Print edition : February 22, 2013

A protest march against gender discrimination and sexual violence on January 26 in New Delhi. The December 16 gang rape has brought protesters into the streets demanding that the government protect women. Photo: Altaf Qadri/AP

The accused in the Sultanpuri gang-rape case being taken to a court in Rohini, in New Delhi, in December 2010. The victim in this case was a teenager who was gang-raped in a moving car. Photo: Sushil Kumar Verma

Former Chief Justice of India Justice J.S. Verma. Photo: Sushil Kumar Verma

The Justice Verma Committee comes up with progressive recommendations in its review of the laws relating to sexual assaults against women.

WOMEN’S groups have generally responded favourably to the report of the three-member committee headed by Justice (retired) J.S. Verma that reviewed the laws dealing with sexual assaults against women. The other two members of the committee, which was set up on December 24 in response to the December 16 gang rape and the public outcry that followed, were Justice (retired) Leila Seth and former Solicitor General Gopal Subramanium. It received over 70,000 responses within a fortnight and came up with its report in a month’s time.

The report, which was submitted on January 23, has drawn praise from political parties and women’s organisations that have been urging successive governments to amend or enact laws for women and implement them.

The report places on the state the onus for ensuring that women are safe. Its authors lament that it is “unfortunate that such a horrific gang rape (and the subsequent death of the victim) was required to trigger the response needed for the preservation of the rule of law—the bedrock of a republic democracy”. They have expressed the hope that “the tragedy would occasion better governance, with the state taking all necessary measures to ensure a safe environment for the women in the country”. The authors have said they hope some follow-up action will be taken within 30 days of the submission of the report, especially before the Parliament session starts. “Unless and until the state pursues a policy of avowed determination to be able to correct a historical imbalance in consciousness against women, it will not be possible for men and indeed women themselves to view women differently through the prism of equality,” the report says. The first part of the report outlines the committee’s approach to the problem, while the second lists its recommendations.

The report draws its moral authority from the Constitution and states in the introductory chapter that the “right to be protected from sexual harassment and sexual assault is, therefore, guaranteed by the Constitution, and is one of the pillars on which the very construct of gender justice stands”. It criticises political leaders and religious heads for reinforcing gender biases through their utterances and some for blaming the victim.

The report equates the importance of political equality with other kinds of equality, such as social, educational and economic, saying that de facto equality guaranteed by the Constitution has not become a reality for women and asking, rhetorically, “Does the Indian state live at two levels?” One level, according to it, comprises the affluent sections that have access to the Constitution and its machinery and the other comprises those who live in the silent domination of the superior will of tradition, customs and practices that are derogatory to women.

The time has come, the report says, to enact laws providing for the disqualification of elected representatives who have expressed a gender bias through their statements. The authors are “distressed to say that all organs of the state have, in varying degrees, failed to fulfil the promise of equality in favour of women”.

The report comes down heavily on extra-constitutional bodies like khap panchayats and the failure of Parliament to denounce these bodies. “We wish to make it clear that acts of extra-constitutional bodies like the khap panchayats, which restrain the right of men and women to select a partner of their choice, do not enjoy the sanction of law in India… we are unable to understand how a set of self-styled bodies and panchayats can outlaw marriages born out of free choice,” the report observes.

It looks critically at the mindset of the judiciary, at institutional biases, especially towards the economically weaker sections, and at the construct of gender justice in India. It examines the historical neglect of women in planning and public policy, pointing out that it was as early as 1939 that a National Standing Committee appointed a subcommittee to work out a role for women in a planned economy. The lack of empowerment of women, the report says, resides in three factors: one, the inequality perceived and felt by women; two, de facto inequality; and three, poverty and lack of power, or, the inability to access authority in equal terms.

Defining sexual assault

In one of the most important chapters, which deals with rape and sexual assault, the report concurs with the views of women’s organisations that the Criminal Law Amendment Bill, 2012, is far from complete, especially as the new provisions, while expanding the ambit of penetrative forms of rape, has confined itself to penetration alone, with other forms of sexual assault remaining outside the purview of legal sanction. The inclusion of other non-penetrative forms of sexual assault, including redefinition of rape to include all non-consensual penetrative acts of a sexual nature, has been recommended. It has looked at Law Commission reports that have examined issues of consent in rape. With respect to marital rape, it endorses the conclusion of the European Commission on Human Rights, supported by women’s groups here, that a rapist remains a rapist regardless of his relationship to the victim.

Harassment at work

The report has looked critically at the recently introduced Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012, noting that there was no debate on this in the Lok Sabha. It recommends the widest possible application to take within its scope all women in the workforce, including those in the unorganised sector, the armed forces and the police, and women students and staff of all schools and educational institutions. It has noted that the Bill excluded from its ambit students of universities, colleges and schools.

