Memorandum to Chief Justice of Bombay High Court – Complaint of rape against Dr Rustom Soonawalla #Rape #Vaw


6th June 2013

To

The Chief Justice,

High Court,

Bombay

Reference: Concerns of women’s groups regarding the manner in which the complaint against Dr. Rustom Sonawala is dealt with. (Anticipatory Bail Application No. 578 of 2013)

Sir,

We, the members of women’s groups, organisations and individuals are concerned about developments in the complaint of rape filed against Dr. Rustom Sonawala at Khar Police Station on 17.05.2013.

We have been fighting for the rights of victims in cases of sexual assault in Mumbai and various parts of the country for many decades. In view of the increasing number of cases of sexual assault and brutal rapes, laws regarding rape and sexual assault have been recently amended to bring in stringent punishments. After the Justice Verma Committee report and the recent happenings in the country, we felt that the Courts too were taking the issue of violence against women more seriously and sensitively.

 

Background: A 26 year old woman, who was taking treatment from Dr. Rustom Sonawala since August 2012, filed a complaint of rape against him on the evening of 17th May, 2013. The filing of the first information report as well as the medical examination of the complainant was concluded by 7 am of the 18th of May.

After the complainant and her husband returned home on the same day, 18th May, the police called them to Dadar to identify the doctor, as they had located his whereabouts in Parsi colony.  On locating and identifying the accused doctor, the two police personnel accompanied him in his car, asking the complainant to take a taxi. While the complainant as well as the police personnel reached the Khar police station, the accused Doctor managed to abscond while he was being accompanied by the police.

During protests that were being held against the doctor opposite his clinic, one of the neighbours informed some of the protestors, that the same doctor had also molested their daughter in the past.

This has raises several questions:

1.       Why did the police go to arrest the doctor in a taxi for which the complainant was made to pay and not in a police van?

2.       Why has no action been taken against the concerned police personnel and why have they not been suspended?

3.       Given the complicity of the entire machinery with the accused, how do we ensure a fair trial?

4.       How do we ensure that even the forensic and medical reports are not tampered with?

Further, the accused who had not been arrested and was absconding even after 10 days of the crime, on 29th May, 2013, moved the High Court seeking anticipatory bail, even as his application for anticipatory bail was pending before the Sessions Court at Greater Bombay, Mumbai. In the anticipatory bail application, the accused said through his lawyer that his blood and semen sample may be collected and he be given protection from arrest till the anticipatory bail application is finally decided in the Sessions Court. The victim’s advocate argued that the accused was absconding and in his absence no reliefs should be granted to him.
On 29th May, 2013 the Hon’ble Court passed an order directing the accused to deposit his passport and appear before the Khar Police Station. The Assistant Public Prosecutor was asked whether the court should pass an order of not arresting the accused or she would give an undertaking. The Assistant Public Prosecutor said that she would give an undertaking of not arresting the accused till his anticipatory bail was decided by the Hon’ble Sessions Court. The court asked by when they would do the medical examination and the Assistant Public Prosecutor said that there is no provision in law by which this medical examination can be done prior to arrest.  After her refusal to agree to do the medical test the court said it will hear the matter after vacation, that is, on 11th June, 2013 and till then the accused is protected, as the Assistant Public Prosecutor has given an undertaking regarding the same.

Sec. 54  of the Code of Criminal Procedure allows medical examination of the accused at the instance of the accused, if the examination of his body will afford evidence which will disprove commission by him of any offence or which will establish the commission by any other person of any offence against his body.

But the section is very clear that it is after arrest and that the accused will have to make an application to the Magistrate.

We fear that the Order of the Hon’ble High Court sets a wrong and dangerous precedent in terms of rape matters for many reasons.

The Accused was not present before the court and yet he was granted relief, which is never done, especially in rape matters. The medical evidence of semen, blood, injuries cannot be the sole basis of deciding whether rape was committed.  At present the law defines rape by penetration, [that is, penetration is enough to prove rape,]; nowhere does it say that it has to be coupled with the presence of DNA.

The FIR states that there was penetration; the presence of DNA and other factors is corroborative evidence.

If this order becomes final it not only  means that the rape accused can approach the courts to seek this kind of protection, but it will also mean that cases will be closed on the basis of DNA reports. And given the circumstances related above, one cannot be sure that these reports cannot not doctored or tampered with. DNA test can be evaluated during trial.

This also takes us to the conclusion that if traces of semen are not found, there is no rape. This goes counter to the recent Criminal Amendment Act, 2013.

The current situation also gives the accused the freedom to tamper with the evidence and witnesses considering the fact he was able to connive with police and abscond right in their presence.

The Hon’ble Court before giving relief to the Doctor ought to have considered the fact that the Doctor is a fugitive from Justice.

In fact he has obstructed the legal system by conniving with police personnel. It is obvious that in some way he was able to exercise undue influence on the police and thereby he could go absconding right in presence of the policemen.

The Hon’ble Court instead of granting him relief should have instructed him to first submit himself before the investigating team and also should have directed that a complaint be registered against the Doctor as well as the police for subverting the process by using undue influence.

It is indeed a question before all us citizens and women specifically, whether Justice is the prerogative of rich people only.

It is a worrying thought that this sort of judgment will act as a precedent in future cases. This goes counter to the present ethos after the 16th December 2012 rape case and its aftermath.
We hope you will relook at the judgment and do the needful.

Yours sincerely

Forum Against Oppression of Women, Mumbai

Aawaaz-E-Niswan

Akshara

SAKHYA (women’s guidance cell)

Women Research and Action Group (WRAG)

SNEHA

VACHA

CORO (for literacy)

YUVA

Samajwadi Mahila Sabha

Stree Mukti Sanghatana

Anagha Sarpotdar

Kamayani Bali Mahabal

Address: 29, Bhatia Bhuvan, Babrekar Marg, Off Gokhale Road, Dadar (West), Bombay – 400 028

Email: faowindia@yahoo.co.in

cc- Home Minister R R Patil

 

Story behind the ‘Lost Case”- despite social legal support #Vaw #Justice


Mumbai, Majlis Team , March 31,, 2013

As  fourteen year old Priya  had not been getting her periods for some months, her mother took her to Shatabdi, a  public Hospital in the nearby area, for a check up.  During examination it came to light that the child was five months pregnant! A case was not filed, but Priya and her mother were referred to the hospital’s counselling centre where two very young social work students were placed. The students knew about Majlis’ Socio Legal Support for Survivors of Sexual Assault programme.

So, it was by sheer luck that Priya and her mother Anju reached our office. I was one of the first people to speak to Priya after she discovered she was pregnant. With large fluid eyes and a scared look on her face, she revealed that she and her friends would often go to a Pramuk’s  (leader) house to help his wife with house work. About six months ago, when his wife was not at home, this 50 year old man raped her.  He threatened her that if she ever spoke to anyone about it, he would kill her. She had no idea about the consequences which might befall on her, and hence kept silent, and did not even confide in her mother.  It was poignant to watch the child, who had just realised that she was pregnant, trying to cover her stomach with her dupatta.

Anju is an illiterate single mother trying desperately to manage her family by earning a meagre amount as a domestic maid. She is extremely naïve and had never stepped out of her local area. She, and her mother before her, have lived in the same slum their entire lifetime. When faced with the news,  Anju’s only concern was how to quietly get an abortion and end the story. She was extremely afraid that if her son found out all hell would break loose. The pramukh was influential and she did not want any hassles with the police. We tried our best to assure her that if she wanted to complain we would support her in her pursuit of justice… but these words did not make any sense to her.

