Justice J S Verma committee submits report on rape laws

IANS Jan 23, 2013, 03.33PM IST

NEW DELHI: The Justice J S Verma committee, set up to suggest ways to make rape laws stronger in the country, submitted its report on Wednesday. The committee was set in the wake of the gruesome gang rape of a trainee physiotherapist in Delhi last month.

Speaking to reporters later, Justice Verma said he was impressed by the "spontaneous" response of the youth against the December 16 gang rape.

He said it was a "stupendous task" of compiling the report in one month's time and they got response from organisations and students around the world.

"This is just the beginning of the change," he said, adding that he hopes the report will be taken up "seriously" in the coming parliament session.

"Many recommendations made in the past for women have not been implemented. We have perfect laws but they remain ineffective," he added.

He also said that the first step is to stop eve-teasing or sexual harassment and stalking from society.

"It is a serious matter... these practices are tolerated by the society. We need to first deal with the first step as it graduates to sexual assault," he told reporters.

He said he was "struck by the peaceful manner" in which the youth rose to protest the brutal attack on the 23-year-old woman, who was brutally gang-raped in a moving bus. The woman, along with her friend, was later thrown out of the bus - bloodied and without clothes in the cold December night. She died 13 days later in a Singapore hospital.

"It was a spontaneous show of the youth. It was an humbling experience... the youth taught us, the older generation. This is the real hope and the brightest aspect of this entire exercise," said justice Verma, a former chief justice of India and ex-chairman of the National Human Rights Commission.


Thu, 24 Jan 2013 08:30:00 GMT | By ANI

Women's rights activists, politicians laud Justice Verma Committee report

Mamta Sharma, Chairperson of the National Commission for Women (NCW), expressed hope that the recommendations would usher a positive change if implemented

New Delhi: Several women's rights activists and political leaders, particularly from the Congress Party, hailed the recommendations of the Committee headed by Justice JS Verma to review prevailing laws against sexual crimes.

Mamta Sharma, Chairperson of the National Commission for Women (NCW), expressed hope that the recommendations would usher a positive change if implemented. "If the provisions of the report are implemented, it will definitely be effective. But, these things require political will. Only then can women feel safe," aid Sharma.

However, she said that it was unfortunate that the police chiefs of various states had not sent in their recommendations in spite of the invitations extended to them by the committee. Krishna Tirath, Union Minister for Women and Child Development, said: "As far as implementation is concerned, community participation is necessary to uproot a social evil, where NGOs should also be involved. I have a scheme where girls will be empowered with special training."

"However, there is a need to change the mindset of men and boys, and to that end we will be coming out with an action-plan very soon," she added.

She also noted that as far as the national capital was concerned, its police force would be reinforced with women being added to its strength.

Praising the committee report, women's rights activist Ranjana Kumari said that now the people will have to pressurise the government to implement it. "Even he (Justice Verma) is not sure that the government will take action on basis of their recommendations. The suggestion regarding a comprehensive law is one of the most important point. I don't know the government will take it seriously or not," she said.

Earlier in the day, the three-member committee headed by former Chief Justice of India, JS Verma, comprising former Solicitor General of India Gopal Subramanian and Justice (Retired.) Leila Seth, former Chief Justice of Himachal Pradesh High Court, submitted its report to the Home Ministry.

The nation-wide movement demanding amendment of the laws regarding crimes against women in the wake of the brutal gang rape and death of a 23-year-old woman in New Delhi on December 16, forced the Government constitute the committee.

The gang raped woman died of her injuries on December 29, 2012 in the multi-specialty Mount Elizabeth Hospital in Singapore.

The committee had earlier issued a notice seeking suggestions from the public in general, particularly eminent jurists, legal professionals, NGOs, women's groups and civil society members in a bid to provide quicker justice and stringent punishment for crimes against women.


Editorial

January 26, 2013 The Hindu

A manifesto for change

In 1979, the Supreme Court of India described an act of rape as a "randy molestation," before going on to lament "societal permissiveness on the carnal front," evinced in its view by "libidinous brahmacharis" and "lascivious dating and mating by unwed students." Former Chief Justice of India J.S. Verma, former Supreme Court judge Leila Seth, and eminent lawyer Gopal Subramaniam have, this week, helped blow away the toxic shadow that words like these cast over debates on sexual violence in India. Formed in the wake of the gang rape of a Delhi woman last year, their committee has produced a text that will long be invoked in debates over criminal justice in India. Few of their 22 recommendations - on everything from the promulgation of long-pending criminal law amendments to police reform and even street lighting - are in themselves new. However, the report founds itself on the Constitution's promise of equality and justice for all, bringing the rights of women to the centre-stage of our national project. Not all will back each of the committee's proposals. For example, the committee's proposal to disqualify politicians facing certain kinds of criminal cases from standing for election even prior to conviction is controversial. The idea has been resisted by all major parties since 1998. Yet, the foundations have been laid for a forward-looking debate - and meaningful action.

