People's Democracy
(Weekly Organ of the Communist Party of India (Marxist)
No. 02
January 13, 2013
|
Vol. XXXVII
No. 02 January 13, 2013 |
SUBMISSION TO THE JUSTICE
VERMA COMMITTEE
Women’s Organisations
Suggest Comprehensive Legal, Social
Reforms
Below
we publish the text
of the joint memorandum submitted by national level
women’s organisations to
the Justice Verma committee at
WE,
the undersigned, are
women’s organisations and others who have been engaged in
the struggle for
amendments to the substantive and procedural laws related to
sexual assaults
for the last 20 years and more. We have also had several
meetings in this
period with the administration and the police including the
commissioner of
Police,
We
feel that the law
should reflect the different forms of sexual assaults that
women experience in
their daily lives and that the Criminal Law Amendment Bill
2012, though a step
in the right direction, is erroneous in so far as it makes
the rape law gender
neutral and does not make sufficient or comprehensive
changes to the various
provisions which deal with sexual assaults. We also feel
that there are
deficiencies in the procedural laws which have an adverse
impact on a
complainant in a rape/sexual assault case.
Preventive
steps also need
to be taken to ensure the safety and security of women
throughout the country.
We
feel that the question
of speedy justice is inextricably linked with how
efficiently the police can
investigate a case without being influenced in any manner.
In a country where
there are huge differences between the rich and the poor and
between upper and
lower castes and between different communities, the most
vulnerable are often
those who are marginalised and have neither influence nor
power nor money. For
these people, it is extremely important that the rule of law
holds sway.
Apart
from this, a woman
who has been subjected to sexual assault and other violent
crimes is in urgent
need of rehabilitation and medical and other care which must
be systematically
provided by the government which often doles out ad hoc sums
of money
arbitrarily.
We
start our
recommendations on the terms of reference of this committee
and then go on to
recommend other changes in the laws relating to sexual
assault and in the
procedural law.
(I) Fast Track Courts
and Speedy
Justice
and Efficient
Investigation
1) We
recommend that fast
track courts be setup to deal with all cases of sexual
assault. It should also
be mandatory for these Courts to give their judgement in
these cases within a
period of three months. A proviso to Section 309(1) of the
CrPC stipulates that
the inquiry or trial of cases under Sec 376 to 376 D should
be completed within
a period of two months as far as possible. We suggest that
the section should
be enlarged to include all cases of sexual assault including
those under Sec 354
IPC. We have seen in the past how the courts have misused
the discretion given
to them to adjourn cases and feel that the committee must
find ways and means
of limiting the discretion given to courts to adjourn cases
for all sorts of
reasons.
For
quicker trials we also
need a time-bound investigation of cases. The investigation
should not only be
quick but also efficient and scientific in nature. We
suggest that in all cases
of sexual assault and other violent crimes against women the
investigation
should be completed within one month. During this period and
during the trial
of the case we suggest that the accused should not be given
bail as we are in
any case recommending that both the investigation by the
police and the trial
of the case should be completed within a period of three
months. We say this
because despite the law, those women who have suffered
sexual assault and the
witnesses in these cases are inevitably influenced to
withdraw the case and to
change their testimony. For this, of course, a witness
protection legislation
is also necessary.
2) To
improve the
efficiency of the police while investigating an offence of
sexual assault and
harassment under Sec 375/376, 354, and 509 and under the
various provisions of
the protection of children under the Sexual Offences Act we
suggest that the
police should strictly follow standard operating procedures.
These procedures
should mandate the police to immediately register a case,
and send the
complainant for medical examination within a few hours. The
procedures should
also detail the important evidence that the police should
collect including clothes
at the spot. It should also specify that the statement of
the party and the
witnesses should be collected within days of the incident.
We also recommend
that if the police do not follow this procedure they should
be punished. A
model standard operating procedure should be circulated
throughout
3) It
is pertinent to
mention that from time to time the Delhi Police has issued
certain standing
orders including Standing Order No 303/2010, which lays down
certain guidelines
to be followed in cases of rape. Though further changes can
be suggested to them,
these guidelines are a step in the right direction. The
guidelines stipulate
that a lady police official will be present in each police
station, that the
‘victim’ and her family will be made ‘comfortable’ and that
the IO along with
the lady police officer will escort the ‘victim’ for medical
examination. The
order also stipulates that no ‘victim’ of sexual assault
shall be called or
made to stay in the police station during the night and that
the statement of
the ‘victim’ will be recorded in private in the presence of
family members
unless it is a case of ‘incest.’ It has also been stipulated
that the
investigation would be supervised by an ACP and that
information of the case
should immediately be given to the rape crisis cell. In the
case of children it
is mandated that the statement of the ‘victim’ should be
recorded at her residence
and that the child should be medically examined within 24
hours and her
clothing promptly sent for forensic examination. It has also
been stated that
private hospitals should give immediate medical attention to
the complainant
and that the medical examination should be carried out after
psychiatric help
is made available to the child. We
strongly feel that these mandates should also apply to women
who need immediate
medical help and counselling after they are sexually
assaulted. However, this
standing order, which was issued after directions were given
by the Delhi High
Court in judgements in 2003, 2007 and 2008 are seldom
followed by the police in
letter and spirit.