We asked her to think about what she wanted to do and promised to meet her the next day at the hospital (she did not want us to come home). But the next day Anju did not turn up. Our team were rid with fear at what she would have done with her daughter in order to cover up the incident. Priya’s pregnancy was well past the statutory limit permitting an abortion and we were scared about the danger to her life. There was no way of contacting Anju as she had not given us a number or an address.

Then three days later Anju contacted us. All hell had broken loose as her son found out. The police was informed and an FIR was lodged. The accused was taken into custody, required medical tests were done and statements were recorded. Priya was produced before the Child Welfare Committee and was taken to a shelter home.

Our first challenge was to ensure Priya’s health and well being were being taken care of in the shelter home. We would accompany Anju every week to visit Priya in the shelter home. We counselled Priya to cope with her situation. Priya was not comfortable at the government shelter home,  so we requested the CWC to move her to a home for unwed mothers run by Christian Missionary Sisters in the Western suburbs. The request was granted.

We also counselled Anju and her son to help them cope with the situation. When Priya delivered her baby we were there. Anju could not reach the hospital as she could not travel alone late in the night. Anju still  feels bad that she would not be with her daughter during her delivery. Given Priya’s tender age and Anju’s financial condition, there was no question of keeping  the baby. We had to repeatedly remind the police to collect the blood samples of  the baby, so that the child could be put up for adoption.

Priya returned home and Anju was keen to care for her daughter. But she soon realised that due to sniggering and humiliation from neighbours it was impossible to keep her daughter with her. Everything had changed. Priyas was forced to live in the village where poverty was worse and she was not even given basic nutrition. Anju was desperately trying to collect money to move to another slum. Multiple vulnerabilities were  at play here. Since we do not have a financial assistance project and the State Victim Compensation Scheme was not in place, we could not offer any financial support to the family.

But on the other hand, the case was progressing smoothly. We followed up with the police to ensure that the investigation was on track and the charge sheet filed in a timely manner. Within two and half months of the incident the charge sheet was filed and the matter was committed to the Sessions Court. This was an open and shut case, we were confident of a conviction. This was one of the few cases we have come across where the statements were  recorded by the police without any loopholes, DNA proof was there…. So imagine our shock and utter dismay when the DNA report came negative.

The blood samples of the accused did not match that of the child. The police called Anju to the Police Station and shouted and abused her for two-three hours. We rushed to the Police Station and impressed upon the officer that his duty was only to submit the DNA report to the court and not pass any value judgment.

We met Priya and tried to probe if there was any other person. But Priya, all of fourteen and having gone through the ordeal, with utmost conviction reassured us, that he alone was the  culprit. We believed her.

The Public Prosecutor (PP) accused Priya of having a boyfriend. You cannot trust these teenaged girls, I think this case is ‘fishy’, she said. Her entire approach towards the case changed dramatically after the DNA report. But if Priya had a boyfriend, the news would have spread as this is a thickly populated slum with huts adjacent to each other. Nothing misses the keenly watchful eyes of the  neighbours.

We were extremely worried how the PP, whose job is to defend Priya would conduct the trial. We watched the PP like hawks on every date to ensure she was doing her job.

Priya was brilliant in her examination and cross. We were there by her side to support her. The PP ofcourse did not even bother to meet her before the trial and prepare her.

The defence lawyer used all kinds of underhand tactics during Anju’s cross. He accused her of being a woman of loose character and being greedy and wanting to extract money from the accused. But before he could ask any more embarrassing questions, the presiding officer, a sensitive lady judge, stopped him. This judge is known to follow Sakshi Guidelines, not allow unnecessary questions and most of all, she makes the witness comfortable in court. All this helps bring the best evidence before the Court.

The final arguments were a disaster. The PP argued with absolute lack of interest (She may not have even argued if we were not there). She submitted the case laws and the written arguments that we had prepared, because we insisted. The Defence Counsel argued at length about how the DNA Report was negative and therefore it was clear that the accused had been framed to take revenge because the victim’s mother was not allocated a tenement under the slum rehabilitation scheme.

Judgment: “Not guilty, the prosecution has failed to prove the case beyond reasonable doubt”. The judge also commented that the plea of the defence about revenge appears to be probable!

Immediately after passing the judgement, in an informal tone, the Judge asked our lawyer whether we take up all cases or only ‘genuine’ cases. Before we could recover from the absurdity of this question, the PP replied “Oh, they take up any case that comes to them”.

We would have liked to answer that “not proving a case beyond reasonable doubt does not amount to a ‘false’ case.”  We would also liked to have responded to the  PP, “it is not your job to be judge… just do your best to prove your case, like you would if you were defending the accused in a murder trial, as a private lawyer.” But we kept silent as we have many other rape cases which are pending trial in this court.

We had the difficult task of informing Anju about the judgement. She was calm and took it in her stride. She told us that she was not interested in filing an appeal. She had changed her residence,  Priya was back at school and they were making every attempt to get over this trauma. We felt that despite the set back in court, we had empowered them to cope with the system and move on without leaving deep scars of revictimisation upon their psyche. This, in itself, was a victory! After all, conviction or acquittal is not in our hands. We are here to ensure that fair trial process has been followed.

Ideally, this narrative must end here, but it has a postscript. A few days later, a visibly shattered Anju came to our office. There was a story in the newspaper accusing Anju of filing a false case to frame the accused to get a tenement in the SRA scheme. It is this incident that broke Anju.  She wanted to file a case against the lawyer and the newspaper.  But since no names were mentioned there was nothing we could do. Anju told us that Priya had threatened to commit suicide after seeing the newspaper article. The society finally had its revenge.

The questions that haunt us at the end of this case are – yes, the case could not be proved ‘beyond reasonable doubt’.  But it is also beyond doubt that a 14 year old vulnerable child had been violated and had to undergo the ordeal of childbirth and of giving up the child in adoption. Does the responsibility of the state end with the acquittal, or is there a responsibility beyond, to ensure the well being of this child.  Can state institutions entrusted with the responsibility of protecting children, brand her as ‘a liar’ and wash their hands off her, leaving her to deal with her fate, within the confines of her own vulnerabilities? We find no answers to these disturbing questions within the criminal legal system.

State of Maharashtra  v. Ramesh Dawle  Session Case  No. 349 of 2012

The matter was concluded within a year.

Majlis Legal Centre

A 4/2 Golden Valley, Kalina Kurla Road, Santacruz E, Mumbai 98

Tel: 022 26661252 / 26662394

Website: www.majlislaw.com

Facebook: majlislaw

 

Prime suspect to turn prosecution witness in Shehla Masood case #RTI


Dailybhaskar.com | Mar 30, 2013,
EmailPrintComment
Bhopal/New Delhi: In a fresh twist to the murder of RTI activist Shehla Masood, Bhopal Bharatiya Janata Party (BJP) legislator Dhruv Narayan Singh is all set to be the prime prosecution witness in the case. Singh was the prime suspect in the killing of Masood in Bhopal in August 2011.
Singh was recently quizzed by CBI after which the decision to make him the prosecution witness was taken, said reports. Bhopal-based interior designer Zahida Pervez and her friend Shaba Farooqi were also interrogated by CBI that revealed the BJP MLA had nothing to do with Masood’s killing.
It is to be noted that the BJP legislator was allegedly close to Shehla Masood and interior designer Zahida Pervez, who masterminded her murder.
Reportedly CBI sources said that the BJP MLA was reluctant to become a witness in the case. However, he agreed to their request later.
The flashback
Masood, an environmentalist and RTI activist was shot dead by three hired assassins outside her Bhopal residence in August 2011, allegedly at the behest of Zahida Parvez.
She was constantly living in threat, as revealed by her in an interview before her death.