Even as we celebrate this progress, therefore, it is also important to cast an eye on how much work remains ahead. Like all manifestos for change, the report paints in broad strokes - strokes that will need careful filling-in to become a blueprint for real change. Police reform, for example, is key to its thrust. Yet, the report does not tell us precisely what kinds of laws are needed to bring about autonomous - and perhaps even more important, competent - policing. Elsewhere, its recommendations can be accused of a degree of naiveté. It would indeed be a step forward, for example, if all marriages were to be "registered in the presence of a magistrate." Yet, it is hard to see how a "magistrate will ensure that the marriage has been solemnised without any demand for dowry." Perhaps most challenging will be giving teeth to recommendations that involve profound social change. It is also true that our society needs children to be "informed and equipped with the knowledge and skills to make responsible decisions about sexuality." The real problem, though, is we have a society without a responsible idea of either sexuality or equality. India's recent history is, sadly, littered with exhortations for change which went nowhere. It will take sustained citizen mobilisation to ensure the committee's work amounts to more than words on paper.


January 25, 2013  The Hindu

A moment of triumph for women

Kalpana Kannabiran

The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape

Starting with Tarabai Shinde's spirited defence of the honour of her sister countrywomen in 1882, women's movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle.

A transformation

At a time when despair and anger at the futility of hundreds of thousands of women's lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand women's subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in "women's studies" libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense?

The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph - the triumph of women's movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory.

Rather than confining itself to criminal law relating to rape and sexual assault, the committee has comprehensively set out the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.

If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction.

The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape - with comprehensive reforms suggested in electoral laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958, and the provision of safe spaces for women and children.

Arguing that "cultural prejudices must yield to constitutional principles of equality, empathy and respect" (p.55), the committee, in a reiteration of the Naaz Foundation judgment, brings sexual orientation firmly within the meaning of "sex" in Article 15, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation - and the right of all persons, not just women, against sexual assault.

Reviewing leading cases and echoing the critique of Indian women's groups and feminist legal scholars - whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and in khap panchayats, the committee observes: "...women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them."

In terms of the definition of rape, the committee recommends retaining a redefined offence of "rape" within a larger section on "sexual assault" in order to retain the focus on women's right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women's right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard.

Voices from conflict zones

Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence have for decades been demanding that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors be brought within the meaning of aggravated sexual assault. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). Specifically, the committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the requirement of prior sanction where the person has been accused of sexual assault.

Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on?

The Delhi case

The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum. On the death penalty, the committee has adopted the abolitionist position, in keeping with international standards of human rights, and rejected castration as an option. The second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, women's groups and child rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, comprehensive institutional reform in children's institutions.

The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential - as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email: kalpana.kannabiran@gmail.com)


January 27, 2013  The Hindu

‘The government has to choose between politics and the Constitution'

Sandeep Joshi


Gopal Subramaniam: "When you have the death sentence, there could be arbitrary sentencing. That is why we went to the second highest [jail for the entire natural life]."

Gopal Subramanium, former Solicitor-General of India, a member of the Justice J.S. Verma-led Committee that was constituted last month in the aftermath of the gang rape and murder of a young student in the national capital, to recommend amendments to laws relating to offences against women, speaks to Sandeep Joshi on how it went about its tasks, the rationale behind some of its key recommendations and its expectations of the outcome.

What challenges did the Committee face?

When we started, we thought we were only going to deal with laws related to criminal offences... But we slowly saw that this involved the issue of successful prosecution, investigation and ... bringing people to book.

So it took us to the second chapter: why is it that there is certain kind of apathy in relation to crimes against women? That led us to the question: how do we view this offence in relation to women; is it just simply a criminal offence?

We found that it [rape] is a gender-targeted offence - and that's the most important point. And if it is because a person is a woman, then there is a certain degree of constitutional protection which is also violated. So we wanted this to be treated on [the basis of] constitutional principles. That is how we first began with the constitutional theory of equality.

Then we have to view this in the light of our patriarchal society. We have to see existing trends in our society - where the sex ratio is skewed. We have to take into account female foeticide. We have to take into account negative messages that young girls... get early in their life, sometimes in the rural areas: Oh my god, you're born! How the boy is treated as superior to the girl. And the process of socialisation of schools being very difficult for girls. There are any number of handicaps through which they have to progress in life. All these lead to a cultural asymmetric...this needs to be corrected.

And this is important as a part of a preventive culture, so that you don't need to have rapes. And to lead to that position was also within the domain of our [terms of] reference. So we treated the subject from a manifold point of view. From the point of view of teaching children, of removing stereotypes of masculinity in the mind to enable even men to feel compassionate, caring.

We're moving towards a new India which needs to be liberated... transparent, which needs security.

What are they [youth] asking for? What are the women asking for? They're asking for a simple translation of their constitutional guarantees in real life - which is that they must have security of person and space. That, I think, is a constitutional obligation of the state. So we decided to devise a method by which this could be ensured.