4. We
also recommend that
the medical examination of a sexual assault victim should be
carried out in an
efficient and scientific manner and should ensure that the
victim is not
subjected to any further trauma. The two finger test which
has been found to be
not only unscientific and unnecessary but also subjects the
complainant to
further trauma and humiliation should be immediately
stopped.
5.
The Supreme Court in
Prakash Singh’s case had noted that the violation of
fundamental and human
rights of the citizens by the police is generally in the
nature of non
enforcement and discriminatory application of the laws so
that those having
clout are not held accountable even for blatant violation of
laws and in any
case not brought to justice for the direct violations of the
rights of citizens.
The SC had directed the central government to carry out
extensive police
reforms to stop political/executive interference in police
work and to ensure
their independence. The judgement had directed the
constitution of a State Security
Commission in every state to ensure that the state
government does not exercise
influence or pressure on the state police. This judgement
had laid down rules
for selection of the DGP and IG of police and other officers
and a minimum
tenure for all of them. It had directed that there should be
a separation
between the investigating police and the police which would
look after law and
order as this would ensure speedier investigation and better
expertise.
Most
importantly, the court
had also directed that a police complaint authority headed
by a district judge
should be setup in every district to look into complaints
against police
officials up to the rank of DSP while grievances against
police officers of
higher ranks would be examined by a state level complaint
authority headed by a
retired judge of the High Court or the Supreme Court. Both
these heads had to
be chosen from a panel of names proposed by the chief
justice of the state or
chief justice of
6. In
the Criminal Law
Amendment Bill 2012, the government has proposed a new
Section 166A punishing a
public servant who ‘knowingly disobeys any direction of the
law’ regulating the
manner in which he shall conduct such investigation.’ The
punishment that is
prescribed is up to one year of imprisonment. We suggest
that the word
‘knowingly’ be deleted as lack of knowledge of law cannot be
allowed to be a
defence and will be always used as a convenient defence in
these cases. We also
feel that the prescribed period of punishment is too low and
should be
increased with a prescribed minimum and a maximum punishment
of up to five
years depending on the severity of the offence and its
consequences.
7. We also
feel that it is necessary that in cases of Sexual
Assault and violent crimes against women including acid
attacks the prior
sanction of the government under Section 45 to arrest a
member of the armed
forces and Section 197 of the CrPC to prosecute a case
against a public servant
should not be necessary. This should also apply to private
armies engaged by
the state. Changes may accordingly be made in both these
Sections exempting
cases of Sexual Offences and other violent crimes against
women from the
application of the Sections.
(II) Punishment
As
far as harsher
punishment is concerned we do not feel that the death
penalty should be
prescribed as a punishment in cases of sexual assault.
Presently Section 376
prescribes life imprisonment as the maximum punishment for
rape. It also
prescribes a minimum of seven years of imprisonment for rape
and a minimum of
10 years of imprisonment for custodial rape and for gang
rape. In a large
majority of rape cases even the minimum sentence of seven
years and ten years
is not awarded by the courts in our country. We feel that
life imprisonment
should be awarded in aggravated forms of rape and that life
imprisonment should
mean imprisonment for the entire period that the convict is
alive. Sentences under
different sections should run consecutively, not
concurrently. At present the
convicts, particularly influential ones manage to get
frequent parole and
further manage to get their sentences commuted. This should
not be allowed and
appropriate changes to ensure this should be made in the
law.
III) Amendments to the
Sexual
Assault
Sections
of the Indian Penal
Code
1)
The recent Criminal Law
Amendment Bill 2012, introduced by the government in Lok
Sabha, seeks to amend
the laws relating to sexual assault in the Indian Penal
Code. The changes
proposed in Section 375 to broaden the definition of rape
and to include within
it all forms of penetrative sexual assault is a first step
in the right
direction. The section has however been made gender neutral
which is a reversal
of what the government had proposed in 2010. This seems to
imply that women can
commit sexual assault against men for which there is no
empirical evidence at
all. The section
will allow men to file
false cases of penetrative sexual assault against women. The
proposed
government bill in 2010 rightly made the law gender specific
as far as adults
were concerned and the accused persons could only be men
while the
complainants/victims were women.