 

Madhya pradesh HC – Only law dept nod needed to prosecute corrupt govt officers #Goodnews


Saji Thomas l Bhopal, DNA, mARCH 26,2013

In a landmark verdict, the Madhya Pradesh High Court has said that a government servant accused of corruption can be prosecuted even without getting sanction from his/her parent department. The court held that the law department had the final authority to award sanction to prosecute a government servant.
At present, law department waits for recommendations of parent department/General Administration Department (GAD) while awarding prosecution sanction against a corrupt government servant. The verdict is set to put an end to this practice.
Delivering the judgment on March 18, the principal bench of high court said: “…opinion of parent department is not at all binding on the law department while considering the case for grant of sanction”. It further said: “Order granting sanction…has been passed after due application of mind on the basis of material collected and brought before the sanctioning authority”. The bench pointed out: “To seek opinion from the parent department is part of the procedure…and thus not binding”.
The order was passed by the division bench of justice Ajit Singh and justice Tarun Kumar Kaushal in a criminal revision petition filed by M P Chaturvedi, a Superintendent Engineer (SE), associated with Bansagar Canal Circle, Rewa.
The SE had moved the high court against order of special judge Shahdol, which had accepted the prosecution sanction given by law department, on the ground that his parent department had not given any recommendation to sanction his prosecution. According to the SE, under Section 19 of the Prevention of Corruption Act, it was the parent department that was authorised to grant prosecution sanction.
The SE had been booked under Prevention of Corruption Act 1988 and Indian Penal Code (IPC) for alleged irregularities in processing of tenders for a work by Economic Offence Wing (EOW).
“The order will go a long way in prosecuting the corrupt government servants who have been successfully escaping the trial on the plea of not having prosecution sanction from the government”, said advocate Punkaj Dubey, counsel for EOW.

“The court has also affirmed that the prosecution against a corrupt government servant cannot be dropped merely on the ground that there was no prosecution sanction”, he told DNA, quoting from the high court order: “…the trial has reached the state of defence evidence. At such a fag end stage of trial, in our opinion, there is hardly any scope for entertaining a technical objection in respect of sanction”.

Mumbai – First all-women court set up under session judge Vrushali Joshi #Vaw #Justice #goodnews


Bombay High Court in HDR

 

 

March 15, 2013, IE

 

Acting swiftly on a circular by the Bombay High Court issued on International Women’s Day last week, the first all-women court in the city has been set up at the Kala Ghoda sessions court.

It will exclusively deal with crimes against women, and is a move to ensure women victims of sexual offences, who feel embarrassed or intimidated in court particularly because of presence of males, to depose in a relatively stress-free atmosphere considering that the judicial officers and staff will all be women.

“The earlier staff have been transferred to another court, and women staff from other courts have been assigned jobs here,” confirmed chief public prosecutor Kalpana Chavan.

To Mark International Women’s Day on March 8, Chief Justice of the Bombay High Court Mohit Shah had issued the circular through the HC registrar general stating, “Directions have been issued to assign cases involving sexual assault against women exclusively to courts presided over by women judicial officers. It would be desirable that all staff members, that is bench clerks, stenographers, interpreter, typists, peons and police constables are women.”

Sessions Judge Vrushali Joshi, will be relieved of other cases soon and will only deal with matters pertaining to women, confirmed Chavan.

In its circular, the HC stated dealing with cases involving sexual assault on women needs great sensitivity. “In these cases, women are victims of crime and there is a need to enable them to give their evidence in a stress-free atmosphere and without fear or embarrassment,” the circular reads Chavan said special measures will be taken to ensure that children and women feel secure in the court atmosphere and do not hesitate when they depose. “In many cases, looking at male lawyers and court staff, the victim and witnesses do tend to feel intimidated. This arrangement would prove helpful,” she said.

So far, only the six-month-old murder case of corporate lawyer Pallavi Purkayastha (25) has been assigned to the court. Purkayastha, daughter of an IAS-officer-couple, was murdered at her Wadala flat allegedly by 22-year-old security guard Sajjad Ahmad Mughal alias Sajjad Pathan. While the prosecution had attempted to introduce attempted rape in the draft charges, the court had rejected the section. Pathan has been booked for murder and house- trespass. These sections, if proved, could attract even the death penalty.

What it means for victims

Move to ensure women victims of sexual offences, who feel embarrassed or intimidated in court particularly because of presence of males, to depose in a stress-free atmosphere considering that the judicial officers and staff will all be women

HC said dealing with cases involving sexual assault on women needs sensitivity. “In these cases, women are victims of crime and there is a need to enable them to give their evidence in a stress-free atmosphere, without fear or embarrassment,” the circular reads

 

Shehla murder case: Trial adjourned till April 10 #Vaw #RTI


My Friend Shehla Masood

My Friend Shehla Masood

March8, 2013, PTI

The Special CBI Court today adjourned the trial in the Shehla Masood murder case till April 10 as the new CBI prosecutor sought time to secure documents on call details in connection with the case from private telecom companies.

Special CBI Judge Anupam Srivastava adjourned the trial till April 10 after the new CBI prosecutor, Atul Kumar, submitted a request for seeking time to secure original documents on the call details from private telecommunication companies, including Reliance.

The call details, believed to be among the accused and other people connected with the case, were part of the chargesheet filed by CBI last year.

Accused Saba Farooqui’s defence counsel Sunil Srivastava told reporters that he had objected in the court the demand of the new CBI prosecutor, who did not come prepared on the matter and sought more time to delay the trial.

“A change of prosecutor by the investigating agency would not affect the case, and it appeared that the CBI is avoiding appearance of prosecution witnesses as was evident in the previous trials too,” Srivastava alleged.

As the prosecution witness could not furnish original call records documents cited as evidence during the hearing in the case on February 13, the court had then postponed the trial for today.

All five accused in the case – Zahida Parvez, Saba, and three alleged shooters Saquib Ali ‘Danger‘, Irfan, and Tabish were present in the court.

Till now Hemant Shukla, CBI’s senior public prosecutor, was handling the case since filing of chargesheet.

Masood was shot dead outside her house in Bhopal‘s Koh-E-Fiza locality on August 16, 2011.

 

Court adjourns RTI activist Shehla Masood’s murder trial till March 8, the womens day will she get justice ? #Vaw


My Friend Shehla Masood

My Friend Shehla Masood

Published: Wednesday, Feb 13, 2013, 18:14 IST
Place: Indore | Agency: PTI

A special CBI court on Wednesday adjourned till March 8 the ongoing trial in RTI activist Shehla Masood murder case as the prosecution failed to produce original call records documents as evidence.

“As prosecution witness Saidutt Bohre could not furnish original call records documents cited as evidence, the special CBI Judge Anupam Srivastava postponed the trial till March 8 on a request by prosecution,” senior public prosecutor Hemant Shukla said.

Bohre, along with another witness Santosh Jadhav — both employees of mobile service providers — will now depose before the court on March 8, he said.The court will also hear the bail applications moved by alleged shooters Tabish and Saqib AliDanger‘ on March 8, Shukla said.

Besides Tabish and Saqib Ali ‘Danger’, interior designer Zahida Parvez, Saba Farooqui and Irfan are chargesheeted by CBI in the murder case.Shehla was shot dead outside her house in Bhopal‘s posh Koh-E-Fiza locality on August 16, 2011.The call details, believed to be among the accused and other people connected with the case, were part of the chargesheet filed by CBI last year.

