Forcing the issue

Print edition : February 08, 2013

Women police officers attending a special course on 'Investigation of Rape Cases' at the specialized training centre of Delhi Police, on January 2. Photo: V.V. Krishnan

At Jantar Mantar in New Delhi on January 6, a protest against sexual assault on women. Photo: SAJJAD HUSSAIN/AFP

THE murderous gang rape of a 23-year-old paramedical student in Delhi brought to the fore several issues relating to the status of women in Indian society. It kick-started a debate on various fronts, including on the conservative bias that characterises the attitude of people in public life towards women. The incident, which shook the country by the sheer nature of its brutality and the callousness of the police, stirred a debate also on questions relating to the Criminal Law (Amendment) Bill, 2012, introduced in the Lok Sabha on October 19, 2012, and other issues such as police reforms, the need for fast-track courts, quick disposal of cases of crimes against women and, above all, infrastructural, legal and institutional interventions to make gender equality a concrete reality.

That the Congress party constituted a special committee on women’s issues and empowerment for its Jaipur conclave, held in the third week of January, shows how public reaction to the incident has forced the party to take up the issue now. The committee comprises senior Congress leader Ambika Soni, Union Ministers M. Veerappa Moily, Jairam Ramesh and Jayanthi Natarajan, and Girija Vyas, former Chairperson of the National Commission for Women (NCW). The conclave is seen as an opportunity for the government to get proactive on women’s issues, which are normally kept on the back burner.

Meanwhile, the reports of the Justice J.S. Verma Committee and the Justice Usha Mehra Commission constituted to look into administrative lapses are eagerly awaited. Several political parties and groups have given their representations to the Verma Committee. Women’s organisations and the Left parties, particularly the Communist Party of India (Marxist), feel that the terms of reference are narrow as they focus on punishment alone. The terms of reference of the committee pertain to two aspects: “Amendments to criminal laws and other relevant laws for quicker trials and enhanced punishment of criminals accused of sexual assault of an extreme nature on women.” Several groups consider that this by itself is inadequate as the terms of reference exclude other forms of crimes against women that might not fall in the “extreme nature” category.

The Criminal Law (Amendment) Bill proposes to amend the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act, 1872. The CPI(M), which was one of the earliest among political parties to submit recommendations to the committee, wants clauses in the IPC and other laws concerning gender assault to be gender specific and not gender neutral as suggested in the Bill. The Bill, it says, has widened the definition of sexual assault but falls short of enhancing punishment for sexual assault by public servants, including police personnel and the staff of jails. It has suggested that this list include personnel of the Army and paramilitary forces. Sexual assault committed by them is to come under the category of aggravated sexual assault, it says. Aggravated sexual assault should include gang rape, custodial rape, child rape, rape during communal or caste violence, rape of a woman suffering from mental or physical disability, and sexual assault that causes grievous bodily harm or disfigurement. Punishment in such cases should be rigorous life imprisonment until death, the CPI(M) representation says. At least nine national women’s organisations echo these demands.

As courts have rarely awarded the maximum sentence, the CPI(M) has argued that it is essential to increase the minimum sentences in all cases of sexual assault, which at present are seven years’ rigorous imprisonment for rape and 10 years’ rigorous imprisonment for aggravated sexual assault and rape. Other demands are for special fast-track courts for all cases of rape, completion of all cases of sexual assault in three months, and refusal of bail for the accused until the trial is over.

Besides, it says, public servants who fail to implement the law should be awarded a minimum punishment of one year extendable to three years. The CPI(M) representation describes as humiliating the compensation package of Rs.20,000 to a rape victim declared by some State governments and calls for rehabilitation measures to include medical expenses and a government job. It has also called for amending rules and laws pertaining to advertisements that commodify women’s bodies. Additionally, it has urged the committee to recommend a stand-alone law to cover all “honour–related” crimes and to take strict action against the diktats of khap panchayats.

Administrative measures suggested include steps to make public places safe and secure for women at all times: a strong public transport system, mapping of vulnerable areas in cities and towns, and the provision of public toilets for women. The Bharatiya Janata Party has called for stringent laws that would act as a deterrent to rape. It has recommended the death penalty for persons convicted of gang rape, custodial rape or rape after kidnapping. The party has also demanded lowering the age of a juvenile as stipulated under the Juvenile Justice (Care and Protection of Children) Act, 2000, from 18 at present to 16. This demand has come in the wake of growing protests over the involvement of a juvenile in the Delhi gang rape, who, according to reports, was the most violent of the six accused.

However, those working with children and juveniles have objected strongly to any tampering with the Juvenile Justice Act. The purpose of the Act is to provide for the care, protection, treatment, development, rehabilitation and social integration of delinquent juveniles. The age of 18 is internationally recognised as the age of innocence. However, those who argue for lowering the age quote National Crime Records Bureau statistics to say that in 2011, as many as 64 per cent of all juvenile criminals were 16 to 18 years of age. Only 5.7 per cent of the juveniles arrested were homeless; a vast majority stayed with their parents or relatives, but were from economically backward families. Clearly, the demand for lowering the age for a juvenile is fraught with problems as is the knee-jerk reaction demanding the death penalty for rape. The reasons why a social and economic system turns children into criminals need to be understood.

