Friday, March 8, 2013

Justice Verma Commission’s Report


Making far reaching recommendations, the Justice Verma Committee report, released on January 23, 2013, has favoured comprehensive amendments to criminal laws, seeking minimum 20 years imprisonment for gang rape and life term for rape and murder, but refrained from prescribing death penalty.

However, the three-member Committee, headed by former Chief Justice J.S. Verma and comprising a former High Court Chief Justice Leila Seth and jurist Gopal Subramanium, which was constituted in the wake of the nationwide outrage over the December 16, 2012 gang rape of a girl in Delhi, is not in favour of reducing the age of juveniles under the law. Nor did the Committee favour chemical castration of rapists, saying the Constitution of India does not permit mutilation of a human body. 

In its report to the government, the Committee has suggested amendment of criminal laws to provide for higher punishment to rapists, including those belonging to police and public servants. New offences have been created and stiffer punishment has been suggested for those committing rape and leaving the victim in a vegetative state. They include disrobing a woman, voyeurism, stalking and trafficking. 

Sexual misconduct also includes intentional touching, spoken words and gestures made as advances.

The present law provides for punishment of rapists imprisonment ranging from seven years to life in jail. For the first time, the minimum punishment is sought to be raised to 20 years in some cases.

The panel’s view on juvenile’s age assumed significance in the context of strong demands for lowering the age from 18 to 16 against the backdrop of the allegation that one of the six accused is said to be a juvenile. 

The Committee also traversed various areas in a bid to check crimes against women seeking disqualification of MPs and MLAs charged with heinous crimes like rape, measures to check khap panchayats and trial of personnel of security forces under ordinary criminal laws and not under AFSPA. 

Justice Verma said the Committee has not suggested death penalty for rapist because there was overwhelming suggestions from the women organisations against it. 

Perhaps the most sterling contribution of the Committee is that it has virtually drawn up a Bill of Rights for women, by framing sexual assaults against women in a larger socio-politico-legal context and thereby providing a framework with an all-seeing, 360-degree view to address the complex problem at several levels.

The Commission’s terms of reference had provided for a rather more limited ambit: to make recommendations to amend the criminal law to provide for quicker trial and enhanced punishment for criminals committing sexual assaults on women. But the three-member Commission went over the top, by providing a bird’s-eye overview of the context in which such crimes happen. 

By identifying bad governance and the frameworks of patriarchy in society as the foundation upon which crimes against women occur, the Commission has given agencies other than the government, the lawmakers, the police and the judiciary sufficient cause to reflect on the extent to which elements of civil society at large contribute to the climate of misogyny that feeds the commodification of women and, ultimately, acts of sexual assault and violence against women.

Going into specifics, the Commission report makes concrete recommendations in respect of electoral reforms, police reforms, “education and perception reform”, measures to deal with extra-judicial authorities like the khap panchayats, child sexual abuse, trafficking in women, stalking, cyber-stalking, sexual harassment in the workplace, medico-legal examinations of victims of sexual assault, and so on.

The Commission’s report also did not shirk from addressing what will likely prove contentious subjects–such as its recommendation that the Armed Forces (Special Powers) Act (AFSPA) be reviewed to do away with the immunity given to armed forces personnel accused of sexual violence in conflict areas.

In its entirety, the Commission report offers measured, yet radical, recommendations to meaningfully address the problem of sexual assault and violence against women at many levels, including at the foundational level of societal patriarchy. 

Yet, even with such a lucid template for action, the challenges ahead in implementing the Commission’s recommendations are not inconsiderable. The very same agencies that enabled the rot to set in so deep will work overtime to ensure that none of the more radical recommendations are implemented. Thus, the hard part of getting the Commission’s recommendations implemented lies ahead.

Highlights of the Report

  • Retaining the term rape, the Commission has clearly made it a gender specific crime clarifying that only a male can be a perpetrator, but victims can be gender neutral.
  • In the section on rape—376— several new offences have been proposed. Section 376 (1) deals with rape whose definition is proposed to be enhanced beyond the current peno vaginal penetration to include penetration with any object or part of body of the person’s mouth, anus or urethra. Rape has been proposed to be made punishable with not less than 7 years RI going up to life.
  • Section 376 (2) is proposed to be added to deal with aggravated sexual assault where, for the first time, armed and security forces have been included with the Commission seeking an amendment of Armed Forces Special Powers Act to clarify that no prior sanction would be required to prosecute any armed personnel accused of rape or aggravated sexual assault which has been defined as assault by people in positions of authority or trust - police, public servants, remand home in charges, hospital staff; parents, guardians and teachers. This offence should be punishable with 10 years RI to life imprisonment.
  • Section 376 (3) is proposed to be introduced to cover the offence of rape which leads to death or persistent vegetative state which would be punishable with 20 years up to imprisonment for the rest of natural life. A new Section on gang rape—Section 376 (C)—has been proposed with punishment of 20 years to the rest of life.
  • The commission has also introduced a new Section 376 F—the offence of breach of command responsibility wherein senior officers can be punished with not less than 7 years RI if they fail to ensure their juniors act according to law in registering rape FIRs and investigation.
  • The panel has identified "failure of governance” as the root cause for sexual crime. It has criticized the government, the police and even the public for its apathy, and has recommended dramatic changes.
  • The panel has expressed need a comprehensive law for violence against women.
  • Must address mild sexual harassment. Every complaint of rape must be registered. The panel has also included instance of eve-teasing, stalking and voyeurism, insensitivity of police to deal with rape.
  • Need for provisions to address sexual assault on homosexuals.
  • The panel asked, how can khaps, which are unconstitutional, declare a marriage invalid?
  • Police reforms a must for preservation of rule of law.
  • Law enforcement agencies must not become tools in the hands of political masters.
  • Politicisation of crime must stop. At present politicians are disqualified for elections if there is conviction; they should be disqualified once cognizance of offence is taken by the court.
  • The ambiguity of the responsibility of law and order in Delhi, the reason given publically by the Chief Minister for the absence of responsibility, must be removed.
  • Need to prevent marital rape and rape of children at home.
  • Bring sexual violence by personnel in uniform under common law.
  • The panel has observed that the "impunity of systematic sexual violence is being legitimized by the armed forces special powers act.” It has said there is an imminent need to review the continuance of AFSPA in areas as soon as possible.
  • Post special commissioners for women’s safety in conflict areas.
  • More effective control of subordinate judiciary by high courts.
  • There should be no delay in giving necessary medical aid: even private practitioners have a duty to perform.
  • General laws related to detention of women during regular hours must be strictly followed.
  • Strong measures should be in place to ensure security and dignity of women in conflict areas.
  • Equality of women being violated is a constitutional violation.
  • All marriages must be registered—that should also ensure no dowry is demanded or taken.
  • Criminal law amendment Bill 2012 should be amended.
  • Make journey in public transport safer, especially for women.
  • Run juvenile homes in the spirit envisaged in the Juvenile Justice Act; need a mechanism to run these homes. The panel has noted that juvenile homes have become breeding grounds of all sorts of sex crimes.
  • Government apathy towards missing children has to be shaken off.
  • Trafficking of minor children must be made a serious offence.
  • If any police officer, public servant is found trafficking a child there should be a stricter sentence against him.
  • The judiciary has the primary responsibility of ensuring fundamental rights through constitutional remedies. The CJI can take suo motu cognizance, social activists should assist the court.
  • In education, ensure non-discrimination for women and children. Education is the most potent tool of human development.

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