Public sentiment was in favour of death for rape. Even the government suggested it would consider capital punishment in the rarest of the rare cases. But the Committee did not recommend that.

The question is that if you have a rape followed by murder, the death sentence is available, [under Section] 302 [of the Indian Penal Code]. But [a person convicted under] 376 going straight to death sentence is very different. We did debate this closely, and we came to the conclusion that there should be no politics of reprisal... when we actually alter punishments.

Women's organisations were content with life [sentence] with remissions - that is, 14 years. They did not ask for enhancement. We're the ones who said: no, we have to go somewhere further to make it more deterrent... But we stopped short of death.

Women said we cannot disown the fact that even the victim is a part of society, and so is the accused... They showed far-sightedness and maturity in recommending to us this course.

Another point is that when you have the death sentence there could be arbitrary sentencing. That is why we went to the second highest [jail for the entire natural life].

The Committee recommended a review of the Armed Forces (Special Powers) Act. Do you think the government will touch this sensitive issue?

It's not a sensitive issue at all. The armed forces are highly respected. But we're not talking of the armed forces in general; we're talking of some individuals who commit crimes of rape. Why should not they be held accountable? I don't think this is any reflection on the armed forces.

More importantly, it is [about] the culture of militarisation. When armed [forces] personnel commit rape, it is a culture of militarisation. Rape is one of the techniques in militarisation, and you should not practise militarisation with your own people, it's terrible.

The Committee has talked about diktats of khap panchayats and religious leaders and their anti-women sermons, and said the government does not touch them due to political reasons. How is this affecting society?

The government has to choose between politics and the Constitution. The Constitution means the people of India. This is the message the Committee wants to give.

You want to play politics, but remember, politics is not about defeating the Constitution and hoodwinking the Constitution. Politics is [meant] to be compliant with the Constitution and to care for people. If you don't want to care for your people, then what kind of care are you showing? When a young man and woman fall in love and want to get married, they're so brutally treated by these institutions.

The Committee has touched upon the issues of stalking and ‘eve-teasing' in a strong manner, and recommended that these be made punishable offences.

We've come to know how our women in rural areas drop out of schools and colleges because of stalking... and how much harassment they undergo. There are so many things which are not reported in our society. Young girls commit suicide because of stalking. So we have to make a law.

We have enough rules and laws, the problem lies in implementation. How do we address this?

We seek psychological transformation from political institutions, from the police, from civil society. This psychological transformation is possible. There have been iconic police officers... a constable was an honest man just because he saw the top man was honest. You need to have heroes in the services.

We've to create a culture of recognising honesty. The recognition of honesty by the government must be the most fundamental value of governance in accordance with the Constitution. We must understand this truth. Honesty is the bedrock of civilisation.

Among your recommendations, which are the ones that should be implemented immediately?

The criminal law amendment bill and the suggestions we have made should be done immediately. There should be no immunity to police officers or army officers in cases related to rape. [There should be] zero tolerance for offences relating to trafficking.

The Committee was not very appreciative of the response of the government and the police departments to it...

DGPs and others did not make available information because nobody [thought] this Committee [would] dig deep... to find a solution. So, even the expectation of the government itself of such a committee is that it will act like some sort of a whitewash committee.... They shouldn't have thought this committee is simply a whitewash or will not go deep...

There have been various reports and recommendations from committees and commissions on police reforms, safety and security of citizens, legal and electoral reforms. Do you think the government will implement your recommendations?

This report talks of the anger of India... we've taken into account a certain measure of public opinion. If the government decides to ignore the recommendations... we have cautioned them they'd be doing so at their own risk.

Speaking for myself, the government will respect this report. We've put the report in the public domain. We welcome criticism. We've touched new ground, we've made far-reaching changes. It's perfect to criticise in a democracy, but we made our best effort.


January 27, 2013  The Hindu

Hey man, change your mindset

G. Chamki Raj

We, as a society, need to fight the decadent, patriarchal culture that considers women merely instruments of reproduction.

Violence against half the population of the largest democracy is touching new heights, shaming the entire society. The recent horrific incident of rape in Delhi is not an isolated one. The National Crime Records Bureau (NCRB) says rape is the biggest crime in India with 24,206 cases registered in 2011 (22,172 in 2010). The dismal conviction rate at a mere 26 per cent between 2008 and 2011 explains the increase in rape cases. According to the NCRB, approximately 10 per cent of rape victims are below 14 years, 15 per cent are between 16 and 18 and 57 per cent are between 18 and 30.

The Constitution guarantees to all women equality, prohibition of discrimination by the state, equality of opportunity, and equal pay for equal work. It also provides for making special enactments for women and children. It renounces practices derogatory to women's dignity and provides for just and humane conditions of work and maternity benefit. But till date, these guarantees remain a distant dream for Indian women.

Women-specific laws, namely, the Immoral Traffic (Prevention) Act, the Dowry Prohibition Act, the Indecent Representation of Women (Prohibition) Act, the Commission of Sati (Prevention)Act, and the Protection of Women from Domestic Violence Act have not acted as a deterrent.