2)
For a long time women’s
organisations and others have been proposing that Section
377 which allegedly
deals with ‘unnatural offences’ but in fact targets
consensual sexual
intercourse should be deleted. We had also proposed that
another section be
added to the Indian Penal Code to address penetrative sexual
assault in same
sex relationships. This will also ensure that there is no
justification for a
gender neutral provision in Section 375 of the IPC. We
reiterate both these
proposals.
3)
Apart from this,
various vital suggestions made by women’s organisations in
the attached
proposals redrafted by the AIDWA and the National Commission
for Women’s
proposals have been ignored by the present bill. A notable
example of this is
that while the law relating to molestation vis-a-vis
children has been amended
in the protection of children from Sexual Offences Act 2012,
no such amendment
has been suggested as far as the definition of molestation
of women is
concerned. The amendment to Section 354 IPC merely increases
the period of
punishment that can be awarded to a minimum of one year and
a maximum of five
years but makes no changes to the insulting, moralistic,
inappropriate and
archaic definition in Sec 354 IPC which makes sexual assault
punishable only
when it ‘outrages the modesty of a woman.’ We fail to see
why the section
dealing with unlawful sexual touch of an adult woman has not
been amended in
the government bill. We had suggested and are again
suggesting that Sec 354 be
redefined to punish touching a woman with a sexual purpose
or intent. We also
feel that the categories of aggravated forms of penetrative
sexual assault
(rape) should also be recognised as categories of non
penetrative assault. We
further state that aggravated forms of molestation which
cause or are
accompanied by causing hurt or injury or by stripping should
be specifically
recognised and added as an additional category.
4)
The bill, like the old penal
code, exempts marital rape as an offence if a wife is not
under 16 years of
age. This exemption, totally and unreasonably, ignores the
long standing demand
of the women’s organisations and groups and others to
recognise marital rape as
rape. We also recommend deletion of Sec 376 A as we see no
reason why the
punishment for sexual assault on a separated wife should not
be the same as
ordinary sexual assault.
5) We
suggest that consent
be also defined as the unequivocal voluntary agreement by a
person to engage in
the sexual activity in question. One major reason for
defining consent in this
way is to distinguish consent from mere passiveness. Case
law concerning rape
is replete with examples in which it has been said that the
victim has
consented when she has merely remained passive due to a
variety of reasons.
6) In
both the redrafted
AIDWA proposals and the NCW proposals, Clause ‘Sixthly’
under Section 375
defines statutory rape as rape of a complainant under 18
years of age. However,
taking note of the social reality that there are many
instances of consensual
sexual activity between young girls above 16 years of age
and young boys and
that it would lead to injustice if these young boys were
prosecuted for rape, we
had suggested an amendment by way of a proviso to clause
‘sixthly’ to exempt
such consensual activity from the purview of statutory rape
provided the
accused person is not more than five years older. We
strongly feel that this
proviso should be included in the government bill.
7) In
the sections on
aggravated penetrative and non-penetrative sexual assaults
we further feel that
sexual assault by personnel of the armed forces and by
personnel of the
paramilitary and other allied forces, as also private armies
engaged by the
state, should be included.
8)
Similarly, penetrative
and non-penetrative sexual assault at the time of or
together with other forms
of communal or caste or sectarian violence should be
categorised as an
aggravated form of sexual assault.
9) In
Clause (b) of
Section 376(2) sexual assault at the instigation of or with
the consent or
acquiescence of a public official or other persons acting in
an official
capacity should also be added as an aggravated form of
sexual assault. This
clause should also be added in the new section which should
deal with
aggravated forms of non-penetrative sexual assault.
10)
In Sec 375(a) of the
2012 bill, penetration of the mouth apart from the vagina
etc of a person with
any part of a body or an object of another person is defined
as sexual assault.
However, if an object or a part of the body, for example a
finger, is inserted
into the mouth it would be appropriate to equate this with
penetrative sexual
assault. Incidentally, the Law Commission draft on which
this clause seems to
be based does not mention the mouth in Sec 375 (b). It is
only when the penis
is forcibly introduced in the mouth that penetrative sexual
assault occurs.