Defence counsel Sunil Srivastava, representing co-accused Saba Farooqui, said it was prosecution tactic to delay the trial.”This is surprising the prosecution is not coming prepared for the trial. It had in the past instances also returned its own witness,” he alleged

 

#India-Man gets life term for rape #Vaw #Justice


TNN | Jan 4, 2013, 02.24 AM IST

RAJKOT: An additional sessions court on Thursday awarded rigorous life imprisonment to a 38-year-old man, who was found guilty of raping a 12-and-a-half-year-old minor girl in Bharana village of Khambhalia taluka of Jamnagar district in 2011.

The Khambhalia court has also imposed a fine of Rs 25,000 on Ikbal Juma Chamadia, a widower and father of five children, upon his conviction.

Public prosecutor K D Vadagama said the case was registered at Vadinar marine police station on August 10, 2011, by the victim against Chamdia.

The crime came to light after the victim became six-month pregnant. The victim later gave birth to a baby. “The minor girl’s family members had gone to Bhandaria village in Bhavnagar district as some relative was ill. Ikbal knew that she was alone. He entered her house and raped the victim at knife-point,” Vadgama said.

A DNA test of the minor, her child and the accused confirmed that the baby was that of Ikbal, the public prosecutor said.

Additional sessions judge P V Shrivastav awarded rigorous life imprisonment under Section 376 of Indian Penal Code and two years’ rigorous imprisonment each for IPC Sections 341 and 506(2). The sentence would run concurrently. If the accused fails to pay the fine, he would have to serve two more years in jail. The fine amount would be given to the victim, who had to go through a traumatic experience because of the accused.

 

#India- “Women Against Sexual Violence and State Repression” to the Justice Verma Commission #Vaw #Justice


(Women Against Sexual Violence and State Repression (WSS) is a non funded grassroots effort initiated in November 2009, to challenge the violence being perpetrated upon women’s bodies and societies. We are a nationwide network of women from diverse political and social movements comprising women’s organizations, mass organizations, civil liberties, student and youth organizations, mass movements and individuals. We unequivocally condemn state repression and sexual violence on women and girls by any perpetrator(s). We have conducted fact findings and brought out several reports of cases of sexual violence in conflict areas, notably in Jharkhand, Odisha, and Chhattisgarh; and have collaborated with women’s organizations in Kashmir and the North East in their struggles in such situations. We attempt to support women victims, approach courts and human rights institutions for redressal, and conduct awareness campaigns.)

Representation by  “Women Against Sexual Violence and State Repression” to the Justice Verma Commission.

(Women Against Sexual Violence and State Repression (WSS) is a non funded grassroots effort initiated in November 2009, to challenge the violence being perpetrated upon women’s bodies and societies. We are a nationwide network of women from diverse political and social movements comprising women’s organizations, mass organizations, civil liberties, student and youth organizations, mass movements and individuals. We unequivocally condemn state repression and sexual violence on women and girls by any perpetrator(s). We have conducted fact findings and brought out several reports of cases of sexual violence in conflict areas, notably in Jharkhand, Odisha, and Chhattisgarh; and have collaborated with women’s organizations in Kashmir and the North East in their struggles in such situations. We attempt to support women survivors of such violence, approach courts and human rights institutions for redressal, and conduct awareness campaigns.)

WSS notes with concern that the entire public debate arising out of the recent Delhi gang rape incident has centered round the issues of “enacting a strong law” and “prescribing harsher sentences”. It has failed to recognize more basic issues – the enormous social obstacles encountered in registering complaints, in the conduct of thorough investigation, in the protection of witnesses, in fast and efficacious prosecution and in unbiased adjudication – in other words, the issues of implementation of the law, and the functioning of the police and judicial machinery – which necessarily precede sentencing. The debate has also largely failed to take into account the deeply patriarchal character of our social institutions, and law enforcement machinery which render women vulnerable to violence in the family, in the larger community, in their work places and public places.

In particular, in this representation, WSS would like to focus on the even more serious situation that arises when patriarchal attitudes are reinforced by caste, communal and class inequalities or perpetrated by the state, that is, when sexual violence is inflicted as a part of an assault by a dominant community as in a caste attack or communal riot; or when sexual violence is inflicted on women in custody in a police lock-up or jail or state institution; and when sexual violence is perpetrated by the police, security forces or army. Rapes occur daily in this country and adivasi, dalit, working class women, women with disability, hijras, kothis and sex workers are especially targeted based on the knowledge that the system will not support them when they file complaints of rape. We also note with concern that our suggestions are limited to what will affect women and our suggestions on sentencing must be also interpreted to mean that at least equivalent sentences should be imposed on perpetrators of the same crimes upon children. The current sentencing laws on those are woefully inadequate.

However, our reach in terms of getting input directly from these communities is still limited by the people we know and have worked with, and we hope that our submissions do not contribute to limiting the discussion to those groups and people who have access to information via the internet and English newsmedia, and we hope the Justice Verma Commission carries out wide ranging consultations with women in every locality, with dalit groups, rural groups, labor groups, and groups working on communal sexual violence and sexual violence against adivasi women, groups working in areas in conflict with the state, and groups working on disability and transgender issues.

Here are our suggestions:

A. In regard to Sexual Violence by Police and Security Forces

Defining custodial violence: Any incident of sexual assault by police/ security forces or SPOs accompanying them, irrespective of where it occurs, should be treated as custodial violence since the perpetrators exercise power and control over the people of that area owing to their position of authority. Such sexual assault should be considered to be a case of aggravated assault.

Security of women detainees:  The lack, especially in remote/ small police stations, of women constables (in whose presence women under-trials and prisoners are more likely to be safe), is a serious issue. If there is no woman constable on duty, that particular police station must not be allowed to detain women. Women constables must be present throughout any interrogation of women detainees. Arbitrary or proxy arrests and illegal detention of women and children during search operations in conflict areas, which render women extremely vulnerable, have to stop.

Rule of law:  There must be strict adherence to the procedures and safeguards for protecting women in custody and women should be produced before the court at the earliest opportunity, even before the mandatory 24 hours, to be able to disclose original violations as well as further ill-treatment (if any) while in custody of police or jail authorities. Their families also must be intimated within this time period of their whereabouts.

Detention of women: The rules about arresting and detaining women at night should strictly apply to all women and transgender people, including sex workers. Transgender people must be handled only by women police officers and not male police officers, given the history of custodial violence against them.

Judicial recognition:  The judiciary must take suo moto cognizance of any irregularity in the arresting procedure and delays in presenting the accused before the magistrate. Any non-compliance of the D.K. Basu guidelines and other provisions of the Criminal Procedure Code should attract strict action and accountability from the Court. Once the woman has been presented before the magistrate, it is the responsibility of the judiciary, to ensure that her dignity and safety are ensured and her complaints of violations of her rights addressed. If any violation of the rights of a woman takes place in police or judicial custody, the judiciary should take the strictest action against the perpetrators in a time bound manner, and she must immediately be given the option of being transferred to custody outside the state.

Investigation and registration in cases of custodial or state violence: It cannot be expected that an aggrieved person/family who has been violated by personnel of the police station of her/their area, will go back to report the violation to that very same police station. She should have the option of registering cases in another district or state, and the case must be investigated by an authority not involving local police if they are the perpetrators. Special guidelines must be evolved for such cases along the lines of the NHRC guidelines for encounter killings.