The Indian Penal Code deals with offences such as rape, kidnapping and abduction, dowry deaths, torture, molestation and sexual harassment. Under the IPC, a man is said to commit rape if the woman is under 16, with or without her consent. Marital rape is only an exception if the wife is under 15.

The Indian Evidence (Amendment) Act, 1983 provided that if a victim of custodial and gang rape states before court that she did not consent, the court shall presume that she did not consent. The Indian Evidence (Amendment) Act, 2002 provided that it is not permissible to question the prosecutrix on the general moral character. The Code of Criminal Procedure (Amendment) Act, 2005 provided for investigation of custodial rape by judicial magistrates. The recommendations of the Law Commission have been incorporated in the Criminal Law Amendment Bill 2010 to bring rape within the meaning of sexual assault.

Despite these laws, despite several women occupying high offices, Indian women continue to face discrimination and violence. Dalit women are doubly oppressed. With sexual harassment, rape, acid throwing, "honour killings," selective abortions, bride burning, and trafficking, India has been adjudged the "fourth most dangerous country in the world for women to live in" by the Thomson Reuters Foundation Survey in 2011.

Offences against women are acts of aggression to establish that they are secondary citizens. This patriarchal culture confines a woman's role to the family for the sake of reproduction and for accumulation of wealth, negating her contribution to the nation's GDP. Marriage is considered the ultimate in her life. However, the need to pay dowry makes a daughter a burden, leading to sex-selective abortions and female foeticides.

The Hindu Marriage Act prescribes the age of marriage for a girl as 18 but it does not say that the marriage of a girl below 18 is either void or voidable. A woman has no right to decide her partner and those who break this rule are murdered and it is called "honour killing!"

Domestic violence is accepted meekly by most women who have no alternative. Single/divorced women are considered ‘available'. The UNICEF Report 2012 says that 57 per cent of Indian boys and 53 per cent of girls between 15 and 19 years think wife-beating is justified. The UNDP Human Development Report 2011 says India ranks 129 out of 146 countries in the Gender Equality Index, behind Bangladesh (112) and Pakistan (115).

Given this scenario, it is not surprising that rape is the biggest crime where the victim is blamed for ‘inviting'. She is often compelled to compromise by marrying the rapist. A 17-year-old girl who was gang-raped in November 2012 in Patiala killed herself on December 26 as the police, without registering her complaint, pressured her to marry one of the accused. The family often prefers not to complain of rape as prospects of marriage are considered all important. The honour of the family is more important than the honour of a woman in the family!

The neo-liberal policies of successive Indian governments are aimed at maximising private profits by reducing real wages, reducing public investment in welfare and commercialising education and healthcare. Permanent employment is transformed into part-time and casual employment, mostly filled up with women. According to the ILO, women are paid only 62 per cent of the salary of their male counterparts.

The present political system facilitates sexual objectification of women in the media. Politicians make light of rape, saying skirts should be banned. In a 1996 survey of judges in India, 68 per cent said provocative clothing is an invitation to rape. A khap panchayat in Baghpat recently barred women below 40 years from using mobile phones and from shopping. A khap panchayat in Haryana suggested reducing the age of marriage for girls to 16 to prevent incidents of rape. The comments of the RSS chief that rape is an urban phenomenon are, in effect, a clear endorsement of the rape of the poor rural and Adivasi women.

Empowerment of women is an irritant to the mindset of a patriarchal society and hence the increase in violence against women. In such oppressive conditions, the recent spontaneous protests gain significance.

Laws are redundant in the absence of social responsibility towards gender issues and the political will to implement the laws. The rampant corruption in the political system can hardly curb the crime rate. We, as a society, need to fight the decadent, patriarchal culture that considers women merely instruments of reproduction. This perception should change, in consonance with our constitutional guarantees to women because a woman is human.

(The writer is a Chennai-based advocate and treasurer of the All-India Lawyers Union. Email: gcraj@ hotmail.com)


January 28, 2013  The Hindu

Insightful and path-breaking

Brinda Karat


Although it has left some crucial questions unanswered, the Verma Committee report is a big step forward in the struggle for women's rights

The UPA government has perhaps got more than what it bargained for from the committee it set up, headed by the former Chief Justice of the Supreme Court, Justice J.S. Verma, in the wake of the public outrage following the horrific Delhi gang rape. The government had decided on only limited terms of reference for the committee (whose other members were an equally eminent former Supreme Court judge, Justice Leila Seth, and former Solicitor General Gopal Subramaniam) but fortunately the members, in their words, interpreted it "expansively."

Through the over 600 pages of this path-breaking, insightful report, with the marshalling of irrefutable evidence, what emerges is a strong indictment of the governments at the Centre and the States for their criminal callousness in ignoring the earlier recommendations of measures to prevent sexual violence against women. In section after section, the committee quotes reports - from 1980 - of Law Commissions, earlier judgments and directions of the Supreme Court, and notifications and circulars of the Home Ministry, which were never implemented.