11)
The IPC does not
specifically recognise certain types of offences involving
violence against
women. This results in grave injustice towards women. We
have been suggesting
that stalking be recognised as a separate offence in the IPC
and that an
appropriate punishment should be prescribed for it up to
five years. By not
recognising stalking as a crime, most of the perpetrators
manage to escape
prosecution and can only be charged under Sec 509 IPC which
is inadequate.
Similarly, stripping a woman should also be recognised as a
serious sexual
offence against her.
IV) Amendments to the
CrPC
1)
The proposed amendment
to Sec 273 CrPC in the bill by way of an insertion stating
that the victim
should not be confronted by the accused is welcome. However,
the method of cross
examination needs to be specified so that the victim is not
harassed and
further victimised during the cross examination. We feel
that in all cases of
sexual assault questions in cross examination should be
addressed to the court
which should then question the complainant keeping in view
the various
provisions of the Evidence Act which prohibit certain types
of cross
examination.
2) We
appreciate the proposed amendments to Sec 154 and 161 of
the CrPC in the Criminal Law Amendment Bill 2012 but feel
that the questioning
of the victim must also be carried out by a woman and that
if a female police
officer is not available, a female government servant or a
woman authorised by
an organisation working in the relevant area should carry
out the questioning.
V) Relief and
Rehabilitation
Relief
and rehabilitation
of the victim has become an urgent necessity in all cases of
sexual assault and
other violent crimes against women like acid attacks.
Statutory schemes to provide
immediate medical and other relief to the complainants who
have suffered sexual
and other forms of violence should immediately be put in
place in all states. The
scheme should provide for immediate monetary relief to be
given to the
complainant whether her case is pending in court or not. The
amount that is
provided should not be subject to an upper limit as has
presently been
suggested by the National Commission for Women as some
victims of violence like
those who have suffered acid attacks may need extensive and
repeated medical attention
apart from other relief. Women subjected to sexual and other
forms of violence
should be provided with monetary relief during the time they
are not in a
position to work or earn. For those who can work, a
government job should be
provided. The scheme should be administered by a board which
has been properly
selected. The present amendment to the CrPC by Sec 357A
mandates each state
government to prepare a scheme for the ‘victim’ and her
dependents. However,
this is not enough.
VI) Preventive Steps and
Ensuring Safety for
Women
Preventive
steps to stop
sexual assaults against women throughout the country would
involve several
measures. However, in cities and towns increased patrolling
and deployment of
police, including police women in public places should take
place. The police
should map vulnerable areas in each metropolitan city and
town where such
crimes are likely to take place and accordingly ensure
police presence. The
infrastructure in cities should be improved to make them
safer for women. In
cities and towns lighting plays a crucial role particularly
in public places
and this should be carried out. Ways and means of ensuring
that public
transport is safe should also be thought about apart from
stating that no
vehicles will ply with tinted glasses.
Apart
from this, a
national helpline with the same number throughout
VII) Gender
Sensitisation
Lastly,
we feel that our
multiple strategies to end gender violence must include
extensive, indepth
courses in gender sensitisation particularly of those who
are in charge of
dealing with crimes against women. Members of the police
force and of the
judiciary should regularly have courses of gender
sensitisation based on the
concept of women’s equality and their rights to all the
fundamental freedoms
and liberties that male citizens take for granted. Training
programmes in
gender sensitisation at the time of recruitment should be a
must. For ordinary
citizens it is necessary that these sensitisation programmes
takes place in
their place of work. It is also necessary for the government
to use the mass
media to gender sensitise the citizens. Gender sensitisation
should start at
the primary school level and all school children should be
imparted education
which teaches that girls and women are equal human beings
and should not be
discriminated against in any manner whatsoever. All school
curricula should be
reviewed to ensure that no material which is discriminatory
towards women
continues to be a part of the curriculum. A strong campaign
should be launched
to counter the erroneous but oft repeated assumption that
women’s attire,
behaviour, etc incites rape and sexual assault, which
amounts to blaming the
victim for the crime, and diverts attention from the actual
perpetrator.
We
hope that the committee
will take a comprehensive view of the issue and all our
recommendations will be
considered seriously.
The
signatories to the
memorandum were Kirti Singh and Sudha Sundararaman of
the All India Democratic
Women’s Association (AIDWA); Beena Jain (All India
Women’s Conference); Dr Indu
Agnihotri (Centre for Women’s Development Studies);
Jyotsna Chatterjee (Joint
Women’s Programme), Dr Mohini Giri (Guild of Service);
Vimal Thorat (All India
Dalit Mahila Adhikar Manch); Annie Raja (National
Federation of Indian Women); Leila
Passah (Young Women’s Christian Association of India)
and Azra Abidi (Muslim
Women’s Forum).