Vulnerability in conflict situations:  There must be a quick and effective response from the district and state administration when a woman shows the courage to make a complaint of sexual violence. Instead, the rape survivor, her family and other witnesses are only further terrorised by the people in authority. The administration should take suo moto cognisance of such complaints, whether they come directly, through the media or any other source. Third-party complaints of custodial sexual violence should also be allowed to initiate the process of safeguarding the survivor behind bars from further assault in custody.

All state-supported private militias and vigilante groups, such as Salwa Judum and others in the conflict areas of Central India, Manipur and Kashmir must be disbanded. Action must be taken against the members of these groups accused of sexual violence and other human rights violations as it would apply to the police and security forces, i.e., treating their cases as aggravated sexual assault.

Registering cases:  The FIR of all victims should be registered, even where the perpetrators are from the Central Armed Police Forces or the Army, and refuge must not be taken under impunity provided under unjust laws such as the Armed Forces Special Powers Act. In particular if a Superintendent of Police receives a complaint that a particular police station has refused to register an FIR, he must be made personally liable to get the FIR registered immediately and to conduct an enquiry against his erring subordinate, with legally enforceable consequences for not doing so within 48 hours of being informed. .

Criminal prosecution: Sexual assault by the Central Armed Police Forces or the Army must be brought under criminal law. In cases of sexual offences, the law should clearly state that the Army has no jurisdiction to prosecute the accused member of the armed forces. The accused must be handed over and all investigation must be done by the police strictly in accordance with the law, and supervised by a senior police officer. The requirement of sanction for prosecution under Sec. 197 of the Criminal Procedure Code should be done away with in cases of custodial sexual violence and other human rights violations.

Facilitating investigation:  Immediate arrest of the accused and suspension of all accused from their posts, once the FIR is registered or suo moto cognizance of the crime is taken, is essential. The accused should not be allowed to exercise any authority in the area where the complaint of sexual violence is made, till the final determination of the complaint. Armed forces personnel and public servants against whom there are serious charges of violence against women, or who have been named in FIRs alleging violence, should not be considered for national awards and military honours or promotions until their names are cleared.

Command responsibility:  In cases of sexual assault committed by State personnel, the authorities higher up in the hierarchy (SP and the Collector or any other senior officer in the chain of command of the Central Armed Police Forces) should be held criminally liable for crimes committed by those under their command or within their control. Ignorance or lack of information about sexual violence committed in his/her jurisdiction cannot be an excuse for inaction.

Sentencing: The sentences for custodial rape and sexual assault must be enhanced compared to the sentences for civilian rape and sexual assault, to act as a deterrent for security officers misusing the power they have derived from being officers of the state.

Speedy investigation: The responsibility of a proper investigation falls on the investigating agency. Any delay, shoddiness, partisanship and inefficiency in collection of evidence, and lack or delay in medical examination etc should be seen as a criminal offence and negligence of duty, and the concerned officers or personnel should be penalised for negligence or dereliction of duty and/or charged with complicity in the crime.

Protection of victims and witnesses:  Protection of victims and witnesses has to be ensured, from the pre-trial to post-conviction stages, in accordance with the recent jurisprudential developments, the Law Commission’s 198th Report of August 2006, and decisions of the Supreme Court.

Liability and damages:  It is the government’s responsibility and duty to protect the rights of women, the responsibility grows manifold when the woman is in the custody of the State. Considering the gravity of the crime, the rape survivor has a right to reparation for all the costs incurred in fighting for justice legally, to recover medically, and to recover loss of livelihood or shelter or even ability to stay in the same area as before, as a consequence of fighting a case against the perpetrator.

Reparative Justice:  The State must be obliged by law to make provisions for free and high quality medical treatment, psychological care, shelter and livelihood in order to overcome possible destitution and social ostracism. This should be done through effective implementation and budgetary support of existing legal provisions and schemes for compensation/ rehabilitation for sexual assault. Such compensation should not be linked to the criminal trial and prosecution. Schemes include, but are not limited to, the Victims Compensation Scheme (brought about through a 2008 amendment to section 357A of the Cr PC) as well as the National Commission for Women’s scheme for assistance and support services to victims of rape.

B.  In regard to sexual violence against marginalized groups or by dominant  groups.

  1. While dealing with the violence against women belonging to marginalised groups like Dalits, Adivasis, denotified groups, religious, gender, sexuality and other Minorities, the dominant position of the perpetrators must be kept in mind and such cases should be probed under the specific laws applicable to these atrocities. Sexual assault in situations of conflict based on community, ethnicity, caste, religion, gender, sexuality and language, ought to be treated as specific circumstances of aggravated sexual assault.
  2. Since there are specific kinds of sexual violence documented to be specifically perpetrated against dalit women, such as parading naked, groping, tonsuring of hair and mutilation; against minority community women during communal riots such as mutilation the genitals and womb, cutting breasts; against transgender women like stripping, burning or mutilating the genitals, forcibly cutting hair, stripping and/or redressing in clothes to fit assigned gender, confinement, rape by insertion of objects – all of which are intended to sexually assault, degrade or humiliate women who are so targeted, these specific offenses should be defined along the scale of aggravation with specific punishments which are not dependent on the discretion of the judge.
  3. Meeting the burden of proof that an offence was committed with an intent to humiliate and intimidate a member of the Scheduled Caste/Tribe in the Prevention of Atrocities Act has been made impossibly difficult leading to low rates of conviction. When the perpetrator is of a dominant caste/class/religious/gender/sexuality group and the survivor of assault is of an oppressed group, the power difference will always mean that the police, criminal justice system, media, and public will be fearful of taking the side of an oppressed community. This means that dalit, adivasi, religious and gender/sexuality minority community women, and women with disabilities are routinely targeted for the reason that it is harder for them to fight a legal case against the perpetrator. Thus when the perpetrator is of a dominant caste/class/religious/gender/sexuality group and the survivor of assault is of an oppressed group, these acts should be defined to automatically be in place and the burden of proof that such targeting did not take place should be on the perpetrator.
  4. Refusal to file an FIR based on caste, class, gender identity, profession, or disability of the survivor must be legally punishable through reporting to superior police officers or officers at other police stations. Once such a complaint is made, the  officer who hears it must be legally liable to file an FIR immediately and conduct an enquiry against the police officers who refused to file the FIR. Likewise refusal to provide medical care on these grounds should be prosecutable by law.
  5. Acts like the Karnataka Police Act and the Hyderabad Eunuch Act that place the entire transgender community under suspicion like the colonial Criminal Tribes Act, and demand their routine reporting to the police act as a vehicle for police harassment and sexual violence against transgender women. These should be immediately repealed.
  6. Khap Panchayats, casteist-communal organizations and other kinds of vigilante groups are responsible for spreading and normalizing misogyny. The perpetrators of honour killings, honour-related crimes and other moral policing, including those who abet this brutal crime, must be promptly prosecuted and awarded severest punishment. Specific legislation must also be introduced to punish the full range of violent and abusive acts that attempt to restrict the choices of women including socio economic boycott, expulsion from the home or community, etc.

C. In regard to the definition of sexual assault.

Expansion of definition of sexual assault: The expansion of the definition of penetrative sexual assault under Sec. 375 IPC, beyond peno-vaginal penetration (rape) as proposed in the Criminal Law Amendment Act is a step in the right direction.  It is imperative that the definition of sexual assault is broad enough to include anal, oral rape, digital rape, rape with objects etc. and also includes sexual assault against transgender people. Section 377 should be repealed as it criminalizes consensual same-sex relations and all its provisions for punishing

Gap in law of sexual offences: However, there continue to be serious gaps in the codification of crimes of non-penetrative sexual assault. The gap between ‘outrage of modesty’ (S. 354 IPC) and ‘penetrative sexual assault’ remains large. We believe that sexual crimes form a continuum, and that the graded nature of sexual assault should be recognized, based on concepts of harm, injury, humiliation and degradation, and by using the well-established categories of sexual assault, aggravated sexual assault, and sexual offences.