Critical of governments

It blasts governments for the lack of accountability of public servants, stressing the importance of making dereliction of duty a punishable offence. In the context of the Centre's refusal to act against Delhi's top police officials, including the Police Commissioner, the committee's proposal is particularly relevant. It also proposes to include the concept of command responsibility in the law, holding superior officers responsible for the acts of their juniors when the circumstances show that the crime could have been prevented had the superior acted.


In fact, the Parliamentary Select Committee headed by the present Union Law Minister set up several years ago to re-examine the flawed official bill against torture discussed this issue in detail and recommended the inclusion of command responsibility. But the committee's recommendations have remained in cold storage. Similarly, the Parliamentary Committee on Women's Empowerment made a strong recommendation to bring the armed forces and the para-military forces under the purview of criminal law, but the aggressive opposition of Defence Service Chiefs was a convenient reason for not accepting it.

The Verma Committee takes this forward by recommending a concrete amendment to the Armed Forces (Special Powers) Act to prevent it from being used as a shield to protect criminals in uniform. Significantly, it suggests the appointment of Special Commissioners in conflict zones to monitor women's security. It is well known how women, in Chhattisgarh and elsewhere, become targets, caught between militants and the security forces.

The recommendations on the state's culpability on a range of issues pinpointed in the report are most welcome but it is not because these recommendations were not made earlier that the situation is as it is, but because of the lack of political will.

The report locates violence against women and children in a broader framework of violation of constitutional guarantees, demolishing self-serving arguments that governments cannot be held responsible for individual acts of violence. At a time when market based ideologies so close to the hearts and minds of those in power promote the government's retreat from its fundamental social responsibilities, the report reminds governments of their primary responsibility to ensure through preventive and deterrent measures a secure environment for its citizens. The report says: "The failure of good governance is the obvious root cause for the current unsafe environment eroding the rule of law..." Indeed the direction of governance in the last decade or so has been dominated by a promotion of corporate led growth, the "unleashing of animal spirits in the economy" with no concern for its impact on increasing social inequalities and subverting the constitutional and fundamental rights of people.

The statistics of increasing violence against women tell their own story. In 2011 alone, there were 24,206 registered cases of rape of which 2,579 were registered in the 89 listed cities. There were as many as 51, 538 cases of sexual harassment of which around 25 per cent took place in cities. Thus a majority of rape and sexual harassment victims are from the rural and mofussil areas, of whom substantial numbers are poorer sections of women and children who live and work in insecure environments. All child rape cases in Haryana in the last few months, for example, occurred because there was no crèche or safe place where the working mother could leave the child.

Vulnerable sections

The changing nature of labour contracts, from permanent workers to casual or contract daily workers, makes women workers, particularly migrant women, vulnerable to the exploitation of employers, landlords, contractors and supervisors. The privatisation of essential services has resulted in a lack of accountability in public transport, lack of electricity, absence of public toilets, all of which are directly related to government policies creating insecurity for women. The report comments "We believe that fundamental rights must not be ignored by the state on a specious argument of paucity of resources when the rich continue to thrive and the wasteful expenditure of public monies is more then evident."

The report also mentions critical issues such as food security and malnutrition. These are welcome as they do take into account the experience of millions of poor women across the country who face sexual harassment on a daily basis arising out of their economic conditions, worsening by the day. It is, therefore, inexplicable that the committee's recommendations for amendments to the criminal laws omit crucial clauses concerning economically and socially exploited women - in other words, the class and caste aspects of sexual violence. For example, the long pending demand to consider sexual crimes on the basis of caste against Dalit and Adivasi women or against women on the basis of communal considerations as aggravated sexual assault, inviting enhanced punishment, is unaddressed.

It is well documented how women face intense insecurity because of dominant caste hostility or communal violence. Further, because of the increasing number of cases of rape by powerful and politically connected men, women's organisations had successfully ensured the inclusion of a clause in the official Bill of amendments to the Criminal Procedure Code introduced in Parliament that when rape is committed by a man "being in a position of economic, social or political dominance," there should be enhanced punishment. But this does not find a place in the committee's recommendations.

In this context, there is an important demand made by rape survivors from economically and socially exploited sections for a comprehensive rehabilitation package. Some have mocked this as compensation for rape. In fact, it is virtually impossible for a rape survivor who belongs to the working class or the rural poor to bear the expenses of the legal process. It is not enough for the state to provide a lawyer. The question of loss of work, of sometimes having to shift residence, of frequent consultations with lawyers and trips to the court, incurring expenses and losing a day's income are critical issues in the decision of whether or not to fight for justice. It is puzzling that the report does not mention a mandatory rehabilitation package or did not review the existing schemes of rehabilitation. The only mention is that the perpetrator should pay for the victim's medical expenses. The victim might find that abhorrent and demeaning and, in any case, what if the accused proves that he has no funds? If the court wishes to fine the accused, there is a legal provision for that and hefty fines can and should be imposed. But it is the state which must take the responsibility for medical expenses and rehabilitation.