The committee describes as “abusive” Section 14 of the Bill, which seeks to penalise a woman for making a false complaint, and the provision to attempt conciliation between the complainant and the respondent. The report notes that the Bill has no compensatory mechanism for a victim of sexual harassment. While welcoming the definition of sexual harassment in the Bill, the report has suggested that the definition must give due weight to both subjective and objective criteria as far as the explanation of the term “unwelcome” is concerned. The report has suggested the setting up of a tribunal, rather than an internal complaints committee, to receive and adjudicate all complaints.

The committee has also recommended the appointment of retired judges to expeditiously dispose of pending cases. It says that public prosecutors should be appointed on the basis of merit and that cases of rape and sexual assault should be tried by women prosecutors, and, to the extent possible, by women judges.

In the section dealing with other offences against women, the report has recommended the inclusion of acid attacks as a separate offence in the Indian Penal Code. It recommends that sexual violence against women by members of the armed forces or uniformed personnel be brought under the purview of ordinary criminal law and special care be taken to ensure the safety of complainants. It says that the Armed Forces (Special Powers) Act and other similar protocols in situations of internal conflict should be reviewed.

The report also deals with trafficking in women and children and includes detailed testimonies from children that implicate policemen in several acts, including rape. It notes that the term “trafficking in persons” is nowhere defined in Indian law and recommends the usage of the composite definition as in the United Nations Palermo Protocol. The committee members have taken a serious view of the state of homes for children and women and the abuse they face there.

The committee has not recommended the death penalty for rapists, not even in cases of aggravated sexual assault, including in exceptional conditions where such brutality leads to death or to a vegetative state, because death may not be a deterrent. The committee is also against chemical castration for rapists and the lowering of the juvenile age limit to 16 years. It recommends rigorous imprisonment for the rest of the convict’s natural life.

A new section for gang rape has been recommended where punishment shall not be less than 20 years and may extend to life; the convicted person should also be liable to pay compensation to the victim to the extent that it must at least meet the victim’s medical expenses. New sections covering acts of disrobing, voyeurism and stalking have also been recommended for legislation on sexual assault. Where such offences lead to death, the case could be tried under Section 302 (murder), though many such cases would fall under Section 304 since the intention to kill may not be established.

The report expresses shock at the “incapability of the Government of India and of various State governments to implement even the most basic measures [of safety] with any amount of efficacy”. There have been Supreme Court and High Court directions from time to time banning the use of black film on windscreens, safety glasses and side glasses of all vehicles throughout the country.

Existing laws

The committee says that the existing laws, if faithfully and efficiently implemented, are sufficient to maintain law and order and to protect the dignity and safety of people, including women. Law-enforcement agencies must be insulated from political interference, the report says. It has also dwelt on the “peculiarity of the government of Delhi not having any control over the police force”. This was cited by the Delhi Chief Minister to contend that her government did not have any responsibility in the gang-rape case. The committee recommends the removal of this ambiguity for purposes of accountability so that there is no divided responsibility in Delhi in respect of law and order. One of the primary recommendations relates to the mandatory registration of all marriages in the presence of a magistrate. It says the officer of law should ensure that no dowry has been exchanged and the marriage has the consent of both partners. The report is silent on marriage expenditures, though.

The report suggests that the Criminal Law Amendment Bill, 2012, should be further amended to include sexual assault on men and also transgender and transsexual rape. It has recommended special protocols for medical legal examination of victims of sexual assault, special procedures for protecting persons with disabilities, and the placement of police officers with outstanding ability and character at higher levels of the police force. It has taken strong note of the rising cases of missing children and placed the onus on District Magistrates to carry out a census of missing children in their districts. The Chief Justice of the High Court in every State should have the machinery for the supervision of protection homes, and the immediate and ultimate guardianship of their residents must rest with the court.

A new constitutional authority, akin to the Comptroller and Auditor General, for women and children has also been recommended. The committee has suggested amendments to the Representation of the People Act that will require a candidate to declare pendency of a criminal case and to produce a certificate from the registrar of the High Court to validate his nomination. A candidate who fails to disclose a charge or the commission of an offence ought to be disqualified, recommends the report.

The report needs to be appreciated not only for being sensitive and responsive to the positions of women’s organisations, but also for the approach and understanding it has adopted to lay bare the impediments to ensuring equality for women. There is, however, a degree of cynicism in the report as far as the importance of political representation of women is concerned, a view which is not necessarily shared by women’s organisations.

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