‘Outraging modesty of a woman’ to be replaced with ‘violation of bodily integrity:  S.354 and S. 509 IPC, which contain archaic notions of ‘outrage of modesty’, ought to be repealed, and a clear gradation of offences and punishment as mentioned above should be inserted. We believe that ‘sexual assault’ should rest firmly on the concept of violation of bodily integrity and dignity, and sexual harassment should be defined as it is in the Vishaka Guidelines.

New sexual offences to be defined: New crimes need to be formulated to punish acts of attempt to rape, stripping, parading naked, groping, tonsuring of hair and mutilation which are intended to sexually assault, degrade or humiliate women who are so targeted. Further stalking, flashing, gesturing, blackmailing as well as sexual harassment must be codified as crimes under the rubric of sexual offences. These should include any electronic and other forms of technology which promote rape as a game, promote electronic stalking or forced viewing of pornography, etc.. We welcome the introduction of a specific offence for acid attack.

Gender neutral sexual assault: The formulation of the crime of sexual assault as gender neutral in all circumstances, as proposed in the Criminal Law Amendment Act, makes the perpetrator/ accused also gender neutral, i.e a woman or man can be accused of sexual assault. We believe that the perpetrator has to remain gender-specific and limited to men as perpetrators, as there is no empirical evidence to support a finding to the contrary, and in light of this gender neutrality of perpetrator can be used to file false cases against women who complain of rape. Hence we strongly oppose the gender-neutrality clause in relation to perpetrators under Sec. 375 IPC.

Gender neutrality of the victim: The survivor of sexual assault should be treated as gender neutral with respect to the law, even if the perpetrator is still defined as male. With respect to all forms of violence, the victims/survivors should not be described just as women, but as ‘person’, as transgender people face immense targeted sexual assault and in some cases of state and custodial violence the victims can also include men. In cases of abuse of children also children of all genders are targeted.

“Purpose”: We also express a deep problem with the expression ‘penetrate for a sexual purpose’ in Sec 375(a) of the proposed Criminal Law Amendment Bill 2012. We maintain that any contact without consent is what must be punished and the intent of the perpetrator is both irrelevant, and impossible to prove.

Consent:  Consent must be clearly defined as verbal agreement which can be withdrawn at any point during sexual activity. Initiation of sexual activity or sex work is not an invitation to rape or sexual assault and battery. The lack of marks on the body can not be used as evidence of consent (as in the Suryanelli case) because sedation, rape based on threats of retaliatory violence, and rape where the perpetrator holds economic, caste, communal, custodial or state power over the survivor can all be perpetrated without leaving signs of force.

No exception to consent rule for marital Rape: Rape within marriage should be recognized and should be strictly penalized.  The punishment for rape should be the same irrespective of whether the perpetrator is married to the survivor of rape or not.

No exception to consent during medical procedures: Consent should be required even when penetration/genital exam of a patient by a doctor occurs for “proper hygienic or medical purposes” which is currently a defined exception for rape under the Criminal Amendment Bill 2012. Unless the patient is unconscious, doctors must have the consent of a patient for any form of penetrative or genital physical exam, and punishment for doctors abusing their privilege as doctors should be higher than for civilians.

No exclusion of prosecution of Public Servants: We suggest an exclusion of the application of S. 45 and S. 197 Cr PC to the provisions of sexual assault, in order that the existing widespread impunity for sexual assault where it is committed by public servants, is ended.  We believe that no sexual assault can ever be construed as being perpetrated “in discharge of official duty” and therefore the statutory requirement of prior sanction from the government for prosecution of public servants ought not to be extended to the crime of sexual assault;

Age of consent: The age of consent should be kept at 16 years of age since the reality of caste, communal and moral policing particularly when it comes to young people from different religions and castes falling in love and running away, makes misuse of the age of consent law possible to  prosecute young lovers who go against parental dictates of ‘arranged marriage within the fold of one caste/religion’.

Consent during sex work: Rape during sex work must be recognized explicitly as a sexual offence.  Sex work should be decriminalized so that what takes place without consent can be clearly distinguished from the specific acts the sex worker is paid for and has consented to.

Inclusion of women in drafting process: Local womens’ groups in India, including those of adivasi, dalit, religious minority women, transgender women, self help groups  and woman panchayat representatives must be consulted in drafting laws upholding women’s rights at home and in public.

D. In regard to pre-trial, trial and evidence procedures.

  1. SOPs like those of Delhi police should be reviewed to ensure that they reflect a gender sensitive and meticulous approach to investigation and officially adopted by all police departments in states and UTs, and should be made publicly accessible. Violation of the SOP by police should be made punishable by law, especially with respect to refusing to file FIRs.
  2. The two finger test and checking of old tears hymen which are widely used during medical examination of the rape victims to determine whether they are ‘habituated to sexual intercourse’ or not, must be explicitly barred and only fresh damage relevant to the sexual assault in question should be recorded. Likewise build and health of the survivor of rape and presence of marks on her body to determine whether she had or could have “resisted the assault” is irrelevant as mentioned above – use of threats, weapons, sedation, etc can all be forms of coercion that do not leave marks or allow the survivor to fight back. Testing should be done by women doctors if possible, and if not by any doctor the survivor is comfortable with –no survivor should be turned away for lack of a female doctor, and the survivor should be able to be accompanied by a chosen family member at all times during medical tests. Hospitals turning away survivors of sexual assault should be punishable by law. Victims should not be subjected to lie detection tests as is done in some parts of the country, and forensic tests must include DNA tests for which central laboratories and a DNA database must be set up to which samples can be mailed.
  3. Police personnel and all state officers who deal cases of sexual assault must undergo compulsory sensitization about handling these cases, so that they do not traumatize the survivor of assault with irrelevant and traumatic questions or statements of judgement or dismissal. They must also be sensitized specifically to deal sensitively with survivors of sexual assault who are dalit, adivasi, religious minority, transgender women, sex workers, and women with disabilities. Each complaint of sexual harassment and molestation must be taken seriously and failure to file an FIR must be punishable by law.
  4. Women police officers should be available and visible at a women’s help desk in every police precinct for each step of processing a sexual assault or harassment complaint, although no survivor should be turned away for lack of a female police officer. The number of women at all levels of the police force must increase to 50%, and within this dalit, adivasi, religious, gender and other minority women police officers should be represented according to their proportion of the local population. For their retention, proper housing, women’s toilet, and training facilities as well as a cell to address sexual harassment complaints within the police force must be made available. A minority of policewomen deployed to ensure safety for women prisoners are not able to be effective if they are pressured by a male majority in their workplaces.
  5. Trials in rape cases should be concluded within a 90 day period, with trials postponed only to the next working day and without any unnecessary delays. All pending cases of rape (all India-100,000, Delhi 1000) should be dealt with by specially constituted courts with both rural and urban accessibility within 90 days.
  6. Trials pertaining to sexual offences should be conducted as far as possible by women judges, and in cases of SC/ST or communal violence, by women members of the minority community. The number of judges, especially women judges, must also be increased in lower level courts and vacancies in these courts must be filled up. A special cadre of Public Prosecutors must be trained to prosecute cases of sexual assault. The trainings should include understanding of the crimes of sexual assault, gender sensitivity in the conduct of the trial and a comprehensive understanding of the laws relating to sexual assault.
  7. There should be specific provisions for recording the testimony of disabled survivors of assault or witnesses. Cases involving sexual assault against disabled women often end in acquittal as their testimony is either not recorded at all, or is recorded without the help of independent interpreters.
  8. Guidelines for victim and witness protection should be available for victims of violation of bodily integrity (outraging the modesty in the current law) as well as all forms of sexual assault, and bail should be canceled for cases where intimidation can be shown.
  9. In trials of sexual offences, the victim/survivor, her family members or members of women’s organizations representing the complainant should ordinarily be permitted to engage a counsel of her choice to assist the prosecution. In addition free legal, medical, psychological and rehabilitative services should be made available to enable working class women to pursue legal justice.
  10. Even in an in-camera trial, on the request of the victim/survivor, her representatives should be permitted to remain present.
  11. Guidelines must be laid down for the cross examination of a survivor of sexual violence, particularly highlighting the changes in the CrPC sections which now do not allow character assassination or looking at past history of the survivor.
  12. There should be a strict code of conduct and binding jail-time punishment for officials holding public office, including ministers etc while commenting on cases pertaining to sexual assault or rape. Judges who deal with sexual assault/ rape cases should be sensitized and held accountable with legally enforceable punishments for dismissing rape cases based on violating the constitutional right of every person to a fair hearing – by disbelieving the rape of a dalit woman as in the Bhanwari Devi case, or for suggesting extra-legal remedies or marriage to the accused instead of strictly pursuing legal justice for the crime.
  13. The pending cases against security forces, police and wardens of Nari Niketans and other protective homes for girls and women must be dealt with on a priority basis so that instead of inflicting further violence these institutions play their role of providing thorough investigation and appropriate support.
  14. The chosen gender of a transgender or intersex person should be respected during trial.  Transgender people are often punitively raped for crossing the boundaries of assigned gender and the rape trauma is compounded by their bodies and minds being handled in ways to remind them of their assigned gender. The trial should not further increase that aspect of the trauma.
  15. A date base of cases of sexual assault be maintained online and be publicly accessible, to track the implementation and performance of the law in each registered case, to help identify weak links. The name of the survivor must not be mentioned, but the neighborhood where the assault took place, and the progress on the case must be made publicly known on the internet and must be available at each local police station.
  16. Any media establishment that publishes the name or contact information of a survivor of rape should be routinely punished. Likewise there should be punishment for media reports that witness and broadcast images of sexual violence without having first immediately contacted law enforcement authorities. There should be publicly available letter boxes and an online site where reports on such media misuse can be directly sent.