Disappointing

One of the most widely supported demands of the nationwide protests was time-bound procedure in cases of rape. Today, a rape victim, including a child, may have to wait even 10 years or more for the judgment. The report recognises the large number of pending cases with courts and calls for an end to frequent adjournments in rape cases. It suggests as a way out recruitment of retired judges, extending the age of retirement of judges at the lower levels and so on. But disappointingly, there is no concrete recommendation regarding a time-bound procedure for cases of rape or the setting up of fast track courts. The three months' time frame suggested by a large number of organisations could have been accepted, as lengthy judicial procedures lead to gross injustice for rape victims.

The committee must be congratulated on its multidimensional report which constitutes a big step forward in the struggle for women's rights. Its recommendations can be converted into longstanding gains if the present struggles are linked to political interventions that force the government to act on them. It cannot be allowed to meet the same fate as the 15-year-old Women's Reservation Bill which remains an ornament to be dusted and displayed before every election.

(Brinda Karat is a member of the Polit Bureau of the Communist Party of India - Marxist.)


January 22, 2013  The Hindu

Going from Zero FIRs to e-FIRs

Aparna Viswanathan

The government must allow the online filing of first information reports in rape cases as that alone will ensure mandatory and automatic registration of complaints

On January 18, 2013, Delhi police chief Neeraj Kumar announced that Zero First Information Reports (FIRs) may be registered on the basis of a woman's statement at any police station irrespective of jurisdiction. This means women can file an FIR at any police station and the complaint is required to be registered on the basis of the woman's complaint verbatim. Mr. Kumar stated: "The woman's statement has to be taken as gospel truth and a probe needs to be initiated on its basis."

Important step forward

At the same time, the Delhi police chief announced a series of other measures such as the recruitment of 418 women sub-inspectors and 2,088 women constables, deployment of PCR vans outside women's colleges, the provision that women can call 100 to seek assistance to be dropped home at night by a PCR van, and 24-hour police cover for areas around entertainment hubs with heightened security between 8 pm and 1 am. While the foregoing measures must certainly be welcomed as an important step forward towards making the criminal justice system functional, it is surprising that e-governance has not been utilised by the Delhi police as an important solution in a country which is considered the world's leading provider of IT enabled solutions.

E-governance is the application of information and communication technology to delivering government services, exchange of information and integration of various stand-alone systems and services between the government and citizens as well as back-office processes within the government. Through e-governance, government services can be provided to citizens in an efficient and transparent manner, which is of desperate need in India.

As shown by the introduction of the Zero FIR, the starting point towards improving criminal justice is the filing of the criminal complaint itself. It is well known that the filing of FIRs, particularly for cognisable offenses, is an extremely difficult exercise - more so for a rape victim who has to ceaselessly recount the horrific event. Police stations often refuse to register FIRs for cognisable complaints, and innumerable rapes around the country go unreported. The victims then are forced to file a private complaint in court under Section 156(3) of the Criminal Procedure Code (CrPC) seeking an order directing the police to register an FIR. The police chief's announcement that the woman's statement will be taken as the "gospel truth" is an important first step that will hopefully enable rape victims to register an FIR.

The police have often taken the view that, under Section 154 of the CrPC, complaints need to be investigated before the FIR is registered because the complaint could be a disguised civil or commercial dispute or a way of settling personal enmity. Complaints of criminal cheating and fraud are sometimes filed as a way of pressuring business associates to settle financial disputes or for personal grudges. However, this is highly unlikely to occur in the case of rape. In fact, there is no reason why all complaints for at least cognisable offences should not be registered as FIRs and then investigated.

While the Supreme Court has, in various judgments, taken contradictory views on the issue of whether the police are required to investigate a complaint before registering an FIR under Section 154 of the CrPC, it has repeatedly expressed its deep anguish over the failure of police to register FIRs, particularly in rape cases. Hopefully, the police will now register an FIR based on the woman's statement as per the recently announced measures. However, the mandatory and automatic registration of FIRs can be ensured only through e-governance, that is, by providing for online registration of FIRs by citizens.

Tracking network

The online registration of FIRs was supposed to be implemented by 2013. On March 21, 2012, the then Union Home Minister, P. Chidambaram, stated in the Rajya Sabha that online registration of FIRs would be possible once the server and network connectivity was established by the end of 2012 or early 2013. However, the online filing of FIRs will be made possible only upon the implementation of the Crime and Criminal Tracking Network and Systems (CCTNS), an ambitious Rs. 2,000 crore project of the Home Ministry, aimed at increasing the efficiency and effectiveness of policing through e-governance by creating a state-of-the-art IT-enabled crime tracking system for investigation of crime and detection of criminals.

