. 
  • Members of the public who help the victims should not be treated as wrong doers. 
  • The police should be trained to deal with sexual offences appropriately.
  • Number of police personnel should be increased.  Community policing should be developed by providing training to volunteers.

Electoral reformsThe Committee recommended the amendment of the Representation of People Act, 1951.  Currently, the Act provides for disqualification of candidates for crimes related to terrorism, untouchability, secularism, fairness of elections, sati and dowry.  The Committee was of the opinion that filing of charge sheet and cognizance by the Court was sufficient for disqualification of a candidate under the Act.  It further recommended that candidates should be disqualified for committing sexual offences. 

Education reforms:  The Committee has recommended that children’s experiences should not be gendered.  It has recommended that sexuality education should be imparted to children.  Adult literacy programs are necessary for gender empowerment.

‘The Verma Panel Report Is A Blueprint For Transforming Society. It Is A Blueprint For Equality’...good read 

AS A MEMBER of the Justice JS Verma Committee, former solicitor general Gopal Subramaniamworked non-stop with his colleagues, including Justice Leila Seth, to bring out a landmark report on combating sexual violence against women in India. The committee, appointed by the Union home ministry after the infamous Delhi bus gangrape that led to the death of a 23-year-old girl, scanned over 70,000 suggestions from across the country, before publishing its 600-page report in a record 29 days. In an exclusive interview Subramaniam explains how the committee arrived at its recommendations, and why the State alone is not responsible for the rise in crimes.

