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prime
concern ‘Bring
Ordinance on Bill of Rights too’ |
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prime concern By Aditi Tandon
CHANGES TO CRIMINAL LAW PERTAINING TO RAPE Current: IPC defines rape to mean only peno vaginal penetration and considers it a gender-specific crime which can only be perpetrated by a man. The definition is narrow and doesn’t address other forms of penetration of a woman’s body such as her anus or urethra with other parts of the perpetrators’ body (besides the penis) and objects like iron rods which were used in the December 16 Delhi gangrape. IPC doesn’t recognise marital rape. Verma committee:
Described rape as a gender-specific crime so far as the perpetrator goes and a gender-neutral crime so far as the victim goes. This means that while rape can only be committed by a man, the victim can be a man, a woman or a transgender. The panel widened the definition of rape stating, “A man is said to commit rape if he penetrates the vagina or anus or urethra with any part of his body, including penis, or any object manipulated by the perpetrator, except where such penetration is done for medical purpose; or with any part of the body of the person (such as a finger).” The panel called for making marital rape illegal by saying the consent of a woman to a sexual act by her husband should not be presumed as the case is. The committee sought to reduce the age of consent for sexual engagement from 18 years to 16. Govt Ordinance:
Accepts rape definition by the Verma committee. Rejects gender specificity of rape, saying the Home Ministry doesn’t agree to the provision. Women’s groups are livid at this rejection. Rejects acknowledgement of marital rape and reduction in age of consent for sexual acts from 18 years to 16. The government argues the Bill for Protection of Children from Sexual Offences provides 18 years as the age of consent and reduction cannot be harmonised. Women’s groups are distressed over these rejections. Current: Rigorous imprisonment (RI) not less than seven years and up to life or a term which may extend to 10 years and a fine. Verma committee:
RI not less than seven years and up to life and fine; also compensation enough to meet medical expenses of the victim. Ordinance:
Accepted the sentence but dropped the suggestion to pay compensation to the victim. Current:
No provision Verma committee: A person in the position of trust — police officer, member of the armed or paramilitary forces, public servant, jail staff, hospital staff, relative, guardian or teacher — committing rape shall be punished with RI of not less than 10 years, which may extend to life and must pay compensation to the victim to meet medical expenses. Ordinance:
Accepts the definition but rejects the provision regarding the payment of compensation Current: No provision Verma committee:
Whoever during the course of rape causes death of a person, or causes the person to be in a persistent vegetative state will be punished with RI not less than 20 years, which may extend to life, meaning the rest of natural life (new punishment). Ordinance:
Accepts the definition given by the panel but enhances the punishment from rest of natural life to death penalty. Current: No provision Verma committee:
Recommended a new offence and said anyone found committing gangrape will be punished with not less than 20-year RI, which may extend to life and will also pay compensation to victim to meet medical expenses. Ordinance:
Accepts the recommendation entirely. Current: No provision Verma committee:
The accused must get punishment for the rest of natural life. Ordinance:
Enhances punishment to death penalty. Current:
No provision Verma committee: Anyone who being once convicted for the offence is again convicted should be punished with imprisonment for the rest of natural life. Ordinance: Recommendation accepted entirely. Current:
No provision Verma committee: A public servant in command or supervision of the police or armed forces should be punished with RI not less than seven years, which may extend to 10 years if such public servant fails to take necessary measures to prevent or repress his juniors from committing rape. Ordinance:
Rejected the recommendation saying the offence fixes vicarious responsibility on the leader of the force for acts of subordinates. This rejection is being criticised. ACKNOWLEDGING THE CONTINUUM OF
SEX CRIMES There is no acknowledgement today in the criminal law of the fact that rape is not the final act and that it is often preceded by several other offences such as stalking. The Verma committee has recommended a range of sex offences prescribing different punishments for them keeping in mind the harm caused to the bodily integrity of women. The panel has done away with the archaic concept of outraging a woman’s modesty, which explains nothing. Here are the new IPC offences in this category: Current:
Whoever assaults or uses criminal force to any woman, intending to outrage her modesty, shall be punished with imprisonment of a term which may extend to two years or with fine or both. Verma committee:
Drops the existing IPC Section 354 entirely and replaces the term “outraging modesty” with sexual assault. Defines sexual assault in two parts: (a) intentional touching with a sexual intent punishable with RI that may extend to five years or fine or both; (b) use of words, gestures or acts including dissemination of pornographic material punishable with RI up to one year, fine or both. Ordinance: Accepts the recommendation entirely, acknowledging for the first time the continuum of sexual offences. Current:
No provision except archaic Section 354, IPC. Verma committee:
Anyone who uses criminal force on a woman to disrobe, strip must be punished with RI not less than three years, which may extend to seven and a fine. Ordinance:
Recommendation accepted. Current:
No provision Verma committee: Anyone who watches a woman engage in a private act in circumstances where she would usually have the expectation of not being observed will be punished with RI not less than a year, which may extend to three and with fine. On subsequent offence, the punishment would not be less than three-year RI that may extend to five. Ordinance:
Accepts the suggestion entirely. Current:
No provision Verma committee: Whoever follows a person or contacts or attempts to contact a person to foster personal interaction repeatedly despite indication of disinterest or who monitors a person on the Internet or watches or spies in a manner that causes fear of violence or distresses a person will be punished with RI not less than a year, which may go up to three and with a fine. Ordinance:
Recommendation accepted. TRAFFICKING In the light of growing evidence of lakhs of children and adults being trafficked every year for prostitution, slavery, domestic work and organ removal, the panel has recommended a new IPC offence to deal with human trafficking. It has also made employment of trafficked persons punishable. Current:
No provision in IPC Verma committee: Whoever recruits, transports, harbours, transfers or receives a person by using force, threats, abduction or abuse of power for prostitution or other forms of sexual exploitation, forced labour, slavery or forced organ removal (consent of victim immaterial), will be punished with RI not less than seven years, which may extend to 10 years and a fine. Punishment:
More than one person and a minor: RI not less than 10 years to life imprisonment and a fine; more than a minor: not less than 14 years to life and a fine; police officer or public servant complicit in trafficking: rest of natural life. Ordinance:
Accepts the recommendation Current:
No provision Verma committee: Whoever knowing that a child has been trafficked employs him or her will be punished with not less than five years in jail extending up to seven and a fine. Whoever similarly employs an adult will be punished with a term of not less than three years up to five and a fine. Ordinance:
Accepts the recommendation entirely.
