Laws are adequate but...

Crime & women The outpouring of anger and grief after the 16/12 gang-rape has made govt seek change

Laws are adequate but...

As former chief justice of Himachal Pradesh High Court Leila Seth assists Justice J S Verma Committee to trawl through hundreds of suggestions received from experts, NGOs, lawyers, masses and organisations, she will recall her own co-authored and more than a decade-old 172nd Law Commission report on review of rape laws.

On the direction of the Supreme Court, way back in 1999 the Law Commission had recommended replacing “rape” with “sexual assault” in the Indian Penal Code and making it gender neutral – a debate that is raging now post 16/12 barbaric gang-rape and fatal assault on a paramedical student in a moving bus on a South Delhi road.  

The three-member Verma Committee, which has former solicitor general Gopal Subramaniam as another member, was constituted by the UPA government to review laws and give suggestions to make them more relevant for checking crimes against women. The Committee is supposed to submit its report by January 23.

A commission of inquiry under Justice Usha Mehra was also appointed by the Centre to probe the Delhi gang-rape to ascertain the faultlines in the public transport system, post-crime police response and administrative delivery platforms which forced people to take to the streets in protest against indifferent politicians, incompetent police, inadequate medical care and socially indolent chatterati class.    

Sitting Supreme Court judges and NHRC chairperson K G Balakrishnan find existing laws adequate, as against the public outcry for replacing capital punishment for life sentence in the Indian Penal Code (IPC). Even the directors general of police of states were against death penalty at a just held conference organised by union home ministry. At the same time, jurists are for strict and timely implementation of laws so that it works as a deterrent to perpetrators of crime.

What ails our judicial process that deals with sexual offences against women is that the punishment of an accused is sourced on circumstances in which victims and perpetrators find themselves, instead of the gravity of the crime. Perhaps, it is for this reason that many voices are being raised at different platforms for grading of sexual offences and backing them with appropriate punishment, including introducing an additional Section 376 E (which deals with rape) of the IPC that would make “unlawful sexual contact”, which means touching a person with sexual intent, an offence inviting jail term of two to three years and fine. So far, such offences are covered under loosely defined ‘outraging the modesty of a woman’ penal provision.

The UPA government too has recognised the lacuna in the law and that is why a Criminal Law (Amendment) Bill of 2012 has been introduced in Parliament to widen sexual assault definition and make it gender neutral and treat acid attacks as a separate crime.

Sample some of the 60,000 odd suggestions Verma Committee has received: Major political parties like the BJP and Congress are in favour of death penalty in rape cases. Besides, having broader consensus on the fact that the definition of rape should be enlarged to include all forms of penetration as sexual assault and make the offence gender neutral as the law now accepts homosexuality.

Other legal points that need altering to address societal aberrations as commonly agreed upon by NGOs, political parties, state governments like Kerala and experts are that there is a need for having fast track courts and lowering the upper age limit for considering a person juvenile to 16 years from the existing 18. As witnessed in the gang-rape case, the juvenile accused was the most violent of the six bus crew members facing trial.

Central Indian Administrative Service (IAS) Association, in their recommendation to the
Verma Committee, state that rape proved to be committed by a juvenile must attract the same punishment as in the case of others after the convict attains majority. It was, however, against the chemical castration of accused for the bureaucrat association feels it is repugnant to a progressive society as ours.

An interesting suggestion to the Committee came from NGO Bhartiya Patita Uddhar Sabha, which has been working among the prostitutes in the capital for years now. The NGO feels that flesh trade should be legalised in the country as a measure to check rape.
The other suggestions to tighten up the procedure is to make mandatory for women cops to take the statement of a victim, that probing questions prejudicial to a person should be barred and medical examination should be done only by women doctors. In a recent rape case of Punjab, the cops reportedly asked queries invading privacy of a girl, who eventually committed suicide. Due to lack of training and insensitiveness of the police, sexual violence is rarely reported.

Rape prosecution requires medico forensic examination, such as two finger test of vaginal laxity that is irrelevant to the determination of rape and demeaning to women, says UN Working Group on Human Rights in India in a 2012 report.

Minister of State for Home R P N Singh wants the government to follow name and shame policy, which means that the police should prepare dossiers of the rapists and make their details along with photographs public after conviction so that people are aware of offenders – a practice followed by some countries.

Destruction of evidence

Former Chief Justice of India V N Khare is against death penalty for rapists. Giving one of the main reasons, he told Deccan Herald that “accused will start murdering after raping women to destroy evidence”.  In sexual assault cases, the statement of victims is important and enough to convict culprits in many cases.

He believes that since the “nation is emotionally surcharged” after the 16/12 gang-rape, people are demanding capital punishment.

The former CJI’s legal prescription is that “fear of law is paramount” and that can be instilled by ensuring fair investigation and speedy conviction.  “The government should segregate investigation from law and order duties of police and have special courts,” suggests Khare.

The national outrage has also highlighted the need to tweak People’s Representation Act to bar politicians facing sexual offence charges from contesting elections, as pointed out by Association for Democratic Reforms (ADR). ADR, which has filed a PIL in the SC on the issue, analysed data to reveal that two Lok Sabha MPs face domestic violence and assaulting women charges. And  in the last five years, parties nominated 260 candidates who await trial on sexual offences charges.

Former BSF DG Ajai Raj Sharma, who was also Delhi police commissioner, believes making police sensitive to women’s issues should be enhanced during training. Besides, he  says, “We have to also look at the up bringing of children. Generally, those youth whose parents have  taught to respect the other sex do not indulge in shameful acts”.  

The disturbing statistics on sexual crimes raise questions on the attitude of people towards women. Unless the nation treats women as equals and with respect, the shocking figures -- two women raped every hour in the country and 22,172 rape cases registered annually, as compiled by National Crime Records Bureau – will hold ‘India shining’ attempts to ransom.

A rape which did not let India forget

For every new rape reported in the country, scores of these most horrific of crimes are forgotten - except by the victims and their families. But every once in a while, an incident happens which ignites a spark.

The first such incident in India occurred in 1972 when Mathura, a 16-year-old tribal girl, was raped by two policemen inside a police station.

The courts set free the accused - they said she did not raise an alarm, she was not injured, and since she was sexually active, she would have "voluntarily" consented to sex. Angry protests from activists led to the government amending the anti-rape law in 1983 to include the provision that if a victim says that she did not consent to sex, the court will believe her.

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