Under CCTNS, 14,000 police stations will be automated as well as 6,000 offices of higher police officials. The CCTNS is a platform for sharing real time information by law-enforcement agencies, which will improve identification of criminals and crime investigation. Funds in the amount of Rs. 418 crore have reportedly been released to the States/Union Territories and Rs. 4.54 lakh people have been trained. The CCTNS project was supposed to be completed in March 31, 2012. However, in June 2012, the Cabinet Committee on Economic Affairs (CCEA) extended the deadline to March 2015.

In November 2012, the Home Ministry began monitoring the status of the CCTNS project on a weekly basis and appointed 20 Joint Secretaries to monitor the progress of the project and ensure completion by March 2015. The delay in project implementation was reportedly due to the non-availability of common application software (CAS) and infrastructure problems. Since law and order is a State issue, issues of coordination between the States also contributed to the delay. However, it is unclear why the Indian government needs to implement a Rs.2,000 crore project before enabling online filing of FIRs. In view of the great national imperative in creating deterrence against rape, websites and e-filing mechanisms should be immediately created to permit e-filing of FIRs at least in rape cases.

The online filing of annual accounts and other documents was successfully implemented several years ago by the Ministry of Company Affairs. Various State governments have also provided for online filing of police complaints and online payment of traffic challans. The Himachal Pradesh Police have introduced an interactive portal called "Kanoon Vyavastha," the first of its kind in the country, by which a police complaint can be filed online or by SMS. As per a report in the Financial Express, of 1,821 SMSs received, 22 FIRs were registered without the complainant having to visit the police station. Of these 22 FIRs, reportedly only one was related to a rape case. After the launch of SMS service in May 2010, 4,392 SMSs were received, of which 82 FIRs were registered. The complainant can check the status of the FIR online and post comments. The web portal is used for daily crime reporting, providing details of missing persons and vehicles and road accidents. Jalandhar reportedly has an online crime tip page where people can anonymously inform the police of a crime that has been committed. Similarly, Maharashtra has an e-complaint system for reporting minor crimes, that is, non-cognisable offences.

Simultaneously, with the introduction of Zero FIRs, online filing of FIRs at least in rape cases should immediately be implemented irrespective of the status of the CCTNS project. The introduction of e-FIRs will be an important signal to all criminals that rape will not go unpunished.

(Aparna Viswanathan is author of Cyber Law: Indian and International Perspectives (Lexis Nexis Butterworths Wadhwa 2012))


Ordinance moots death penalty if rape victim dies or slips into coma

By Vishwa Mohan & Pradeep Thakur, TNN | Feb 2, 2013, 01.15 AM IST

NEW DELHI: Shaken by the Nirbhaya case, the government on Friday approved a law prescribing death penalty for cases of rape which lead to the victim's death or her slipping into persistent vegetative state, going beyond the recommendations of the Justice JS Verma committee.

An ordinance cleared by the Union Cabinet seeks to treat rapes resulting in death of the victim or causing her to be in a persistent vegetative state as a crime belonging to the "rarest-of-rare" category for which courts can award death punishment if they so decide. For such cases, the ordinance proposes a minimum sentence of 20 years which can be extended to imprisonment until the natural life of the convict, or death.

The ordinance was rushed through to beat the notification of Parliament's budget session which is due to begin on February 21. The notification would have prevented the issuance of an ordinance.

The ordinance, designed to change the Criminal Law (Amendment) Bill, 2012, and set to be promulgated shortly, has accepted Justice Verma committee's recommendation to treat voyeurism, stalking, disrobing of women and acid attacks as specific offences under the Indian Penal Code. The change will raise "eve-teasing" from being considered a minor offence to a serious crime attracting enhanced punishment.

The panel's recommendation for punishing those who knowingly employ a trafficked person has been accepted, with the government proposing a maximum sentence of five years for the guilty.

It has also accepted the recommendation of the committee, set up in response to the public upsurge over Nirbhaya rape case, to raise the maximum punishment for rape from the existing 10 years to life. For repeat offenders, the life imprisonment will cover his entire life and not just 14 years as is usually the case now.

Government has also embraced the recommendation that rape committed by a "person in authority" - a term that covers public servants and officers of police and Army - be punished by a minimum 10 years of rigorous imprisonment that can be extended to life.

However, it did not agree with the committee led by the retired Chief Justice of India that rape should not be made a gender-neutral crime. Accordingly, the expression "rape" in law is proposed to be replaced by "sexual assault".


10 years in jail for rape by 'person in authority'


Government has also turned down the committee's recommendations for criminalizing marital rape even in cases where the wife is above 16 years of age, and for punishing command officers who may fail to prevent rapes by subordinates.

The issue of whether the age of a juvenile should be reduced will be treated separately when the Juvenile Justice Act is reviewed.

Law minister Ashwini Kumar described the provisions of the ordinance as "path breaking". He said, "The changes proposed will bring in an effective and purposive law to protect the dignity of women."