Path-breaking provisions
A hash job done in bad faith The ordinance is in extremely bad faith. It pays no attention to the
guidance provided by the Verma committee and fails to hit at the impunity of citadels that perpetuate the climate of rape. The government has simply refashioned its pending Criminal Law Amendment Bill by adding some offences here
and there. Vrinda Grover, supreme court lawyer who deliberated with verma panel Justice
not done The piecemeal Ordinance can only serve to sabotage the intention of providing recourse to victims of violence. Some significant amendments have been excluded. The government has not done
justice. A joint statement issued by several women’s groups
how Ordinance falls short
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‘Bring Ordinance on Bill of Rights too’
Former
Solicitor General (SG) Gopal Subramanium has handled several sensitive assignments in his legal career spanning 32 years. He became Standing Counsel to the Union of India in the Supreme Court in 1983, Additional Solicitor General in 2005 and the country’s top law officer (SG) in 2009. He was special public prosecutor in the Parliament attack case; counsel for the Justice Verma Commission that investigated the security lapses leading to the assassination of former PM Rajiv Gandhi and counsel for the Justice Wadhwa Commission that probed the killing of Australian missionary Graham Staines. Now, as part of the Justice JS Verma committee set up in the wake of the December 16 Delhi gang rape, he has helped review anti-rape laws in a report submitted to the Government on January 23. Excerpts from an interview given before the government passed the Ordinance: The Cabinet has approved an Ordinance to give shape to the Verma panel recommendations. What’s the way forward? Each one of the provisions we suggested could be easily converted into an ordinance and later a law. Promulgation of the Criminal Law Amendment Bill is one part. That will redefine rape, include trafficking, marital rape and sex offences such as stalking and voyeurism into the IPC and address concerns around sentencing and punishment. But the government must simultaneously consider an ordinance on the Bill of Rights we have proposed. This Bill is a must if women have to be granted the protections guaranteed by the Constitution. What should be the government’s top priority to ensure women’s safety? Tracking missing children has to be priority number one. Half a lakh go missing every year. These disappearances create a culture of rape. A missing child’s case is not even registered as an FIR today. The IPC must change to address this lacuna. We are told Delhi police locates 60,000 unidentified bodies every year. Many of them are children. We want every district magistrate to conduct a census of missing children in his area. Trafficking must become an IPC offence and policemen found complicit must be punished with a life term. There are clear linkages between missing children and offences like organ trade and camel jockeying. The committee says a Parliament housing MPs with criminal records can’t pass an effective criminal amendment law. Yes. We have even appealed to MPs charge-sheeted for heinous offences to resign. They pose a clear conflict of interest. It’s time the Representation of People’s Act is amended to ensure that candidates with criminal records don’t enter the poll fray. There’s evidence that political rights of women are seriously impaired on account of criminal elements in election contests. The Election Commission agrees with us. No candidate charge-sheeted for a heinous offence should be allowed to run for office. At present, we wait for his conviction to bar him. Do you think the political class is ready for electoral reform? The credentials of politicians will be in serious doubt if they don’t act even now. We were surprised that Section 8 (1) of the Representation of People’s Act (which talks of barring candidates from elections once they are convicted for heinous offences) doesn’t even list these offences. Conviction under the Prevention of Corruption Act is not part of this Section. We have prepared a list of heinous offences which we hope will be included. You have severely criticised the police in your report. Our report is meant to be provocative. We have testimonies of trafficked children who said the police were complicit in the crime; we studied the Nithari report where the police threatened everyone who went complaining about missing children. We have recommended an IPC offence for breach of command, saying a senior must be punished for lapses committed by his junior. We want punishments for police officers who sabotage investigations and don’t register cases. We demand accountability. How can the police be insulated from politics? The Supreme Court has laid down some guidelines in the Prakash Singh judgment but those are not enough. The role of police will have to be redefined. Officers will have to be appointed on merit so that they serve as role models. Promotions will have happen on indicators like upholding of the Constitution. You have been accused of overstepping your brief in recommending changes to the Armed Forces Special Powers Act. We had no intention of dealing with the law. We were only dealing with errant officers within the forces. We have sought amendment to AFSPA to say that no prosecution sanction would be needed if an armed forces or security personnel is found prima facie guilty of a heinous offence such as a rape. The Army and paramilitary should do their traditional duty and should become accountable for acts that diminish the safety of those they seek to protect. We want the necessity of prosecution sanction for all government officers to go once they are charge-sheeted for heinous crimes. What about khap panchayats? Khap panchayats are unlawful assemblies which block the exercise of free will. They must be barred. We need a law to address honour crimes these khaps perpetuate. Why is compulsory registration of marriages your primary recommendation? Without meaning to offend anyone’s cultural sensitivities, we mean to say that marriage is a civil partnership between two equals. We have recommended marriage registration and sought a provision in the law to enable a judicial magistrate registering the marriage to take on oath an admission from both sides that no dowry has been exchanged. This simple provision can end a lot of evil in society.
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