Demands by women’s groups Women’s groups urge the committee to look at the issue in a holistic and comprehensive manner. Apart from the All India Democratic Women’s Association (AIDWA), the signatories of the representation are from the National Federation of Indian Women, the Guild of Service, the Joint Women’s Programme, the All India Dalit Mahila Adhikaar Manch, the Centre for Women’s Development Studies, the Young Women’s Christian Association, the Muslim Women’s Forum and the All India Women’s Conference, which owes allegiance to the party ruling at the Centre.

They have demanded fast-track courts for all cases of sexual assault and want to make it mandatory for courts to give their judgments within three months. Other recommendations are investigation of all cases of sexual assault and other violent crimes against women within a month; witness-protection legislation; refusal of bail to the accused during the trial period; standard operating procedures to be followed by the police, including the immediate registration of a case and sending the complainant for medical examination within a few hours (judgments given by the Delhi High Court in 2003, 2007 and 2008 on standard operating procedures have seldom been followed); and doing away with the “two-finger test” for a victim of sexual assault. The memorandum also says that not death penalty but imprisonment for the entire period of the convict’s life should be prescribed in cases of aggravated forms of rape.

The women’s groups have also objected to making Section 375 of the IPC gender neutral. This implies that women can commit sexual assault on men, for which there is no empirical evidence. According to them, the archaic definition of molestation under Section 354 of the IPC too needs to be redefined, from assault with intent to “outrage the modesty of a woman” to touching a woman with a sexual purpose or intent. Other suggestions include recognising marital rape as rape and treating sexual assault on a separated wife like any other sexual assault. Besides, the proposals say that consent needs to be redefined as unequivocal voluntary agreement; that sexual activity between 16 and 18 should not be classified as rape when the accused person is not more than five years older; that stalking and stripping be recognised as a separate offence with punishment up to five years; and that sexual assault by personnel of the armed forces and paramilitary be included in the definition of aggravated forms of penetrative and non-penetrative sexual assault, including such assault during communal, caste or sectarian violence. It also recommends the questioning of victims by a woman who can be a police officer, a government servant or someone working with any authorised organisation.

Insensitive remarks

A televised interview of the friend of the gang-rape victim laid bare the callousness of the police and the hospital staff. The police vans arrived a good 45 minutes after a call was made to them, and while the youngsters lay bleeding in the cold without clothes, the police were arguing about jurisdiction. He said the police refused to help carry his friend who was bleeding profusely. At the hospital, too, they had to lie without clothes for some time. For four days, he was kept in the police station. Worse, no one from the government visited him or his family.

Meanwhile, the irresponsible statements from elected representatives and religious leaders were a revelation of sorts. The religious guru Aasaram Bapu’s statement that the girl could have escaped rape had she addressed the perpetrators as “brother” drew widespread recrimination. Vishwa Hindu Parishad (VHP) international president Ashok Singhal pointed fingers at Western culture; Madhya Pradesh Industry Minister Kailash Vijayvargiya advised women not to cross the “Lakshman rekha”; and Rashtriya Swayamsewak Sangh (RSS) chief Mohan Bhagwat at a meeting in Silchar said rapes were an urban phenomenon and, like his ideological counterpart, Singhal, blamed Western values. Bahujan Samaj Party MP from Sambhal in Uttar Pradesh, Shafiqur Rehman, who is a member of a parliamentary committee on Home Affairs, told a television channel that women were responsible for the assaults on them by the way they dressed; Abhijit Mukherji, recently elected to the Lok Sabha from Jangipur in West Bengal in a byelection, described women protesters as “dented and painted”. Andhra Pradesh Congress chief Botsa Satyanarayana wondered why women needed to travel late at night, and elsewhere khap panchayats declared that eating chow mein resulted in increasing violence against women.

Significantly, while issuing a notice on a plea seeking a direction to the government to ascertain the feasibility of the “two-finger test” as a medical procedure, a two-judge Bench of the Supreme Court sought a response from the Delhi government and the NCW on the constitution of a Criminal Injuries Compensation Board. The apex court had, in 1995, directed that it be established.

Meanwhile, within the government, one-upmanship continued. A letter sent by Union Minister for Rural Affairs Jairam Ramesh to Delhi Chief Minister Sheila Dikshit with suggestions to improve public transport for women, and to deploy women telephone operators for the helpline suggested by her, and to include women police officers who could be contacted by the helpline operators met with hostile reaction. The Minister had described Delhi as having a dubious reputation in the matter of women’s security. Sheila Dikshit apparently wrote back saying that the Minister could take up the matter with the Centre as law and order in Delhi was not within her purview.

It appears that rather than preparing a cogent plan of action integrating various departments and concerns the government is just reacting to growing pressure from the ground. The implementation of the recommendations of the Verma Committee and the deliberations at the Jaipur conclave will indicate the extent to which the government is serious on the issue.

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