He also said the ordinance, drafted with a sense of unprecedented urgency, reflected the UPA government's responsiveness to people's heightened sensitivities, as revealed in the aftermath of the Nirbhaya case, towards crime against women. "We have redeemed the pledge that we made," he said.

But women's rights activists were not pleased, and complained of a letdown. They are upset over the government's refusal to recognize marital rape as an offence, failure to hold command officers accountable for rapes by their subordinates and omission of rapes by armed forces as a category.

Sources in the government defended the provisions as bold, and pointed to a number of Justice Verma committee recommendations being accepted completely.

The law minister said the ordinance seeks to change provisions of Criminal Law (Amendment) Bill which is being examined by a parliamentary standing committee in the light of the recommendations of the Justice Verma committee.

The Justice Verma committee's recommendations have been widely welcomed as a new bill of rights for women.


New Delhi, February 2, 2013  The Hindu

‘Ordinance bypasses all vital recommendations of Verma panel'

Staff Reporter

CPI(M) leader Brinda Karat, along with women activists, stages a demonstration demanding speedy justice for rape victims in New Delhi recently. Photo: Shiv Kumar Pushpakar

Opposing the Centre's decision to move an ordinance on criminal law amendments in respect of sexual violence, women's organisations, civil society groups and women's rights activists have appealed to President Pranab Mukherjee "not to sign" it.

Arguing that virtually all suggestions of the Justice Verma Committee, hailed as signs of a paradigm shift in understanding violence against women, and all the recommendations that could strike at the heart of impunity seemed to have been dropped, human rights activist and lawyer Vrinda Grover said on Saturday. "An ordinance like this, implemented by stealth, only serves to weaken our democracy and betrays the trust of the citizens.

"We are alarmed at the complete lack of transparency on the part of the government in proposing an ordinance as an emergency measure. We wonder what objective and purpose will be served by such a hasty, non-transparent measure since the proposed law will not retrospectively apply to the Delhi gang rape case," she said. Addressing a press conference here, women's rights activist Kavita Krishnan said: "The ordinance... goes against the spirit of the Verma Committee's report.

"While the Committee had suggested recognition of marital rape, new provisions on the offence of breach of command responsibility, non-requirement of sanction for prosecuting a member of the security forces accused of sexual assault and rape, and provision for trying them under ordinary criminal law for sexual crimes - none of this seems to have found place in the ordinance," she said.


New Delhi, February 2, 2013  The Hindu

Verma panel recommendations negated: CPI(M)

Aarti Dhar

The All India Democratic Women's Association (AIDWA) too objected to the "selective and arbitrary approach" of the Government to the recommendations.

The Communist Party of India (Marxist) has denounced the ordinance which the Union Cabinet issued on Friday to curb sexual violence against women.

When Parliament was to convene for the budget session in three weeks, the promulgation of the ordinance ran counter to democratic norms, a statement issued by the Polit Bureau said on Saturday.

"The ordinance rejects the Verma Committee's recommendations on issues like making rape a gender-specific crime..., increasing the punishment to public servants for dereliction of duty and increasing the punishment for acid attacks and... compensation for victims, and is highly selective about the other recommendations. The ordinance has thus done injustice to the Verma Committee's report and appears to be a diversion from the serious issues... of state culpability [and] inclusion of armed forces in the ambit of the criminal law with an amendment suggested to it," the statement said.

As for the death penalty, the category of the rarest of rare cases had already been part of the legal framework and would include cases of rape and murder, and this was reiterated by Justice Verma, the party said.

The All India Democratic Women's Association (AIDWA) has condemned the government's "selective and arbitrary" approach to the Verma Committee's recommendations.

"We strongly feel that the UPA-II should have adopted a holistic approach to the... report, rather than a pick-and-choose exercise, thus undermining the efforts of the committee at providing a multi-sectoral, comprehensive framework for tackling rape and sexual assault. The piecemeal and fragmented ordinance can only serve to sabotage the intention of providing recourse to victims of sexual violence," AIDWA president Shyamali Gupta said in a statement.

She said the ordinance did not address amendments in respect of the culpability of the state and punishment to officers who trivialised their responsibility; a review of the Armed Forces (Special Powers) Act; and the issue of bringing Army personnel under the jurisdiction of criminal law. It also ignored sexual autonomy, violence embedded in marital rape, the concerns of those with alternative sexualities.

Furthermore, the Verma Committee recommended that rape and sexual assault be a gender-specific crime, with separate provisions for same sex sexual crimes. But the ordinance retained gender neutrality, which amounted to a negation of the reality that rape was a heinous offence being committed against women.

The National Federation of Indian Women (NFIW) has also expressed similar views.

"UPA-II is running away from serious debates on the issue of sexual violence, framing a law to prevent it and the steps needed for its effective implementation...," general secretary Annie Raja said in a statement.

"Welcoming the inclusion of graded sexual violence, the NFIW strongly opposes the provision of gender neutrality of rape. The long-pending demand of the women's movement for the inclusion of the Forces under this law is also not considered by the Central government," the statement added.





go to top