E. In regard to punishment for rape.

In cases of aggravated sexual assault, punishment should be for life imprisonment with no remission or parole.

Sentences should run consecutively instead of concurrently in sexual crimes.

Sentencing should be spelt out as much as possible for different extents of punishment, degradation, harm and repetition of the act of sexual violation, so that judicial discretion is limited to small difference in the nature of the crime rather than focusing on the socioeconomic standing of the survivor and perpetrator.

WSS does not support death penalty or chemical castration as a punishment for rape. We need to evolve punishments that act as true deterrents to the very large number of men who commit these crimes. Cases of rape have a conviction rate of as low as 26% showing that perpetrators of sexual violence enjoy a high degree of impunity, including being freed of charges.  Our vision of justice does not include death penalty, which is neither a deterrent nor an effective or ethical response to acts of sexual violence. We are opposed to it for the following reasons:

  1. We recognise that every human being has a right to life. We refuse to deem ‘legitimate’ any act of violence that would give the State the right to take life in our names. Justice meted by the State cannot bypass complex socio-political questions of violence against women by punishing rapists by death. Death penalty is often used to distract attention away from the real issue – it changes nothing but becomes a tool in the hands of the State to further exert its power over its citizens. A huge set of changes are required in the system to end the widespread and daily culture of rape.
  2. There is no evidence to suggest that the death penalty acts as a deterrent to rape. Available data shows that there is a low rate of conviction in rape cases and there is a strong possibility that the death penalty would lower this conviction rate even further as it is awarded only under the ‘rarest of rare’ circumstances. The most important factor that can act as a deterrent is the certainty of punishment, rather than the severity of its form.
  3. As seen in countries like the US, men from minority communities and economically weaker sections make up a disproportionate number of death row inmates. In the context of India, a review of crimes that warrant capital punishment reveals the discriminatory way in which such laws are selectively and arbitrarily applied to disadvantaged communities, religious and ethnic minorities. This is a real and major concern, as the possibility of differential consequences for the same crime is injustice in itself.
  4. The logic of awarding death penalty to rapists is based on the belief that rape is a fate worse than death. Patriarchal notions of ‘honour’ lead us to believe that rape is the worst thing that can happen to a woman. There is a need to strongly challenge this stereotype of the ‘destroyed’ woman who loses her honour and who has no place in society after she’s been sexually assaulted. We believe that rape is a tool of patriarchy, an act of violence, and has nothing to do with morality, character or behaviour.
  5. We also believe the law should punish rape with murder more strongly than rape without murder, so that the law does not provide an incentive for the perpetrator to kill the survivor of rape.
  6. An overwhelming number of women are sexually assaulted by people known to them, and often include near or distant family, friends, husbands, workplace superiors and partners. The awarding of death penalty rests on the logic that rape and battery are rare events. Awarding equal punishment for the same crime would lead to a large portion of the male population being awarded death penalty and any penalty has to be feasibly equally applied to the entire population of perpetrators.
  7. With death penalty at stake, the ‘guardians of the law’ and the perpetrators will make sure that no complaints against them get registered and they will go to any length to make sure that justice does not see the light of day. Who will be able to face the psychological and social consequences of having reported against their own relatives when the penalty is death? In cases of sexual assault where the perpetrator is in a position of power (such as in cases of custodial rape or marital rape or caste and religious violence), conviction is notoriously difficult. The death, penalty, for reasons that have already been mentioned, would make conviction next to impossible.

Chemical castration is also a problematic sentence since

1. It violates the fundamental right to bodily integrity and this can not be violated by the State.

2. It misrecognises much of the violence in rape. Assault and battery are carried out with fists/rods/acid and other weapons and chemical castration may not prevent a perpetrator from using these

3. We feel that this penalty would also, like death penalty, not be awarded equally to all perpetrators irrespective of class, caste, religion and socioeconomic background, but be used selectively in some cases.