Most people have called the Justice JS Verma report pathbreaking. What about the government?
The prime minister has written to Justice Verma, Justice Leila Seth and me, thanking us for our hard work and for presenting the report in a remarkably swift timeframe. From the unmistakable terms in the PM’s letter, it is clear that the government is serious about implementing our recommendations.
Several Bills are pending in Parliament, but none defined sexuality as progressively earlier. How important was it to put it down on paper?
When people talk about sexuality, they often confuse it with gender. Sexuality is more than that; it involves the entire gamut of behaviour, feelings and emotions. Many of our conscious decisions are dictated by our gender. We could see that a clarification had to be made. Hearing the experiences of people from the transgender and transsexual communities, we understood the kind of stigma they are living with. That is a violation of their human rights. The Constitution guarantees due respect for an individual’s sexual orientation — equal protection of the law implies that too. Patriarchal societies stereotype both masculinity and femininity — it’s always body-centric, not centred on sexuality. I see sexuality as the way in which a human being fulfills himself, not necessarily through sex, but through art, music or anything else that appeals to him. Scholars agree that no individual has traits limited solely to his own gender. Also, there should not be any moral judgement on sexuality because it is an evolutionary choice for the individual’s survival.
That brings us to the Bill of Rights. You’ve said that even though the Constitution gives equal rights to all genders and all forms of sexuality, there is a need to state the obvious separately. Why do we need the Bill?
The need to state the obvious arises because it is one thing to have a Constitution, quite another to apply it in society. We don’t mind violating the Constitution in various ways; cultural prejudices often overrule our respect for human beings. We wanted to explain that rape is not just an offence against bodily integrity. The offence germinates in the way you look at women. There is a certain opacity in us, which causes a cross-section of people to fear being perceived in a certain way. We wanted to look at a framework that enables a woman to define herself beyond patriarchy. Sometimes constitutional values, if correctly translated, can perform a kind of therapeutic intervention at the social and cultural level. That is what our report attempts. Even women politicians talk about protection, but rarely about rights. We wanted to say protection is included within rights.
In the report, you have stuck to the age of adulthood as 18 years. But in cases where grievous harm has been done, will there be flexibility to make an exception?
There can be no exception in defining age. We went into this question scientifically and not on the basis of public opinion. We said, let’s not look at a 16- year-old Indian boy. Let’s look at a standard adult male from a normal background, with normal education, and see what his mental condition is. We found scientific evidence of neurological changes that occur between 16 and 18 years of age; the ego state usually crystallises at 18. Some people have faced traumatic events at childhood. I lost my father at 12, so my ability to take decisions grew stronger at 20. We realised that the normal age of adulthood is about 18. Then, we looked at Indian boys, not from the elites, and tried to see if they have got the best that society has to offer. The ability to judge does not come naturally. It is a skill that has to be taught by peers at school. Then you find poverty, lack of nutrition and direction — situations in which the adult ego state, which processes value systems, is missing. Few people know that lack of direction can cause depression. Have we as a society done our best for the less privileged so we can say everybody deserves a fair chance and the age of adulthood should be reduced to 16? On the contrary, we are breeding highly distorted young individuals in so-called juvenile homes and protection homes. They are already poor, away from their families, and not even free to take responsible decisions.
In the excerpt and testimony at the back of our report, there’s a moving account of a young girl, who had studied till Class VI and said she didn’t know if she’d get an opportunity to study again. When we said we would help her become a rocket scientist or a mathematician, she quietly said she always loved studies. We were so moved that the committee has undertaken it as an atonement of society towards its underprivileged. We had to reintegrate her with her family, whom she had not seen for five years. Her family had been told she was dead. We requested a psychiatrist to give her therapy so that her wounds are healed and her aptitude tested. We were just trying to say that the society has a major duty towards its underprivileged.
There are two alternatives before the society. One, legally speaking, is the obligation of the State. On account of massive corruption and misuse of funds, the State has failed to alleviate the poor. It has even failed to establish decent primary schools despite the Right to Education Act.
Two, what happens when the State doesn’t do its job? The alternative, according to me, is not a few NGOs and committed individuals, but a conscious society beyond the State, which starts adopting and looking after the underprivileged as part of its system. This is the only way rape and violence against women can disappear.
There is another side to the question regarding juveniles who have committed acts of grievous violence. Since the report has acknowledged that the State has failed to do its job, in the interim, what recourse should we expect for the juveniles who are not looked after and are an imminent threat to themselves and the people around them?
Justice Verma has forwarded a copy of this report to the Supreme Court for taking action from the judicial side. It is necessary, according to me, not just to have protection homes. What is important is to have qualified personnel able to detect characteristics of violence. Let me talk about gangrape in a shelter home. This will not happen if the trends are visible to an assertive worker or a psychologist who can detect it at first sight. There are many such workers in India. I strongly urge the government of India to draw from such people around the world. We have a very large population of youth and they need course correction, and it cannot happen with the ratio that exists now of a counsellor per 100 children. It is just not possible.
We need a little more interaction, a little more imagination. In cases of violence, I agree, that you might not have any option except to take them away for the safety of other children. We have stressed it in our interim measures that the court becomes the legal guardian and actually takes decisions. If the court becomes the guardian, then cases of sexual assault by caretakers would go down. The police would be on guard, and a good police officer would be able to deal with the issue in a proper way. But even judges would have to be sensitive.
When you talk about conflict areas, the other point that is being debated is AFSPA. Rape cannot be committed in the line of duty; so why should exceptions be made? Is this the one recommendation, you think, that is least likely to be accepted even though you have got a letter of assurance?
I think it might be accepted, for the simple reason that the CM of Jammu & Kashmir has welcomed it. We must not forget that assault on and subjugation of women is a common tactic in fighting insurgency. We have heartrending accounts that make it seem like we are at war with our people. Civil society everywhere, from Kashmir to Chhattisgarh, is saying there’s an alternative; people are saying, give us a chance. If one woman is wrongly dealt with, it does not just impact her, but the whole community. It is an assault on the collective consciousness. That is why we decided to go across and say this should be withdrawn. Many people are saying that the army is feeling let down, but it is not about the army at all. We are not talking about the armed forces. I personally think their ability to combat, to undertake military operations, has been severely compromised by asking them to do duties of a very different kind.
If you need to have a cadre, a dedicated lot, you must have a different kind of administrative service. In my view, a secretarylevel officer should not work in the headquarters. He should work in the villages. The younger ones can work in metropolitan towns. In areas of vulnerability, you require people with sensitivity and wisdom.
Many people are happy that the report hasn’t fallen for the clamour demanding death penalty for rapists. You said the committee did think of it as an option, but decided it was not the way to go…
It is not the way to go. It is there in the report.
Would you call the report a blueprint for smashing patriarchy?
I would say that this is a blueprint for the transformation of the society, including, of course, patriarchy. This is a blueprint for equality.


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