F. In regard to the urgent need for making workplaces and homes of women more safe.

  1. The Committees against Sexual Harassment which are to be constituted in various state and private establishments, including informal sector worksites, houses where domestic workers work, construction sites, homes where women gather to do piece-work or beedi/agarbati rolling, sex work sites, and NGOs, should be constituted with priority and urgency as per the Vishakha judgment. Renewal of formal workplace licences to employ workers should be made contingent on this. The said Committees should function independently and effectively and not be nominated by the employer to avoid conflict of interest, and they should create an atmosphere of no tolerance to sexual harassment. This would go a long way in ensuring dignity and empowering women at their workplace.
  2. Section 14 of the proposed 2012 amendment to the sexual harassment bill which punishes a woman for a so-called false complaint must be scrapped, as must clause 10 suggesting a conciliation as the first step – this would amount to covering up sexual harassment which is a criminal offence. The Bill should also take the caste, class and religious dimensions of the perpetrator and the victim into account, and mandate that women should not be forced to comply with gender specific dress codes and women employees should be able to able to choose their dress code.
  3. It is a common observation that the Domestic Violence Act is poorly implemented in most States with government servants being given additional charge of Protection Officer, lack of proper Shelter Homes for women victims of domestic violence, abuse within those shelter homes and on the streets for those rendered homeless by domestic violence, and poor understanding of judicial officers of the powers of civil injunctions and specific reliefs available to them
  4. Women employees working in night and early morning shifts should be
    provided safe public transport facilities by the employer, and both public and private forms of transport must be effectively regulated and monitored for safety by the government. The routes from public transport sites to housing areas must be well-lit and tinted window vehicles should be strictly monitored.
  5. There should be an expansion of the public transport system and the government should bring a public-transport-for-women-on-demand facility for any neighborhood with a number of working women coping without public transport, including dispersed adivasi settlements and urban slums, functioning in the same manner of response to demand as anganwadi-on-demand. Strict implementation of women’s general compartment in all trains and women’s seats in all inter-city buses is necessary.
  6. The number of affordable working-women’s hostels to ensure safe accommodation for single working women must be increased. All out-station girl students studying in colleges must be provided cheap and safe accommodation by their respective institutions.
  7. Due to its impact on physical and mental health and a high degree of mortality, rape is also a public health issue. The public health workforce (ASHA and ANM workers) need to be trained in sensitizing at the family and community level in destigmatizing rape-survivors, enabling them to file FIRs and access legal provisions, providing medical care and counseling, and encouraging women to speak out and seek justice. The ASHA workforce should also have dalit, adivasi, religious, gender and other minority women represented among them according to their presence in the local population to enable local women to feel comfortable reporting sexual assault. All public hospitals must be trained and equipped to immediately file an FIR and conduct a proper preliminary medical exam on behalf of patients who have survived rape For this the budget allocation of the government to the women and child, health and public transport departments must be accordingly increased by the next Budget.
  8. Effective and 24 hour functional women helpline and other emergency services should be provided around the clock and should be well advertised by video and audio messages in rural and urban areas. Emergency telephones to this helpline must also be available at all bus and train stations. Calls should be addressed around the clock by enough specially trained staff to meet the demand, and calls should be automatically recorded for later review, and the staff should be able to dispatch immediate vehicles to assist women facing an emergency. Disciplinary action must be taken against staff for inappropriate or inadequate responses.
  9. The state should take over agencies that provide women domestic workers, the conditions of service of domestic workers must be laid down and effectively implemented, and complaints of sexual violence made by them promptly redressed.
  10. Institutions such as the National Human Rights Commission (NHRC), National Commission for Schedule Castes (NCSC), National Commission for Scheduled Tribes (NCST), National Commission for Minorities (NCM), National Commission for Women (NCW) and the corresponding State Commissions, created for safeguarding constitutional provisions and protection of vulnerable groups must be more proactive. They should be made to respond to all complaints lodged with them in a time-bound manner. There should be systematic and regular review processes by independent bodies involving women’s groups, put into place to audit the work of these institutions
  11. The system of shelters for women should be greatly expanded, and every state-based shelter home for women, nari niketans, remand homes, juvenile delinquent homes, shelters for disabled children, orphanages, as well as schools, prisons and areas under army patrolling or combing operations should have a schedule of inspections to probe for ongoing sexual harassment or assault by committees whose members are independent of the government. The people confined within should have the right to insist on 1 person whom they trust outside jail to accompany the team when it does these surprise checks
  12. The current policy of clearing the streets of vendors, closing shops by a specific hour of night and chasing away other people who occupy public space at night makes the street more unsafe for women. This policy should be stopped as a greater presence of people and well-lit public areas at night are essential in reducing the danger to women traveling to and from work as well as homeless women.  Women should be given priority in being given vendor licenses and employment in public transport.

G. In regard to Discouraging Patriarchal Culture.

  1. All those persons against whom charge sheets have been filed for rape cases must be tried and either cleared of those charges, or sentenced and barred from contesting elections for public bodies by the Election Commission.
  2. Advertisements, movies and public materials that condone, trivialize or misrepresent violence against women and sexual harassment should be banned.
  3. Women have been carrying out powerful movements against liquor which is found to be connected to increase in domestic violence and incidents of sexual assault. The demands made by women in their local areas must be responded to by local authorities, who must act against the liquor mafia.
  4. Restrictions on movements and intimidation of women’s groups and democratic rights groups, while conducting fact-findings of incidents of sexual and other forms violence in conflict areas, have to stop. Repression, labelling and intimidation of women activists and human rights defenders must end.
  5. Mass visible and audio messages on what constitutes sexual offenses and what are the facilities available to address it and punishment for the same, should be displayed in all public vehicles and public places such as markets, bus stands, train stations, etc. These areas should be accessible by people with disabilities to reduce their vulnerability due to being confined at homes or shelters.
  6. School curricula should include basic information on how stalking, harassment, and touching another person without consent constitute unacceptable and illegal behavior, and the government should set up a training module for at least 2 staff members from each school to help children to report cases of domestic sexual assault. Such teaching should also happen in prisons. Caste, communal, gender identity and disability based discrimination against dalit, adivasi, religious minorities, gender and sexuality minorities, people with disabilities, homeless and working class people, etc. should be clearly and unequivocally taught to be unacceptable. This will greatly decrease their vulnerability to sexual assault.
  7. All departments that deal with disability pension administration should have a clearly marked desk where people can go to report sexual harassment and assault. They as well as police stations should carry information for complaints procedure and all awareness material in accessible formats to cater to people with disabilities  (Braille, audio, audio-video with same language sub-titling, large print, easy to read and pictorial guidance and availability of sign language interpreters). The inaccessibility of police stations and their present lack of capacity to interpret complaints from women with disabilities must be addressed in the long run.
  8. The legal age for young girls, transgenders, and boys to legally leave their biological homes and exercise autonomy as individuals, due to abusive situations at home should be lowered to 16 to give them enhanced protection against false cases filed by families and family violence. They should be able to chose a guardian instead of having to go to a juvenile detention home.
  9. Implement 50% reservation for women in elections at all levels, with reservation for minority communities in proportion to their presence in the local population.
  10. Create a National Commission to monitor implementation of the CEDAW.

WTF news-Robbed Rs 100 ( 2$) ? stay in jail for seven years


1 Feb 2012
COIMBATORE: Two Coimbatore youth have been awarded seven years in jail each for waylaying and robbing a man of Rs100 and a wrist watch two years ago.

Handing down the punishment on Tuesday, the Fourth Additional Sessions Court judge A K A Rahman also imposed a penalty of Rs10,000 on the two.

According to the prosecution case, on the night of February 7, 2010, the accused Rajendran and Askar Ali, both aged 27 and residents of Selvapuram, had brandished a knife and waylaid one Saravanan who was proceeding to a pharmacy to buy medicines. They relieved him of Rs100 and a watch on a street in Selvapuram Muthusamy Colony.

Additional Government Pleader M K Elangovan argued the case for the prosecution during the final trial.

The conviction of the two youth set tongues wagging outside the court hall as people felt that Rs100 was too paltry a sum warranting seven years’ imprisonment.

However, senior lawyers pointed out that in the eyes of law the quantum of punishment is not proportionate to the amount robbed.

“As per Sec 392 of the IPC, whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to 10 years, and shall also be liable for fine. The judge has rightly invoked this provision,” a senior lawyer explained.

The lawyer added that the accused had threatened the victim at knife-point, which was a serious offence.